Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8 - Right to respect for private and family life);No violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković

The applicants were born in 1950, 1983 and 1975, respectively, and live in Azerbaijan, Norway and Sweden.

The first applicant is the widow of Aslan (also spelled Oslan) Aliyevich Maskhadov. The second and third applicants are their children.

Aslan Maskhadov, born in 1951, was one of the military and political leaders of the Chechen separatist movement during and after the armed conflict of 1994-96.

For some time after the elections held in Chechnya on 27 January 1997 he was President of the so-called Chechen Republic of Ichkeriya.

In 1999 Chechen armed groups began a military incursion into Dagestan.

On 18 February 2000 a criminal investigation was initiated by the Russian authorities on suspicion of military revolt and sedition in this connection.

On 2 March 2000 Aslan Maskhadov acquired the status of accused in this case.

On the same date the investigator decided to detain him. Since the whereabouts of Aslan Maskhadov could not be established, the investigator placed his name on the national and international lists of wanted persons.

On an unspecified date the authorities also opened a criminal investigation into terrorist activity in the Nadterechnyy District of the Chechen Republic in 2000.

On 1 September 2004, the day of the terrorist attack on a school in the town of Beslan, the authorities instituted criminal investigations in connection with this event on suspicion of hostage-taking, murder, illegal arms trafficking and terrorist acts.

On 8 September 2004, having collected various items of evidence indicating the involvement of Aslan Maskhadov in masterminding the attack, which left some 334 people, including 86 children dead, the investigator formally identified him as an accused.

On the same date Aslan Maskhadov’s name was again put on the national and international wanted lists.

The applicants alleged that repeated attempts on Aslan Maskhadov’s life had taken place in 1996, 1998 and 2000 and that these attacks had been “conducted by or with the connivance of State agents”.

According to the applicants, on 9 September 2004 the Russian Federal Security Service (Федеральная Служба Безопасности РФ – “the FSB”) offered 300 million Russian roubles for information leading to his arrest.

It appears that prior to 8 March 2005 Aslan Maskhadov lived in hiding as a fugitive in various unspecified locations in Chechnya.

On 8 March 2005 between 9 and 10 a.m. the FSB conducted a special operation aimed at tracking down and arresting members of unlawful military formations at 1 Suvorov Street in Tolstoy-Yurt, a village in the Groznenskiy Selskiy District of the Chechen Republic.

According to the authorities, the operation resulted in the discovery of a concealed underground shelter and the arrest of four individuals, including V.U. Khadzhimuradov and V.L. Murdashev, who were Aslan Maskhadov’s bodyguard and press officer, respectively.

The authorities also discovered the corpse of an “unidentified person” bearing traces of injuries. On the same date the four detained individuals identified the person as Aslan Maskhadov.

In the afternoon of 8 March 2005 investigator Sh. from the Investigative Unit of the Directorate of the FSB in the Chechen Republic (следователь следственного отдела Управления ФСБ России по Чеченской Республике) arrived on the scene and, in the presence of two witnesses and with the assistance of a military mining specialist, conducted an inspection of the house and grounds.

The resulting report, containing numerous colour photographs, described the property in detail, including the location of the house, the adjacent structures and the concealed underground shelter.

It further described the corpse in the following manner:

“... In the middle of the aforementioned concrete platform, under the canopy, was the corpse of an unidentified man, apparently resembling Aslan Maskhadov. The corpse was lying on its back with arms and legs spread wide. There were socks on the corpse’s feet. The corpse was shoeless. The person was wearing dark-grey trousers heavily stained with dirt. The left trouser leg was rolled up. Grey pants with black vertical stripes were visible. The upper part of the body was naked, and no visible signs of injuries were detected. There were some remnants of rolled-up clothes (blue T-shirt and dark-blue jacket) on the right forearm and left wrist. The corpse’s eyes were closed; the person had a moustache and beard of medium length. There was an entry hole in the area of the right temple, bordered by dried blood of a dark-brown colour. There was dried blood on the left outside ear. ...”

The report also described various items which had been found at the scene, apparently piled up in the yard of the property. Among these items were a number of arms and ammunitions, including four AK-74 automatic rifles, two Stechkin machine pistols, one PM semi-automatic pistol, six grenades and an explosive belt. In addition, there were a few laptop computers and portable radio transceivers with accessories.

With regard to the concealed underground shelter, the report noted its location and mentioned that it was three metres deep and was equipped with a metal ladder with five steps. The floor of the shelter was covered with rubble due to the fact that the entrance had been broken down using mechanical force. No detailed inspection of the shelter was conducted because of the “justified fear that the shelter may have been booby-trapped”. The report contained two photographs of the entrance to the shelter.

It appears that on the same date the corpse was transported to the military base in the village of Khankala.

According to the applicants, on 13 March 2005 the authorities blew up the house and its cellar.

The respondent Government submitted that the case file did not contain any information about the alleged destruction of the house in question on that date.

It appears that the circumstances of the death of Aslan Maskhadov were investigated by the authorities of the Prosecutor General’s Office in the context of the criminal investigation in case no. 20/849 (the Beslan school massacre, see paragraphs 15-17 above).

On 9 and 10 March 2005 investigator K. from the Prosecutor General’s Office (следователь Генеральной прокуратуры РФ) examined the corpse and other items found at the scene and decided that a number of expert examinations should be carried out. On 9 March 2005 the corpse of Aslan Maskhadov was identified by his bodyguard V.U. Khadzhimuradov and R.S. Maskhadov, apparently one of Aslan Maskhadov’s relatives.

On 9 March 2005 investigator K. conducted an examination of the corpse in the presence of two witnesses and with the participation of Deputy Prosecutor General Sh., two medical experts Mal. and Mat., and prosecutor S. It appears that both video and photographic records of the examination were made. The report contained the following description of the injuries found on the corpse:

“... In the right temple area, two centimetres above the right eyebrow and five centimetres towards the outer edge of the right eye there is a round-shaped wound one centimetre in diameter. On the edges of the wound are grazes one and a half to two millimetres wide. The wound is gaping. There is an irregular oval-shaped bruise surrounding the wound measuring three and a half to four centimetres. ...

... In the left cheekbone area, four centimetres towards the outside of the bridge and half a centimetre below the lower edge of the left eye socket there is a wound of an irregular star-like shape measuring between 1.2 and 1.7 cm. The wound has six rays pointing at twelve, three, five, six, eight and nine o’clock, assuming that the body is placed in a straight vertical position. ...

... In both eye-sockets there are crimson-violet bruises measuring 3.5 to 4 cm on the right side and 1.8 to 4.5 cm on the left side. ...

... In the parietal region there is a wound of an irregular round shape with six rays at one, three, five, seven, eight, and eleven o’clock. The wound measures between 1.4 and 1.10 cm. ...

... In the right scapular area along the central scapular line, in the area of the fifth intercostal space and 131 cm from the soles of the feet, there is a round-shaped wound with its longitudinal axis pointing at four and ten o’clock. The right edge has grazes of up to four millimetres with a sloped wall. The opposing left edge has grazes of up to two millimetres with a sapped wall, the wound is open ...”

On 10 March 2005 investigator K. ordered a forensic medical examination of the corpse, having put fourteen questions to the expert (see the list of questions and answers below). On the same date between 2 and 4 p.m. a medical expert, NK, carried out the examination of the body. The resulting report, dated 24 March 2005,’s conclusions, together with the answers to the fourteen questions put by investigator K.

The forensic diagnosis was the following:

“Firearm injury. Multiple (five) gunshot perforating wounds to the head (four) and one blind multi-trauma penetrating wound to the chest and the upper extremity:

– on the head: four perforating wounds penetrating the cavity of the skull with a onesided buttonhole fracture to the left temporal, left parietal and cervical bones and a multi-fragment fracture to the frontal bone, with damage to brain tissue, haemorrhaging in its ventricles and above and beneath the hard and soft brain tunic, a perforating fracture to the big wing of the main bone on the left, a fracture to the left cheekbone and haemorrhaging into the soft tissue of the head;

– on the chest and the upper extremity: one blind multiple wound to the chest perforating the pleural cavities, with a fracture of the seventh right rib and damage to the lungs, a double-sided buttonhole fracture to the main part of the seventh thoracic vertebra, damage to the soft tissue of the left half of the sternum and the soft tissue of the back surface of the upper part of the left shoulder, with the presence of a bullet at the end of the wound tract.

Double haemothorax (550 ml).”

The report gave the following answers to the fourteen questions:

“1. Answer to question no. 1: ‘What are the injuries to the presented corpse, what is their location, what was the method used and from what distance were they inflicted?’

Maskhadov had five gunshot wounds to the head, chest and the left upper extremity:

– on the chest and the upper extremity: one blind multiple wound to the chest perforating the pleural cavities, with a fracture of the seventh right rib and damage to the lungs, a double-sided buttonhole fracture to the main part of the seventh thoracic vertebra, damage to the soft tissue of the left half of the sternum and the soft tissue of the back surface of the upper part of the left shoulder, with a bullet at the end of the wound tract.

No other injuries or marks have been found on the body of Maskhadov.

The following proves that the wounds were inflicted by gunfire: the perforating and multiple character of the injuries; the presence of the bullet at the end of the wound tract ...; bleeding in a cylindrical pattern along the line of the wound tracts; the oval shape and small size of the wounds; the slightly irregular, tucked-in edges of the wounds; the tissue damage in the centre of the wounds and the contusion collar on the edges of the wounds.

The gunshot entry wounds are situated:

– no. 1: in the left postotic area;

– no. 2: two and a half centimetres towards the back and two centimetres lower than wound no. 1;

– no. 3: 3.3 cm to the right of wound no. 2;

– no. 4: in the left parietal area, one centimetre to the left of the midline of the head;

– no. 8: in the projection of the sixth intercostal space on the right, along the midline of the scapula.

The following features indicate that these are entry wounds: the oval shape, the relatively small size, the presence of damaged skin in the centre, the slightly irregular edges, the presence of a contusion collar on the edges and the circular haemorrhage in the subjacent tissues.

The exit wounds are situated:

– no. 5: on the front to the left;

– no. 6: on the front to the right;

– no. 7: in the left cheekbone area.

The following features indicate that these are exit wounds: the irregular star-like and slot-like shape of the wounds; the irregular, ragged edges.

The entry wounds (nos. 1-3) on the head were inflicted as a result of a burst of fire from a hand firearm, which could have been an APS (Stechkin automatic) or a PM (Makarov) pistol, as suggested by the following indications: (a) the presence of a few entry holes situated on the same body surface; (b) the similar morphology of the entry wounds, which suggests that they were inflicted almost simultaneously, by the same type of arm and from the same or almost the same range. Entry wound no. 8 on the back of the corpse of Maskhadov could have been inflicted as the result of a burst of automatic fire or as the result of a single shot from a manual gun of the type described above.

Entry wound no. 4 was inflicted as the result of a single shot from a gun. The diameter of the shell was no less than 0.9 cm, as confirmed by the size of the wound and the perforating fracture of the left parietal bone. Most probably the shell exited through the open mouth. ...

The shots which wounded Maskhadov were not fired from close range (с неблизкой дистанции), a finding confirmed by the absence in the area of the entry gunshot wounds of any traces of impact from the by-products of shooting (gunpowder gases, soot, gunpowder particles, metal particles). The way in which the injuries are formed ... suggests that they were probably inflicted from a distance of one metre.

All injuries were inflicted shortly before death, as confirmed by:

– the character of the wounds – perforating wounds with massive destruction of the brain tissue as well as damage to the internal organs in the chest;

– slight haemorrhaging coupled with pronounced bone fractures;

– the lack of indication of healing of the injuries.

Answer to question no. 2: ‘In what sequence were the injuries inflicted?’

On the head the first to be inflicted was wound no. 1, then wound no. 2 and wound no. 3, then wound no. 4; this is confirmed by the smaller space between wounds no. 1 and no. 2 in comparison to the space between wounds no. 2 and no. 3 and the location of wound no. 4.

It is impossible to answer the question concerning the sequence in which the wounds on the head and the wound on the chest were inflicted because of the absence of objective signs indicating the sequence.

Answer to questions nos. 3, 4, 5 and 12: ‘Which injury exactly was the cause of death?’, ‘Did death occur immediately or within a certain period of time?’, ‘Would [Maskhadov] have been capable of performing any actions after receiving the injuries?’, ‘What was the cause of death?’

The cause of death of Maskhadov was bullet injuries to the head with damage to (destruction of) the cerebral hemispheres and membranes.

The death of Maskhadov occurred immediately on infliction of the gunshot wounds to the head (in a period of time ranging from a few seconds to a few minutes). This is confirmed by:

– the character of the injuries (perforating wounds with massive destruction of brain tissue);

– the slight haemorrhaging coupled with the presence of pronounced injuries to the bones;

– the absence of indications of healing of the said injuries.

After infliction of the said injuries Maskhadov could have performed actions (for a period ranging from a few seconds to a few minutes) during the stage of compensatory reaction of the organism.

Answer to question no. 6: ‘What was the body’s position when the injuries were being inflicted?’

The direction of the wound tracts in the head was (on the assumption that the body is in a straight vertical position): (a) from right to left; (b) from bottom to top as regards wound tracts nos. 1-3, and from top to bottom as regards channel no. 4; (c) slightly from back to front.

The direction of the wound tract in the area of the chest was (on the assumption that the body is in a straight vertical position): (a) from left to right; (b) slightly from bottom to top; (c) slightly from back to front.

Hence, during the shooting the perpetrator’s weapon was situated behind, to the right and slightly below the level of the wounds to the head and the chest of Maskhadov, his head being turned to the left.

Answer to question no. 7: ‘Was the corpse’s position changed?’

The corpse’s position could have been changed as a result of its retrieval, inspection and transport.

Answer to question no. 8: ‘Are there any signs indicating the possibility that the injuries were inflicted by the victim himself?’

None of the injuries found on Maskhadov could have been self-inflicted. This is confirmed by the range from which the shots were fired, the location of the entry gunshot wounds in places inaccessible to the individual himself and the direction of the wound tracts.

Answer to question no. 9: ‘What is the victim’s blood group?’

Report no. 148 on the forensic biological examination shows that Maskhadov belonged to blood group Aβ (II).

Answer to question no. 10: ‘Had the victim consumed alcohol or narcotic substances shortly before death and in what quantities?’

During forensic chemical examination of the biological samples taken from the corpse of Maskhadov, no ethyl alcohol or narcotic substances were detected.

Answer to question no. 11: ‘Did the victim take any food shortly prior to death and, if so, what did he eat?’

Maskhadov did not consume any food prior to death, as evidenced by the lack of food in the stomach.

Answer to question no. 13: ‘How long ago did death occur?’

The timing of death of Maskhadov does not contradict the timing indicated in the order [of 10 March 2005], namely 8 March 2005.

Answer to question no. 14: ‘Is there a causal link between the injuries received and death?”

There is a direct causal link between the injuries received by Maskhadov in the form of gunshot wounds to the head and his death.”

On 10 March 2005 the investigator ordered a forensic medical examination of samples of the corpse’s blood, muscle tissue and nail plate and samples taken from Aslan Maskhadov’s two nephews once removed. The expert, Ko., was asked to establish whether the body in question was that of Aslan Maskhadov.

On 11 March 2005 Ko. received the order of 10 March 2005 and on the same date started the examination. The expert finalised the examination on 14 March 2005. The resulting report was completed on 17 March 2005 and contained a detailed description of the scientific methods used. The expert’s conclusion was that a combination of genetic features found in the samples taken from the corpse and from the dead man’s nephews confirmed the blood relationship between them with a probability of 99.92 percent.

On 29 March 2005 the investigator issued a decision recapitulating the events of 1 September 2004 and the nature of the charges against Aslan Maskhadov, and noted that the investigation had collected evidence of the latter’s involvement in masterminding the attack. The decision went on to state that on 8 March 2005 the authorities had found the body of an unidentified man who was later identified as Maskhadov. The decision then concluded that the criminal case against him should be closed owing to his death.

On an unspecified date between 10 and 28 March the investigator ordered a ballistic examination of the bullet found in the corpse and of the two Stechkin pistols and the PM pistol, found at the scene on 8 March 2005 (see paragraph 27 above). An expert was requested to identify the gun which had fired the bullet in question. As a result of this examination, the expert concluded that the bullet had been fired from the PM pistol. It appears, however, that the report contained contradictions concerning the methods of comparative examination, and on 28 March 2005 the investigator ordered a fresh report.

Between 28 March and 4 April 2005 ballistics experts R. and Yu. carried out a fresh examination of the bullet and the guns. They also came to the conclusion that the bullet had been fired from the PM pistol.

The case file materials submitted by the Government contain records of interviews with three persons arrested on 8 March 2005 and, in particular, V.U. Khadzhimuradov, V.L. Murdashev and S.S. Yusupov. In the case of Khadzhimuradov, the authorities also carried out a psychiatric examination.

The relevant parts of the interview records and the psychiatric report are reproduced in chronological order.

On 10 March 2005 between 7.30 and 9.50 p.m. an investigator from the Prosecutor General’s Office conducted an interview with Skandarbek Sultanovich Yusupov, who had the status of suspect in criminal case no. 20/849. The interview was conducted in the presence of his lawyer, L.L. Dzardanova. The suspect was given formal notice of his rights and also made a statement to the effect that no pressure had been put on him by the authorities in connection with the criminal investigations.

During the interview Yusupov explained that on 8 or 9 November 2004 he had been asked by his cousin to shelter Aslan Maskhadov in his house in the village of Tolstoy-Yurt. The suspect described the circumstances of the arrival of Aslan Maskhadov, his stay in the house and the cellar and the latter’s subsequent meeting with Shamil Basayev (a wellknown militant Islamist and one of the leaders of Chechen separatism), who reportedly died in July 2006 on 12 or 13 November 2004.

As regards the events of 8 March 2005, Yusupov gave the following statement:

“... On 8 March 2005 at around 9 o’clock I was sitting with my wife and daughter in the kitchen when armed men entered by the yard and started shouting: ‘Come out with raised hands one by one’. My wife and daughter and I came out and they asked me whether there were any strangers in the house. I told them that my cousin Ilyas was there, whereupon he came out. Then I was asked whether the building had any cellars, and I showed them the cellar situated under the new house, which is accessed through the new house. They then started a search and in the old house they found the entrance to the cellar in which Aslan Maskhadov, Vakhid and Viskhan were staying. The servicemen blew up the entrance to the cellar and, as a result, the entrance became obstructed. They then started digging underneath and one of them shouted: ‘I see a corpse!’. They started shouting through the hole they had made to see whether there was anyone alive in there and some time later I saw them taking Vakhid and Viskhan out of the old house.”

On 18 March 2005 between 5.05 and 6.55 p.m. an investigator from the Prosecutor General’s Office, in the presence of the lawyer A. Elkanov, interviewed Viskhan Umarovich Khadzhimuradov, who had the status of suspect in criminal case no. 20/849.

He was given formal notice of his rights and also made a statement to the effect that no pressure had been put on him by the authorities in connection with the criminal proceedings and that he had decided to give evidence in the case voluntarily.

Khadzhimuradov explained that he was Aslan Maskhadov’s nephew and had also been his personal bodyguard and assistant. He described various episodes from their work together.

He also stated as follows:

“On 8 March 2005 at 9 o’clock I was with my uncle Aslan and Vakhid Murdashev in the bunker under the private house situated in the village of Tolstoy-Yurt; I cannot remember the exact address. At that moment the sound of blows rang out. Then there was an explosion near the cellar’s hatch leading to the bunker. Uncle Aslan took his Stechkin pistol and fired a shot at his head. After that moment I can hardly remember what happened. I only recall that the servicemen dragged me and Vakhid out of the cellar. I would like to clarify that Uncle Aslan, Vakhid and I had lived in the house in question in the village of Tolstoy-Yurt since the beginning of December 2004. Before that, Uncle Aslan and I had been living in the forest near the mountain village of Avturi in the Kurchaloyevskiy District of the Chechen Republic.”

On 18 March 2005 between 3.40 and 5.25 p.m. an investigator from the Prosecutor General’s Office interviewed Vakhid Lakayevich Murdashev, who had the status of suspect in criminal case no. 20/849, in the presence of the lawyer A.A. Pliev. V.L. Murdashev was suspected of having been a member of the armed group and of being in possession of firearms. The suspect was given formal notice of his rights and also made a statement to the effect that no pressure had been put on him by the authorities in connection with the criminal proceedings and that he had decided to give evidence in the case voluntarily.

It appears that the suspect had been questioned previously on at least one occasion, as the record stated that it was an “additional interview” and that he had “fully endorsed his earlier statements”.

Murdashev explained that he had been Aslan Maskhadov’s political assistant, and described various episodes from their work together.

As regards the events of 8 March 2005, Murdashev gave the following statement:

“On 8 March 2005 Maskhadov and Viskhan Khadzhimuradov and I were in the bunker under the house of Mr Yusupov. At around 9.30 a.m. we heard heavy footsteps on the ground above and thought that there were many people up there. We switched the light off. After about an hour the entrance was discovered, as there was a glimmer of light coming through the cover blocking access to the bunker. In a few minutes a few shots were fired at the cover from the outside. At this point I was on the floor (at the place marked ‘C’ on the sketch map I drew earlier). Maskhadov was on the trestle bed (at the place marked ‘A’ on the map). V. Khadzhimuradov was on the trestle bed facing Maskhadov (at the place marked ‘B’ on the map). After the shots were fired I moved to the trestle bed and sat near V. Khadzhimuradov (at the place marked ‘1’ on the map). At that point I had in my right hand my APS-Stechkin pistol which was at half-cock and was not loaded, although it had a cartridge full of bullets. Maskhadov stayed where he was and held his APS-Stechkin gun. I don’t know whether it was loaded with bullets. At that moment Maskhadov said, in particular, ‘While I am alive, the enemy won’t touch me’, so I understood that he wanted to commit suicide. Also, there was an explosive device next to him, for personal self-destruction, which he did not use so as not to hurt me and V. Khadzhimuradov. Then V. Khadzhimuradov asked Maskhadov, in particular ‘What are we to do[?]’ to which the latter responded ‘You should not do it’, meaning that we should not kill ourselves. Then there was an explosion, as a result of which I lost consciousness. When I came round I was lying on the floor (at the place marked ‘2’ on the map). There was dust in the bunker and nothing could be seen. There was no gun in my hand at that moment. I called V. Khadzhimuradov and asked him, in particular: ‘How is Aslan?’ to which he responded in Chechen: ‘He is no more’. I moved to the place where I had been sitting (at the place marked ‘1’ on the sketch). The body of Maskhadov was in the same place as before and was obstructed by a foam-rubber mattress, but I could not see it. Then ... I remember the fumes started to appear and V. Khadzhimuradov and I started choking. I shouted in the direction of the passage ‘There are people alive!’ and started climbing upwards, with V. Khadzhimuradov following. There were people in military uniform upstairs who escorted me and V. Khadzhimuradov to the yard.”

In response to the investigator’s question whether the suspect had heard any shots being fired inside the bunker, the suspect replied as follows:

“I myself did not shoot and did not see or hear Maskhadov or V. Khadzhimuradov shooting while in the bunker.”

Responding to the investigator’s question concerning the cause of death of Aslan Maskhadov, the suspect stated as follows:

“I think that Maskhadov shot himself with his APS-Stechkin pistol. But I don’t know how this actually happened, as I lost consciousness after the explosion.”

On 18 March 2005 between 5.05 and 6.55 p.m. an investigator from the Prosecutor General’s Office again interviewed V.U. Khadzhimuradov, this time in the presence of the lawyer E. Dzhioyeva.

The suspect was given formal notice of his rights and also made a statement to the effect that no pressure had been put on him by the authorities in connection with the criminal proceedings and that he had decided to give evidence in the case voluntarily.

As regards the events of 8 March 2005, the suspect made the following statement:

“On 8 March 2005 at around 9 a.m., Uncle Aslan, Vakhid and I were in the cellar. At that moment, we heard some knocks and understood that someone was trying to break down the door leading to the cellar. In response, Uncle Aslan, using his right hand, put the pistol to the temple area of his head. At that moment there was an explosion. At the moment of the explosion Uncle Aslan was kneeling in front of me, facing me, and Vakhid was sitting half a metre to the left. As result of the explosion, I lost consciousness. After some time, a couple of seconds as I understood, I started gradually to come round. I saw that Uncle Aslan’s head was lying on my right leg, I felt warmth and realised that the blood was oozing out of my uncle’s wounded head down my right leg. Then Vakhid and I started shouting that we were coming out. We came out and the Spetznaz soldiers told me to go downstairs to the cellar and tie Uncle Aslan’s chest and legs so that it would be more comfortable to lift him up from the cellar. I carried out the instruction, after which Vakhid and I were arrested by the Spetznaz soldiers. I would like to explain that at the moment when the Spetznaz soldiers were breaking down the doors leading to the cellar, Uncle Aslan told me and Vakhid: ‘If I am still alive, shoot me in the heart’.”

During the interview which took place on 19 March 2005 between 3.25 and 4.05 p.m., V.U. Khadzhimuradov gave the following statement:

“I wish to amend my previous statements. According to my previous statements, on 8 March 2005 at 9 o’clock, the Spetznaz servicemen started breaking down the door leading to the cellar where I was staying with my uncle, Aslan Alievich Maskhadov, and my uncle’s assistant, Murdashev Vakhid. We were in the cellar, under the one-storey private house situated in the village of Tolstoy-Yurt in the Chechen Republic. After we heard the knocks in the cellar, Uncle Aslan told me and Vakhid: ‘Be prepared! Don’t think about yourselves, think about me! If I am still alive, shoot me in the heart!’ After hearing these words I cocked my PM pistol. At that moment Uncle Aslan was sitting in front of me, at a distance of half a metre; Vakhid was sitting near me, to the left. Then the explosion happened. I felt bad, my head felt like it was being squeezed. At that moment Aslan Maskhadov fell on me so that his head was on my right leg. At that very second, without taking aim, I fired two shots in a row at Uncle Aslan. I don’t know where the bullets went. Then in a few seconds I lost consciousness. Afterwards I came round and along with Vakhid surrendered to the Spetznaz fighters. I would like to clarify that I took Uncle Aslan’s words as an order; according to Chechen custom, I cannot disobey and fail to execute an order given by Aslan Maskhadov.”

On 7 June 2005 between 12.55 and 3.30 p.m. an investigator from the Prosecutor General’s Office interviewed V.U. Khadzhimuradov, who by then had the status of accused. The interview took place in the presence of the lawyer A.B. Elkanov. The record noted that Khadzhimuradov was giving evidence in the case voluntarily.

The accused described his relationship with Aslan Maskhadov as well as various instances of collaboration between them, and meetings between Aslan Maskhadov and Shamil Basayev.

As regards the events of 8 March 2005 Khadzhimuradov gave the following statement:

“Around one month after the departure of Shamil Basayev, on 8 March 2005, Maskhadov, Vakhid Murdashev and I were in the cellar. Ilyas Iriskhanov was in the house. We were all asleep, and were woken up because we heard some people walking in the yard, talking and looking for an entrance to the cellar. Then they started knocking on the hatch covering the entrance to the cellar. At that moment I was sitting on the bed, with Maskhadov sitting in front of me and V. Murdashev sitting beside him on the mattress. Maskhadov told me and V. Murdashev that they were coming after him, but that he would not surrender and that if he remained alive I should shoot him in the heart. After saying these words, he put a gun to his right temple. I held my PM pistol in my right hand, it was loaded and cocked, and at that moment the explosion happened. I was thrown back by the blast, I struck my head against the wall and lost consciousness. Some time later I came round, my head was aching badly, as if it were being squeezed. I could hardly see anything, there was a mist in my eyes, I had no idea what was going on at that moment. At the moment of the explosion I could hear the shots but I cannot say who was shooting and where. I cannot exclude the possibility that at the moment of the explosion, when I was thrown back, my pistol might have gone off, but I cannot say what direction the shot went in. After the explosion when I came round I felt that someone was lying on my right leg, then it occurred to me that it was Maskhadov and that his head was bleeding. Then Vakhid Murdashev and I started shouting to the people above that we were coming out. Murdashev Vakhid was the first to come out of the cellar. I followed straight behind, then went back into the cellar again and tied up the body of Maskhadov so that it could be taken out of the cellar.”

On 3 June 2005 the investigator ordered a psychiatric expert examination of V.U. Khadzhimuradov, in view of the seriousness of the charges against him and the cerebrocranial injury he had received on 8 March 2005. The investigator put the following questions to the board, consisting of four experts in psychiatry and psychology, Doctors S., T., Kh. and B.:

Does V.U. Khadzhimuradov display any indications of increased propensity towards exaggeration of the events he describes?

Does V.U. Khadzhimuradov display any indications of increased suggestibility and submissiveness?

Did V.U. Khadzhimuradov, or does he, suffer from a mental illness and, if so, which one?

If so, how long has he been suffering from the illness and is it temporary or permanent?

Is he suffering from any temporary mental disorder or the presence of a particular mental condition which could have influenced his proper perception of the events which took place on 8 March 2005?

If so, what is the nature of this temporary disorder and would V.U. Khadzhimuradov have been aware of his actions and able to control them?

Would he have been aware of his actions and able to control them before 8 March 2005?

What is the mental state of V.U. Khadzhimuradov at present and is he aware of his actions and capable of controlling them?

Is V.U. Khadzhimuradov in need of medical treatment?”

The board of experts was given access to the evidence in criminal case no. 20/849 and also examined the accused in person.

The examination apparently took place on 8 June 2005.

“... On 8 March 2005, during the investigation of the present criminal case, in the course of carrying out measures aimed at detaining persons suspected of having organised and carried out illegal acts in school no. 1, V.U. Khadzhimuradov was arrested. Immediately before his arrest there was an explosion at the entrance to the cellar during which, as made clear by the interview records, he lost consciousness for an indefinite period of time. During the interview he gave evidence to the effect that he was the grandson of the sister of Maskhadov, and that since 2003 he had been constantly in his company. He was in charge of protecting Maskhadov, supervised the cooking and kept an eye on the state of his wardrobe and firearms. Since October 2003 they had been living in the village of Tolstoy-Yurt. For the last two weeks they had been hiding in the cellar of the house. On 8 March 2005 at around 9 o’clock they were in the cellar with Maskhadov and his advisor V.L. Murdashev. Having heard the talk and commotion in the yard they realised that they had been located. Maskhadov told them that he would not give in alive and that if he should remain alive, V.U. Khadzhimuradov would have to shoot him in the heart. After these words, he put a cocked pistol to his temple. At that moment the explosion occurred and V.U. Khadzhimuradov struck his head against the wall and lost consciousness. He had difficulty remembering what happened next. ...”

The report then summarised various statements that the accused had given earlier in connection with the events following the explosion:

“At one of the interviews he stated that Maskhadov had shot himself in the head. He did not remember clearly the events which took place after that moment; the servicemen had dragged him and Murdashev out of the cellar (10.03.05).

Subsequently he gave contradictory statements. Hence, during the interview dated 18.03.05 he stated that ‘having gradually come round’, he had seen Maskhadov’s head on his leg, felt the warmth and realised that blood was spilling out of his uncle’s injured head.

During the interview of 19.03.05 he stated that when the explosion occurred his head felt as if it were being squeezed. Maskhadov had fallen on him and ‘at that moment, without taking aim’, he had fired two consecutive shots, after which he lost consciousness.

At the interview on 07.06.05 he confirmed his previous statements to the effect that Maskhadov, before the explosion in the cellar, had told him to shoot him in the heart if he should remain alive. At the same time Maskhadov himself had put a pistol to his temple. The accused had held his cocked gun in his hand. When the explosion occurred, he was thrown back by the blast, struck his head against the wall and lost consciousness. When he came round some time later, his head was aching badly as if it were being squeezed and he could hardly see anything. His mind was in a ‘fog’, and at that moment he could not perceive the events around him. At the moment of the explosion he heard the shots but could not say who was shooting and where. He could not rule out that his gun might have gone off when the blast threw him back, but could not say what direction the shots went in. When he came round, he felt that someone was lying on his leg. Later he realised that it was Maskhadov, whose head was bleeding. After that he and Murdashev started shouting upstairs that they were coming out. Murdashev was the first to come out, followed by him. On the orders of the Spetznaz soldiers he returned to the cellar, where he tied up the body of Maskhadov so that it could be taken out (data from the interview record of 07.06.05).”

The board of experts examined the accused’s physical and mental condition and talked to him about his memories of 8 March 2005. The report described the perception of the events by the accused immediately after the explosion in the following manner:

“As regards his condition immediately following the explosion in the cellar [the accused] speaks vaguely and inconsistently, saying that he has trouble remembering that period of time. He remembers the moment of the explosion, seeing a flame and hearing shots, after which he struck his head against the wall and lost consciousness, ‘blacking out’. When he regained consciousness he was unable to hear, felt like vomiting and suffered from dizziness. His head felt like it was being squeezed, he could hear a ringing in his head, a humming noise. There was a ‘mist’ before his eyes, and everything was fading. He could not understand what had happened. He felt that someone was lying on his leg, something warm was leaking. He does not remember how exactly he took the decision to come out of the cellar, he only heard the voice of Murdashev calling ‘Let us come out!’. He vaguely remembers crawling up through the trapdoor. He cannot say how much time passed from the moment of the explosion until he came out: ‘Maybe an hour, maybe half an hour’.”

The board of experts came to the following conclusions as regards the state of mind of Khadzhimuradov before 8 March 2005:

“... the person

These are the conclusions of the experts as regards the psychological condition of the accused on 8 March 2005:

“On 8 March 2005 V.U. Khadzhimuradov received a closed craniocerebral injury (brain contusion), which was accompanied by loss of consciousness and later manifested itself in acute loss of hearing, with symptoms affecting the entire brain (severe headache, vertigo, nausea, ringing and buzzing in the head), the aforementioned state of being stunned and, as a result, distorted perception of the surrounding circumstances (‘could hardly see’, ‘there was a mist before [his] eyes’, ‘fading’, ‘could not understand what had happened’, ‘could not understand anything about what was happening’ – extracts from the interview records and the clinical consultation with Mr Khadzhimuradov). This is also confirmed by the fragmentary character of his memories and contradictions in his statements concerning the period of time in question and the fact that he currently displays symptoms of moderate posttraumatic cerebral asthenia. The said disorders deprived V.U. Khadzhimuradov of the capacity adequately to perceive the surrounding circumstances and relevant events of the case and to control his actions at the moment of and immediately following the craniocerebral injury sustained on 8 March 2005. No indication exists for compulsory medical treatment.”

On 9 June 2005 between 12.37 and 4.19 p.m. an investigator from the Prosecutor General’s Office again interviewed Vakhid Lakayevich Murdashev, who by then had the status of accused in criminal case no. 20/849. The interview took place in the presence of the lawyer I.T. Ostayeva.

The accused recounted various episodes from his work with Aslan Maskhadov.

As regards the events of 8 March 2005 Murdashev stated as follows:

“About two weeks before we were found, information reached us that Yusupov’s nephew was being looked for. Allegedly the military authorities were looking for him. Out of fear that he would be looked for in Yusupov’s house, Maskhadov ordered us to stay in the cellar during the daytime. We kept awake during the night, and after morning prayer we entered the cellar and slept. Even in the cellar Maskhadov worked on the computer. Maskhadov and Khadzhimuradov slept on the couch. I slept on the mattress on the floor. The size of the cellar was 2.5 m by 2.5 m. The walls were made of concrete and brick, the floor was made of concrete, and there was electric wiring in the cellar. We lived a monotonous life. During those two weeks Iriskhanov started living in Yusupov’s house. On 8 March 2005 between five and six o’clock three of us went down to the cellar and went to sleep. We woke up because of the noise upstairs. It was clear that people were moving upstairs. I think I looked at my watch, it was around 9 o’clock. The entrance to the cellar could be locked by a wooden hatch, there was linoleum on it ... which could be covered by a carpet. Every morning we were locked into the cellar by Yusupov and Iriskhanov. If it was necessary we could knock and they would open it for us. It happened only once. Before that our knocks could not be heard. Maskhadov took his weapon. He had previously mentioned that he would not surrender. On that day he literally said that ‘the enemy would not touch him while he was alive’. The light in the cellar was switched on. Maskhadov was sleeping in his sleeping bag. He started looking for his explosive belt. Maskhadov himself asked Khadzhimuradov where his explosive device was. Then it became apparent that our location had been discovered; a gap appeared in the hatch. Maskhadov was holding his gun in his hand. Khadzhimuradov asked him what we were supposed to do. Maskhadov replied that we should not do it. Some time after that shots rang out; they seemed to be coming from the hatch. The size of the hatch was 60 cm by 60 cm. I moved sideways, away from the hatch. After that at some point I lost consciousness, and when I came round I was on the floor. Before losing consciousness I had taken out my gun and held it in front of me near the belt. After I came round I discovered that everything was full of smoke. My first thought was that Maskhadov had detonated the explosive device. When I came round I was wondering why I was not injured. I called to Khadzhimuradov and asked him what had happened to Aslan. He replied that Aslan was no more, so I understood that he was already dead. Then I went upstairs and Khadzhimuradov came out following me. I saw Maskhadov lying covered with a mattress. After we came out I did not speak to Khadzhimuradov. Some time after that they took Maskhadov out of the cellar. As soon as I got upstairs I realised that the explosion had occurred when they tried to open up the hatch.”

On 2 June 2005 the head of the civil registry of the Groznenskiy District of the Chechen Republic, A., issued a death certificate in respect of Oslan Aliyevich Maskhadov, born on 21 September 1951. The certificate stated that death had occurred in the village of TolstoyYurt on 8 March 2005.

On 14 July 2005 the investigator examined the evidence in criminal case no. 20/849. He noted that Aslan Maskhadov had been sought on charges relating to his alleged involvement in the terrorist attack on the school in the town of Beslan on 1 September 2004. The decision further stated:

“In the course of carrying out special measures aimed at discovering the location of Maskhadov it was established that he had been hiding in the property belonging to S.S. Yusupov ...

On 8 March 2005 in the cellar of the said property the corpse of Maskhadov, bearing traces of multiple gunshot injuries, was found. At the same time V.L. Murdashev and V.U. Khadzhimuradov, who had been in the same cellar, as well as I.G. Iriskhanov and S.S. Yusupov, who were in charge of outside protection, were arrested and found to be in possession of ammunition and firearms.

According to the conclusions of forensic medical report no. 13-e of 24 March 2005, the death of Maskhadov occurred as a result of gunshot wounds to the head with damage (destruction) to the brain hemispheres and its membranes. The victim had:

– four perforating wounds penetrating the cavity of the skull with a onesided buttonhole fracture to the left temporal, left parietal and cervical bones and a multifragment fracture to the frontal bone, with damage to brain tissue, haemorrhaging in its ventricles and above and beneath the hard and soft brain tunic, a perforating fracture to the big wing of the main bone on the left, a fracture to the left cheekbone and haemorrhaging in the soft tissue of the head;

– one blind multiple wound to the chest perforating the pleural cavities, with a fracture of the seventh right rib and damage to the lungs, a double-sided buttonhole fracture to the main part of the seventh thoracic vertebra and damage to the soft tissue of the left half of the sternum and to the soft tissue on the back of the upper part of the left shoulder, with a bullet at the end of the wound tract.

The entry gunshot wounds were situated in the occipitoparietal areas and in the projection of the sixth intercostal space on the right, along the middle scapular line. The entry wounds on the head were inflicted within moments of each other, not from close range, from the same type of weapon, and from the same or almost the same range.

At the moment of shooting the weapon was situated behind the victim, towards the right side, slightly below the level of the wounds to the head and chest of Maskhadov, the victim’s head having been turned to the left. The resulting injuries could not have been self-inflicted.

On 8 March 2005 during examination of the place where the corpse was discovered and the persons located in the cellar of the house were arrested ... an APS pistol no. VP 1918 I and an APS pistol no. GN 2020 I, belonging to Maskhadov and V.L. Murdashev, and a PM pistol no. MA 7863, belonging to V.U. Khadzhimuradov, were recovered from V.L. Murdashev and V.U. Khadzhimuradov.

According to the [ballistics] examination of the recovered weapon and the bullet, as detailed in the [ballistics] experts’ report no. 3-k dated 4 April 2005, the bullet removed from the corpse of Maskhadov was fired from a Makarov (PM) pistol no. MA 7863, that is from the pistol belonging to V.U. Khadzhimuradov.

In the course of the examination which was carried out, it was established that on 8 March 2005, in the course of the search of the property of S.S. Yusupov, the latter categorically denied the presence of any strangers on the property and the presence of other cellar rooms equipped for a long-term stay in which fugitives from the lawenforcement bodies could be located. In the course of measures aimed at examining the ... location due to be demolished, a secret passageway was located leading to the underground shelter, with a hatch blocking access from the outside. With a view to enabling the underground bunker to be examined unhindered, an explosive device of small capacity was used, providing free access to the cellar. V.L. Murdashev, V.U. Khadzhimuradov and the corpse of Maskhadov were then located.

V.U. Khadzhimuradov, when questioned concerning the circumstances of what happened, stated that he, Maskhadov and V.L. Murdashev had been hiding for a long time in an underground bunker situated in Mr Yusupov’s house. On 8 March 2005 he, Maskhadov and V.L. Murdashev had been in the cellar. They were awoken by the sound of people talking while looking for the entrance to the cellar. At that moment, Khadzhimuradov was sitting on the couch and Maskhadov, who said that they were coming after him but that he would not surrender alive, was sitting in front of him. Maskhadov then put a gun to his temple, having said that if he was still alive, then Khadzhimuradov, who was holding a cocked gun in his right hand, should shoot him in the heart. After the explosion occurred [Khadzhimuradov] was thrown back and struck his head against the wall. For some time he lost consciousness. He did not know what happened next: his head was aching and he felt as if there was a mist in his head. At the moment of the explosion he heard shots, but could not say who was shooting or from where: he thought the shots could have been from his gun. Then he discovered that Maskhadov, whose head was bleeding, was lying on his right leg.

According to the statements of the accused V.L. Murdashev, on 8 March 2005 at around 9 o’clock, after Maskhadov realised that their shelter had been discovered, he said that ‘while he was alive the enemy would not touch him’. [V.L. Murdashev] understood this to mean that Maskhadov wanted to commit suicide. Khadzhimuradov asked what he should do. Maskhadov replied: ‘You should not kill yourself’. Then the explosion occurred and he, Murdashev, lost consciousness. When he came round, he discovered that he was on the floor. He asked Khadzhimuradov about Maskhadov and heard that Maskhadov was no more.

According to the report of psychiatric examination ... no. 241 dated 8 June 2005 V.U. Khadzhimuradov received a closed craniocerebral injury (brain contusion) during the explosion, accompanied by a loss of consciousness and later manifesting itself in an acute loss of hearing, with symptoms affecting the entire brain (severe headache, vertigo, nausea, ringing and buzzing in the head), the state of being stunned, as referred to, and, as a result, distorted perception of the surrounding circumstances. This is also confirmed by the fragmentary character of his memories and contradictions in his statements concerning the period of time in question and the fact that he currently displays symptoms of moderate post-traumatic cerebral asthenia. The said disorders deprived V.U. Khadzhimuradov of the capacity adequately to perceive the surrounding circumstances and relevant events of the case and to control his actions at the moment of and immediately following the craniocerebral injury sustained on 8 March 2005.

Following analysis of the circumstances established during the investigation – the statements of V.U. Khadzhimuradov and V.L. Murdashev and the conclusions of the [ballistics] expert’s examination indicating that the bullet extracted from the corpse of Maskhadov had been fired from the pistol of V.U. Khadzhimuradov – it can be stated that the death of Maskhadov occurred as a result of shots fired by V.U. Khadzhimuradov. The data received in the course of the [psychiatric] examination of V.U. Khadzhimuradov confirms that Khadzhimuradov did not kill Maskhadov intentionally. The fact that he was suffering from a specific condition caused by the explosion, which prevented him from accurately perceiving his environment, being aware of the nature of his actions and controlling them, indicates that V.U. Khadzhimuradov, when he killed Maskhadov, was in a state of insanity [состояние невменяемости]. Accordingly, his actions do not constitute corpus delicti as defined in part 1 of Article 105 of the Criminal Code.”

The investigator accordingly concluded that there were grounds for a decision not to initiate a criminal prosecution against V.U. Khadzhimuradov for the killing of Aslan Maskhadov.

The decision of 14 July 2005 did not state whether the family or any of the relatives of Aslan Maskhadov were to be notified.

Since Aslan Maskhadov’s family had previously gone into hiding and were living abroad, it is also unclear whether the authorities were in a position to notify them.

By letters of 29 March 2005, 13 November 2005 and various dates in 2006, the applicants requested, among other things, that they be granted access to the medical documents stating the cause of their relative’s death, that they be provided with copies of the decisions relating to the procedural status of the deceased in the criminal proceedings against him and that a criminal case be opened in connection with his death.

On 10 February 2006 I.V. Tkachev, head of department in the Directorate General of the Prosecutor General’s Office with responsibility for the Southern Federal District, responding to the applicants’ request to see the medical documents showing the cause of death of Aslan Maskhadov, stated that the possibility existed in principle but that there were no grounds for providing the applicants with a copy of the relevant medical documents at that time.

In another letter dated 10 February 2006 I.V. Tkachev further stated as follows in response to the request to initiate criminal proceedings in connection with the death of Aslan Maskhadov:

“... It has been established that during the investigation of case no. 20/849 into the terrorist act committed in the town of Beslan in the Republic of Northern OssetiaAlaniya, the circumstances surrounding the death of Maskhadov were examined. The evidence in the criminal case indicates that the death of Maskhadov occurred as a result of the use of firearms by V.U. Khadzhimuradov, who happened to be in the same secret shelter.

According to the conclusions of the psychological/psychiatric examination, ... at the time of the explosion V.U. Khadzhimuradov sustained a closed craniocerebral injury coupled with loss of consciousness, general cerebral symptoms (severe headache, dizziness, nausea, ringing and buzzing in the head), pronounced obnubilation and, as a consequence, distorted perception of surrounding events. This is confirmed by the fragmentary nature of his memories and the incoherent character of his statements concerning that period of time and the presence of symptoms of mild post-traumatic cerebral asthenia.

In view of the above, a decision was taken not to initiate criminal proceedings in respect of V.U. Khadzhimuradov for the murder of Maskhadov, in accordance with Article 24-1 (2) of the Code of Criminal Procedure.

Under Article 148 of the Code, a copy of the decision not to initiate criminal proceedings is sent to an applicant. Since the prosecution never received any crime report [from anyone in this connection], no copy of [the decision] was sent to the [widow of Aslan Maskhadov]. At present, the prosecution has no reason to furnish a copy of [the decision] to anyone.

A decision to recognise an individual as a victim in connection with the damage sustained ... is taken only within the framework of criminal proceedings already initiated. Since it was decided not to initiate criminal proceedings in respect of V.U. Khadzhimuradov in relation to the murder of Maskhadov, there are no legal grounds for recognising you as victims.”

As regards the applicants’ request that they be given copies of documents relating to Aslan Maskhadov and his procedural status as an accused in the criminal case concerning the terrorist act committed in the town of Beslan in the Republic of Northern Ossetia-Alaniya, the same prosecutor noted as follows:

“... Under Article 172 of the Code of Criminal Procedure, a copy of the decision to charge an individual [with commission of a crime] is served by an investigator on the accused, his counsel and the competent prosecutor. The [relevant] law does not list any other person as having the right to receive a copy of [that decision].

Article 108 of the Code contains an exhaustive list of persons who have the right to receive copies of decisions on the application of a preventive measure (detention) in respect of the suspect or the accused.

Under ... Decree no. 164 of the Government of the Russian Federation dated 20 March 2003, the official in charge of the investigation must notify the relatives of a person [whose criminal prosecution for terrorist activity was discontinued because of his or her death] of the location of the civil registry office that is to issue them with the death certificate. [The official also has discretion as to whether to provide the relatives with a copy of the autopsy report]. At present, there are no grounds for providing the relatives with a copy of the medical forensic report on the corpse of Maskhadov.

[In view of the above, the applicant’s requests are rejected.]”

It does not appear that the applicants were provided with a copy of the decision of 14 July 2005 not to initiate criminal proceedings in respect of the death of Aslan Maskhadov.

The Government produced information notes dated 19 February 2007 from Moscow City Court, Rostov Regional Court and Stavropol Regional Court, certifying that the applicants had never applied to any of the courts in the Moscow, Rostov or Stavropol regions in connection with the decision not to initiate criminal proceedings in respect of the death of Aslan Maskhadov.

It appears that Aslan Maskhadov’s alleged terrorist activities were investigated by the authorities in the context of criminal cases nos. 20/849 and 14/17, referred to above.

On 26 August 2002 the investigation questioned a former driver of Aslan Maskhadov, Aslan Bitiyev, who, in the presence of his lawyer, gave a statement to the effect that in August 2000 Aslan Maskhadov had appointed him as commander in charge of the Nadterechnyy District of Chechnya and had given him a direct order to organise attacks against Russian servicemen with a view to destabilising the situation and intimidating the population. A. Bitiyev also described the organisational structure of his military units and the method of financing their operations and acquiring weapons and ammunition. According to him, money was provided by Aslan Maskhadov on a regular basis. A. Bitiyev also described in detail all the activities in which he had been involved and gave the names of all those who had taken part in such activities, and those of his contacts in other regions.

On 6 September 2004 Nurpash Kulayev, apparently the only surviving participant in the terrorist attack in the town of Beslan, gave a statement during questioning to the effect that one of the men in charge of the attack, nicknamed “the Colonel”, had told him that the order to attack the school in Beslan had come directly from “Maskhadov and Basayev”. The statement was given in the presence of a lawyer named Sikoyev and in the context of an interview concerning the circumstances of the attack.

N. Kulayev confirmed this statement during another interview on 10 September 2004.

On 14 September 2004 Ruslan Sultanovich Aushev, former President of the Republic of Ingushetia and one of the principal negotiators during the terrorist attack in the town of Beslan on 1 September 2004, gave a witness statement to the effect that the terrorists had explained to him during the negotiations that they had been acting on the orders of Shamil Basayev, but that the list of demands to be satisfied had been formulated by and was to be discussed with Aslan Maskhadov rather than with Shamil Basayev.

The negotiations between “the Colonel” and R. Aushev were videotaped. The transcript of the video recording demonstrates that the terrorists indeed named Aslan Maskhadov as the person with whom the authorities were to conduct negotiations.

On 8 December 2004 the investigator took a decision to formally identify Shamil Basayev as an accused in case no. 20/849, having described in detail the events of 1 September 2004 as established by the investigation and having also stated that Shamil Basayev and Aslan Maskhadov had been behind the attack and had been acting in concert.

During an interview on 10 March 2005 S.S. Yusupov mentioned that Aslan Maskhadov had had contact with and had received visits from Shamil Basayev in November-December 2004.

On the same day V.U. Khadzhimuradov stated during an interview that he had personally seen plans for the terrorist attack in the town of Beslan on the personal computer of Aslan Maskhadov. He said that the plans had been discussed by Aslan Maskhadov and Basayev in December 2004.

During an interview of 18 March 2005 V.L. Murdashev stated that Aslan Maskhadov’s activities had consisted of two components, a military one involving the organisation of attacks and a political one involving talks and negotiations. According to Murdashev, the military operations were usually devised by Aslan Maskhadov with the assistance of other guerrilla leaders such as Shamil Basayev, A. Avdarkhanov, someone by the name of Aslanbek and someone by the name of Mussa.

On the same date Khadzhimuradov said during an interview that he and his uncle had been travelling around Chechnya and living in different secret military bases run by guerrilla leaders.

On 7 June 2005 Khadzhimuradov mentioned during an interview that there had been a meeting between Shamil Basayev and Aslan Maskhadov shortly before the events of 8 March 2005.

During an interview of 9 June 2005 Murdashev described the staging of an attack on the village of Avtury and the visit by Shamil Basayev in December 2004.

On 25 March 2005 investigator K. examined the evidence in case no. 20/849 and, having briefly described the circumstances of the terrorist attack of 1 September 2004, stated that according to the data collected by the investigation there had been four persons behind the attack: Shamil Basayev, Aslan Maskhadov, M.Kh. Khashiyev and TaufikalDjedani, also called Abu-Dzeit, a Saudi Arabian national.

The decision further noted that on 8 March 2005 the corpse of a man had been found in the cellar of one of the houses in the village of Tolstoy-Yurt and that the corpse had been identified as Aslan Maskhadov. At the same location various objects (home-made explosive devices, firearms and ammunition), as well as documents, were found confirming the active involvement of Aslan Maskhadov in terrorist activities, which had been interrupted as a result of his death. The decision went on to state that all the forensic examinations had already been carried out and that it was necessary to bury the corpse.

Referring to Article 3 of Decree no. 164 of the Government of the Russian Federation, dated 20 March 2003, and section 16(1) of the Suppression of Terrorism Act, the investigator decided to bury the corpse of “the terrorist Aslan Maskhadov”, to delegate the task of burial to the Government of the Chechen Republic and to notify a Deputy Prosecutor General of the decision.

The applicants alleged that they had received a copy of this decision for the first time in May 2007, along with the respondent Government’s observations on the admissibility of the case.

By letters of 29 March and 13 November 2005 as well as various dates in 2006 the applicants requested, among other things, the return of Aslan Maskhadov’s body.

On 4 April 2005 N.Ts. Khazikov, acting head of the department in charge of the Northern Caucasus at the Prosecutor General’s office, rejected the request for return of the body. He referred to the fact that Aslan Maskhadov had been accused in a few criminal cases of having committed terrorist crimes and that a decision had been taken to subject him to a preventive measure in the form of deprivation of liberty. With reference to the Federal Suppression of Terrorism Act and Decree no. 164 of the Government of the Russian Federation, dated 20 March 2003, the official noted that the burial of terrorists who had died as a result of the suppression of their terrorist actions was to be carried out in accordance with the procedure established by the Government of Russia. Their bodies were not to be returned and the location of burial could not be disclosed (see paragraphs 122-124 below).

It appears that the applicants received this letter on 15 April 2005.

The Government produced information notes dated 19 February 2007 from the Moscow City Court, the Rostov Regional Court and the Stavropol Regional Court certifying that the applicants had never applied to any of the courts in the Moscow, Rostov or Stavropol regions in connection with the decision not to return the body of the person in question to his relatives for burial.

It appears that the events of 8 March 2005 were widely reported in the Russian media, with photos of the deceased’s body with a naked torso taken shortly after the incident being broadcast by some TV channels.

On 4 December 2005 the Supreme Court of the Chechen Republic convicted V.L. Murdashev, V.U. Khadzhimuradov and S.S. Yusupov on charges of active participation in military sedition with a view to breaching the territorial integrity of the Russian Federation, participation in unlawful military formations and illegal possession of arms and explosives. They were sentenced to various terms of imprisonment.

The court reported the trial statements of Murdashev as follows:

“... The accused Murdashev explained during the court hearing that [he was loyal to the idea of Chechen independence and that he had collaborated with Aslan Maskhadov on various occasions since 1999. He then described various instances of such collaboration.] ... As regards the role played by Khadzhimuradov, he stated that the latter was a personal assistant of Maskhadov and accompanied him each time he went out into the yard, carrying his ‘PM’ gun with bullets. He, Murdashev, was also in a sense the bodyguard of the president of the Chechen Republic of Ichkeriya and had an APS [automatic pistol Stechkin] gun with bullets. ...

Early in the morning of 8 March 2005 he, Maskhadov and Khadzhimuradov entered the cellar as usual and went to bed. They were awoken at around 9 o’clock by a noise outside. They realised that someone was looking for an entrance to the cellar and that the persons looking for it were obviously not friendly. Maskhadov told them that he would not surrender alive and that he had the permission of religious experts to do that. He also told [Murdashev] and Khadzhimuradov that they did not have such permission. At some point a powerful explosion occurred, following which [Murdashev] lost consciousness. Having regained consciousness, he asked Khadzhimuradov what had happened to Maskhadov and from the response he understood that the latter was dead. There was no light in the cellar, there was dust and fumes, and there was no fresh air. Someone outside called them to come out and he and Khadzhimuradov went out. Once outside, they were detained and then transported to the village of Khankala. From Khankala they were transported by helicopter on 10 March 2005 to the airport of the town of Beslan and then to RUBOP [the department of the Ministry of Interior in charge of fighting organised crime] in the town of Vladikavkaz. There, for the first month and a half, they were beaten up by unknown officials whose faces [the accused] could not see as they had put a plastic bag over his head. He was beaten because of his suspected involvement in the attack on the school in Beslan, to which they demanded that he confess. Having established that he was innocent in that respect, they stopped the beatings. There were no marks from the beatings, but serious problems remained with his liver and kidneys. ...”

The trial statements of Khadzhimuradov, as reported by the court, were as follows:

“[V.U. Khadzhimuradov mentioned various instances when he had worked with Aslan Maskhadov and meetings with Shamil Basayev ... He then said that] when they were arrested, two Stechkin pistols and one PM pistol were seized. The Stechkin pistols were attributed to Maskhadov and Murdashev and the PM pistol to him, although he had nothing to do with that pistol or any other weapon. During the early period after their arrest, while being held in Vladikavkaz, they were suspected of involvement in the hostage-taking in the town of Beslan and were beaten up and told to confess. The beatings stopped when [the authorities] became convinced that they had not been involved. ...”

As regards Yusupov, the court judgment referred to the following statement made by him during the trial:

“On the morning of 8 March 2005 ... he went out of the house and was arrested. In the afternoon of that day they were transported to the village of Khankala, and on 10 March 2005 were taken by helicopter to the airport of the town of Beslan and from there immediately to the town of Vladikavkaz, where for a month and a half they were beaten and told to confess to the attack on the school in Beslan. The beatings stopped only when it became clear that these suspicions were unfounded. ...”

The court noted the following with regard to the complaints made by the accused concerning beatings during the pre-trial stage of the investigation:

“At the court hearing, the arguments of the accused ... were carefully checked. In respect of these arguments the Directorate General of the Prosecutor General’s Office with responsibility for the Southern Federal District carried out an inquiry, as a result of which it was decided on 8 November 2005 not to initiate criminal proceedings in that connection. The said decision was not appealed against by the defence ... In connection with the complaints ... a forensic examination was carried out which [did not detect any injuries or traces] ... . The court also takes note of the fact that, according to the accused, they had been beaten to make them confess to [the attack on the school in Beslan] and had not been required to [admit] anything else. They did not make any confessions in that connection and are not accused on account of those acts. They were questioned at the pre-trial stage of the investigation in the presence of their counsel; this also excluded the possibility of violence being used against them. Regard being had to the above circumstances, the court rejects the arguments of the accused alleging the use of inadmissible means of investigation as unfounded and unsubstantiated ...”

It is unclear whether any further appeal proceedings were brought against this judgment.

The Interment and Burial Act (no. 8-FZ, dated 12 January 1996) contains the following provisions:

“The present Federal Law defines interment as the ritual actions of burying a body (or its remains) of a person after his or her death in accordance with customs and traditions which are not contrary to sanitary or other requirements. The interment may be carried out by way of placing the body (or its remains) in the earth (burial in a grave or in a vault), in fire (cremation with subsequent burial of the urn with ashes), in water (burial at sea). ...”

“1. The locations of interment are specially designated [in accordance with relevant rules] areas with ... cemeteries for burial of bodies (remains) of the dead, walls of sorrow for storage of urns with ashes of the dead ..., crematoriums ... as well as other buildings ... designed for carrying out burials of the dead. ...”

“1. The statement of wishes of a person concerning the dignified treatment of his or her body after death (the will of the dead) is a wish expressed in oral form in the presence of witnesses or in writing:

- about consent or lack of consent to undergo an autopsy;

- about consent or lack of consent to have parts or tissues of the body removed;

- to be buried in a specific location, in accordance with a specific set of customs and traditions, next to specific people who died previously;

- to be cremated;

- entrusting the fulfilment of these wishes to a specific person.

Actions in respect of the dignified treatment of the body of a dead person should be carried out in accordance with [his or her] wishes, unless there are circumstances that render impossible the fulfilment thereof or if the [national] legislation provides for different rules.

Where a deceased made no statement of wishes, the right to authorise actions specified in part 1 of this section shall belong to a spouse, close family members (children, parents, adopted children and adoptive parents, brothers and sisters, grandchildren and grandparents), other relatives or the legal representative of the dead, and in the absence of such persons, other persons who have assumed responsibility for burying the dead person.”

“The executors of a deceased person’s statement of wishes shall be persons as nominated in the statement, if they agree to act accordingly. Where there is no specific indication regarding the executors of the statement of wishes or if the nominated persons do not agree to act accordingly, the directions in the statement shall be executed by the surviving spouse, close family members or other relatives or legal representatives of the deceased. In the event of a reasoned refusal by the nominated persons to execute the directions of the deceased’s statement of wishes, he or she may be buried by another person who has agreed to assume this obligation, or by a specialised funeral service.”

“1. On the territory of the Russian Federation every human being shall be guaranteed that after his or her death interment will be carried out regard being had to his or her wishes, with the provision for free of a plot of land for burial of a body (remains) or ashes in accordance with the present Federal Act. ...”

“A spouse, close family members, other relatives, legal representatives of a deceased person or another person who has assumed the obligation to bury the deceased, shall all enjoy the following guarantees:

(1) the issuance of documents necessary for interment of a deceased within one day from the time when the cause of death is established; in cases where there were reasons to place the deceased in a mortuary for an autopsy, the delivery of the body of the deceased at the request of a spouse, close family members, other relatives, legal representative or another person who has assumed the obligation to bury the deceased cannot be delayed for more than two days from the time when the cause of death is established; ...”

Section 3 of Russian Federation Law No. 130-FZ (the Suppression of Terrorism Act) defines terrorism as follows:

“... violence or the threat of its use against physical persons or organisations, and also destruction of (or damage to) or the threat of destruction of (or damage to) property and other material objects which creates a danger for people’s lives, causes significant loss of property or entails other socially dangerous consequences, perpetrated with the aim of undermining public safety, intimidating the population or exerting pressure on State bodies to take decisions favourable to terrorists or to satisfy their unlawful property and/or other interests; an attempt on the life of a State or public figure, committed with the aim of halting his or her State or other political activity or in revenge for such activity; or an attack on a representative of a foreign State or an official of an international organisation who is under international protection, or on the official premises or means of transport of persons under international protection, if this act is committed with the aim of provoking war or of straining international relations.”

Terrorist activity within the meaning of the Act encompasses:

“(1) organisation, planning, preparation and commission of a terrorist act;

(2) incitement to commit a terrorist act or violence against physical persons or organisations, or to destroy material objects for terrorist purposes;

(3) organisation of an illegal armed formation, a criminal association (criminal organisation) or an organised group for the commission of a terrorist act, or participation therein;

(4) recruitment, arming, training and deployment of terrorists;

(5) intentional financing of a terrorist organisation or terrorist group or other assistance provided thereto.”

Section 3 defines a terrorist act as:

“... the direct commission of a crime of a terrorist nature in the form of an explosion, an act of arson, the use or threat of the use of nuclear explosive devices or of radioactive, chemical, biological, explosive, toxic, or strong-acting poisonous substances; destruction of, damage to or seizure of means of transport or of other objects; attempts on the life of State or public figures or of representatives of national, ethnic, religious or other population groups; seizure of hostages or abduction of persons; causing of danger to the life, health or property of an indefinite number of persons by creating the conditions for accidents or disasters of a technogenic character or a real threat of such danger; the spreading of threats in any form or by any means; other actions that endanger people’s lives, cause significant loss of property or entail other socially dangerous consequences.”

In the same section a terrorist is defined as:

“... a person who takes part in carrying out terrorist activity in any form.”

On 26 October 2002 a terrorist attack took place in the Nord-Ost Theatre in the city of Moscow, resulting in a hostage incident which produced heavy casualties, including the death of several dozen hostages (see Finogenov and Others v. Russia, nos. 18299/03 and 27311/03, §§ 8-14, ECHR 2011 (extracts)).

Shortly after the attack, on 11 December 2002, Russia adopted changes to the Suppression of Terrorism Act by adding section 16(1), which reads as follows:

“[The] interment of terrorists who die as a result of the interception of a terrorist act shall be carried out in accordance with the procedure established by the Government of the Russian Federation. Their bodies shall not be handed over for burial and the place of their burial shall remain undisclosed.”

On the same date Russia also adopted changes (FZ-No. 170) to the Interment and Burial Act (see paragraph 116 above) by adding section 14(1):

“[The] interment of persons against whom a criminal investigation in connection with their terrorist activities has been closed because of their death following interception of the said terrorist act shall take place in accordance with the procedure established by the Government of the Russian Federation. Their bodies shall not be handed over for burial and the place of their burial shall not be revealed.”

Decree no. 164 of the Government of the Russian Federation dated 20 March 2003, adopted in accordance with section 16(1) of the Suppression of Terrorism Act, defines the procedure for the interment of persons whose death was caused by the interception of terrorist acts committed by them:

“... 3. Interment of [these] persons shall take place in the locality where the death occurred and shall be carried out by agencies specialising in funeral arrangements, set up by organs of the executive branch of the subjects of the Russian Federation or by organs of local government ...

Services provided by the specialist funeral agency in connection with the interment of [these] persons shall include: processing of documents necessary for interment; clothing of the body; provision of a grave; transfer of body (remains) to the place of burial (cremation); burial.

The transfer of the body (remains) to the place of burial (cremation) by rail or air shall be carried out on the basis of a transfer permit issued under an established procedure.

The place of burial shall be determined with reference to the limitations laid down by the Interment and Burial Act.

For the purposes of the burial the official carrying out the preliminary investigation shall send the necessary documents to the specialist funeral agency, including a copy of the decision to close the criminal case and the criminal investigation with regard to [these] persons; he or she shall also send a statement confirming the death to the civilian registry office in the person’s last place of permanent residence.

The relatives of the persons [concerned] shall be notified by the official conducting the preliminary investigation of the location of the registry office from which they can obtain a death certificate.

At the discretion of the official carrying out the preliminary investigation, the relatives of [these] persons may be provided with copies of the medical documents concerning the death, produced by a medical organisation, and the report on the autopsy (if conducted); personal belongings shall also be returned if they are not subject to confiscation.

The specialist funeral agency shall produce a report on the completed burial, which shall be sent to the official conducting the preliminary investigation; the document shall become part of the criminal case file.”

On 28 June 2007 the Constitutional Court of the Russian Federation examined and, in essence, rejected the complaints of a number of individuals alleging that section 14(1) of the Interment and Burial Act and Decree no. 164 of the Government of the Russian Federation dated 20 March 2003 were unconstitutional, see Sabanchiyeva and Others v. Russia (dec.), no. 38450/05, 6 November 2008. The ruling stated, in particular, that the impugned legal provisions were, in the circumstances, necessary and justified. The court reached the following conclusions regarding the legitimate aims and necessity of the legislation in question:

“... At the same time the interest in fighting terrorism, and in preventing terrorism in general and specific terms and providing redress for the effects of terrorist acts, coupled with the risk of mass disorder, clashes between different ethnic groups and aggression by the next of kin of those involved in terrorist activity against the population at large and law-enforcement officials, and lastly the threat to human life and limb, may, in a given historical context, justify the establishment of a particular legal regime, such as that provided for by section 14(1) of the Federal Act, governing the burial of persons who escape prosecution in connection with terrorist activity because of their death as a result of the interception of a terrorist act ... Those provisions are logically connected to the provisions of paragraph 4 of Recommendation 1687 (2004) of the Parliamentary Assembly of the Council of Europe on combating terrorism through culture, dated 23 November 2005, in which it was stressed that extremist interpretations of elements of a particular culture or religion, such as heroic martyrdom, self-sacrifice, apocalypse or holy war, as well as secular ideologies (nationalist or revolutionary) could also be used for the justification of terrorist acts.

3.2. Action to minimise the informational and psychological impact of the terrorist act on the population, including the weakening of its propaganda effect, is one of the means necessary to protect public security and the morals, health, rights and legal interests of citizens. It therefore pursues exactly those aims for which the Constitution of the Russian Federation and international legal instruments permit restrictions on the relevant rights and freedoms.

The burial of those who have taken part in a terrorist act, in close proximity to the graves of the victims of their acts, and the observance of rites of burial and remembrance with the paying of respects, as a symbolic act of worship, serve as a means of propaganda for terrorist ideas and also cause offence to relatives of the victims of the acts in question, creating the preconditions for increasing inter-ethnic and religious tension.

In the conditions which have arisen in the Russian Federation as a result of the commission of a series of terrorist acts which produced numerous human victims, resulted in widespread negative social reaction and had a major impact on the collective consciousness, the return of the body to the relatives ... may create a threat to social order and peace and to the rights and legal interests of other persons and their security, including incitement to hatred and incitement to engage in acts of vandalism, violence, mass disorder and clashes which may produce further victims. Meanwhile, the burial places of participants in terrorist acts may become a shrine for some extremist individuals and be used by them as a means of propaganda for the ideology of terrorism and involvement in terrorist activity.

In such circumstances, the federal legislature may introduce special arrangements governing the burial of individuals whose death occurred as a result of the interception of a terrorist act in which they were taking part. ...”

The ruling further noted that the application of the measures prescribed in the legislation concerned could be regarded as justified if proper procedural safeguards, such as effective judicial review, were in place to protect individuals from arbitrariness. The court noted that Articles 123-127 of the Code of Criminal Procedure provided for such review (see paragraph 142 below).

In sum, the court upheld the impugned provisions as being in conformity with the Constitution but at the same time interpreted them as requiring that the authorities not bury bodies unless a court confirmed the competent authority’s decision. It reasoned as follows:

“... The constitutional and legal meaning of the existing norms presupposes the possibility of bringing court proceedings to challenge a decision to discontinue, on account of the deaths of the suspects, a criminal case against or prosecution of participants in a terrorist act. Accordingly, they also presuppose an obligation on the court’s part to examine the substance of the complaint, that is, to verify the lawfulness and well-foundedness of the decision and the conclusions therein as regards the participation of the persons concerned in a terrorist act, and to establish the absence of grounds for rehabilitating [the suspects] and discontinuing the criminal case. They thus entail an examination of the lawfulness of the application of the aforementioned restrictive measures. Until the entry into force of the court judgment the deceased’s remains cannot be buried; the relevant State bodies and officials must take all necessary measures to ensure that the bodies are disposed of in accordance with custom and tradition, in particular through the burial of the remains in the ground ... or by [cremation], individually, if possible, and to ensure compliance prior thereto with the requirements concerning the identification of the deceased ... the time, location and cause of death. ...”

Judge G.A. Gadzhiyev issued a separate opinion in which he agreed that the impugned provisions were in conformity with the Constitution but held a different view as to how they should be interpreted. The opinion stated as follows:

“... if the relevant law-enforcement agencies find, as a result of a preliminary investigation, that a terrorist act has been committed and that a given person was involved, but the criminal proceedings against that person ... are discontinued on account of his or her death following interception of the terrorist act, and if they then conclude that the decision to return the body to the family for burial is capable of threatening public order and peace and the health, morals, rights, lawful interests and safety of others, they have the right to take a decision refusing to hand over the body and applying special arrangements for burial.

At the same time, in the event of a refusal to return the body of an individual whose death occurred as the result of the interception of a terrorist act committed by him, the authorities competent to take a decision concerning the burial must secure compliance with all the requirements concerning the establishment of the deceased’s identity, the time and place of death, the cause of death, the place of burial and the data necessary for the proper identification of the grave (a given location and number). The burial must take place with the participation of the relatives, in accordance with custom and tradition and with humanitarian respect for the dead. The administrative authorities of a State governed by the rule of law must respect the cultural values of a multiethnic society transmitted from generation to generation. ...”

Judge A.L. Kononov issued a dissenting opinion in which he described the legislation in question as incompatible with the Constitution. In particular, he noted:

“... The impugned norms, banning the return of the deceased’s bodies to their relatives and providing for their anonymous burial, are, in our view, absolutely immoral and reflect the most uncivilised, barbaric and base views of previous generations. ...

The right of every person to be buried in a dignified manner in accordance with the traditions and customs of his family hardly requires special justification or even to be secured in written form in law. This right is clearly self-evident and stems from human nature as, perhaps, no other natural right. Equally natural and uncontested is the right of every person to conduct the burial of a person who is related and dear to them, to have an opportunity to perform one’s moral duty and display one’s human qualities, to bid farewell, to grieve, mourn and commemorate the deceased, however he may be regarded by society and the state, to have the right to a grave, which in all civilisations represents a sacred value and the symbol of memory. ...”

On 14 July 2011 the Constitutional Court of the Russian Federation examined a complaint lodged by two individuals challenging the constitutionality of sub-part 4 of the first part of Article 24 (Grounds for a decision refusing to institute or to discontinue criminal proceedings) and the first part of Article 254 (Discontinuance of criminal proceedings in a court hearing) of the Code of Criminal Procedure. The court concluded that the above-mentioned statutory provisions were unconstitutional, in so far as they provided for a possibility of terminating a criminal case owing to the death of a suspect (or an accused person) without obtaining the consent of that person’s close relatives. The court noted, in particular, as follows:

“... the respect for fundamental procedural guarantees of individual rights, including the presumption of innocence, must be secured also in resolving the question concerning the termination of a criminal case with reference to non-rehabilitating circumstances. In taking their decision to refuse the institution of a criminal case or to terminate the criminal case at the pre-trial stages of the criminal proceedings, the competent bodies should take it as a point of departure that persons in respect of whom the criminal proceedings have been discontinued [were not pronounced guilty of an offence] and cannot be viewed as such – in the constitutional sense these persons can only be regarded as having been involved in criminal proceedings at the said stage owing to the relevant suspicions or accusations ...

At the same time, by discontinuing a criminal case owing to the death of a suspect (or an accused) [the authority] also stops the process of proving his or her guilt, but with this the accusation or suspicion is not being lifted, quite the contrary; in reality [the authority] reaches a conclusion as to the commission of the criminal act by ... a specific person and the impossibility of criminal prosecution owing to the said person’s death. By this logic, the person in question, without the adoption or entry into force of any verdict, is declared guilty, and this constitutes a breach by the State of its duty to secure the judicial protection of that person’s honour, dignity and good name protected by [various provisions of] ... the Constitution, and as regards the persons whose interests may be affected by this decision – it constitutes a breach of their right of access to a court ...

... [in other words,] the termination of a criminal case with reference to nonrehabilitating circumstances in general is possible only if the rights of the participants in the criminal proceedings are respected, which means, in particular, that there is a need to secure the consent of the suspect (or the accused person) to take [such decision] ...

... If, however, the person in question objects to [such a decision], he must be entitled to have the case against him proceed to the stage of its examination by the trial court ...

[The court, having analysed the applicable domestic provisions, concludes that] the Code of Criminal Procedure does not provide that [the relatives of the deceased person in respect of whom the criminal case was discontinued] have any rights which would allow them to protect the rights of their deceased formerly accused relative. Since the interested persons, and first of all the close relatives of the deceased, are not allowed to take part in the proceedings, the [relevant] procedural decisions ... are taken by an investigator or a court – without participation of the defence ...

Such limitations do not have an objective or reasonable justification and entail a breach of [the constitutional rights of the persons in question] ...

[The court further decides that] the protection of the rights and legal interests of the close relatives of the deceased person ... aimed at his or her rehabilitation should take place by the provision to them of the necessary legal status and the resulting legal rights within the framework of the criminal proceedings ...

[The court concludes that the rights provided for by Article 125 of the Code of Criminal Procedure were insufficient to guarantee an adequate level of judicial protection to the interested persons ...]

[Thus, in cases where] the close relatives object to the discontinuance of the proceedings owing to the death of the formerly suspected or accused person, the competent investigative body or the court should proceed with the examination of the case. At the same time, the interested persons should enjoy the same rights as the deceased person [himself or herself] would have enjoyed. ...”

Article 105 (“Murder”) of the Criminal Code, as in force at the relevant time, read as follows:

“1. Murder, that is an intentional infliction of death on another person, shall be punishable by deprivation of liberty for a term of six to fifteen years.”

Article 205 (“Terrorism”) of the Criminal Code, as in force at the relevant time, read as follows:

“1. Terrorism, that is the commission of an explosion, arson or other action, creating a danger for people’s lives, or causing considerable pecuniary damage or other socially dangerous consequences, if such actions were committed with the aim of undermining public safety, threatening the population or influencing decisionmaking by the authorities, or the threat of committing such actions with the same aims, shall be punishable by deprivation of liberty for a term of eight to twelve years.”

Article 5 of the Code of Criminal Procedure defines close relatives as spouses, parents, children, adoptive parents, adopted children, brothers and sisters, grandparents and grandchildren.

Part 1 of Article 11 of the Code provides that:

“... a court, a prosecutor and an investigator shall be obliged to inform a suspect, an accused, a victim, a civil claimant and other participants in criminal proceedings of their respective rights, duties and liability and to provide them with the possibility of enforcing such rights.”

Articles 20 and 21 of the Code and Chapter 16 of the Criminal Code of Russia provide that cases resulting in the death of a person are cases of public prosecution which are investigated and prosecuted irrespective of the will of the victim of the crime. In all cases displaying signs of the commission of a crime the relevant officials take the measures set out in the Code of Criminal Procedure aimed at an investigation into the event, and the identification of the person responsible or the persons guilty of the criminal offence in question.

Article 22 of the Code describes the status of victim in the criminal proceedings:

“The victim, his legal representative and (or) legal counsel shall have the right to take part in the criminal prosecution of the accused ...”

Article 24 of the Code lists possible grounds for a decision refusing to institute a criminal case or discontinuing the proceedings:

“1. A criminal case cannot be instituted and an instituted criminal case should be discontinued on one of the following grounds:

(4) the death of an accused or a suspect, except for cases where the continuation of the proceedings is necessary for rehabilitation of the deceased person. ...”

Article 27 of the Code also states that:

“1. Criminal prosecution in respect of a suspect or an accused shall be discontinued with reference to one of the following grounds: ...

(2) discontinuance of a criminal case with reference to [one of the grounds mentioned in part 1 of Article 24, including sub-part 4] ...”

Part 2 of Article 27 lists the situations in which it is necessary for the relevant official to obtain the consent of a suspect or an accused to discontinue a criminal prosecution. There is no need to obtain anyone’s consent in the event of this person’s death.

Article 42 of the Code defines the victim as a “physical person, who has sustained physical, pecuniary or non-pecuniary damage” as a result of the criminal offence, the decision on recognising someone as a victim being taken by an investigator or a court. It further states that:

“... 2. The victim shall have the right: ...

(4) to submit evidence;

(5) to make challenges and applications; ...

(8) to appoint a representative;

(9) to take part, with leave from an [investigator] in investigative actions which take place at his or her request ...; ...

(12) upon termination of the preliminary investigation, to study all the materials of the criminal case ...;

(13) to receive copies of decisions instituting a criminal case, recognising him or her as a victim or refusing to do so, on discontinuance of a criminal case ...; ...

(22) to avail himself or herself of other rights set out in this Code.”

Part 8 of this provision states as follows:

“In criminal cases concerning offences which resulted in the death of a person, the rights of the victim, as set out in the present provision, shall be transferred to one of his close relatives.”

Article 45 of the Code states as follows:

“1. A victim ... may be represented by counsel ...

Personal participation in a criminal case by the victim ... does not preclude him or her from enjoying the right to be represented [by counsel in that criminal case].”

Article 19 of the Code provides for the possibility of appeal against the decisions of various authorities, in accordance with the procedure set out in the Code and in particular Articles 123-127 thereof:

“The actions (or inaction) and decisions of the body of inquiry, the inquiring officer, the investigator, the public prosecutor or the court shall be amenable to appeal in accordance with the procedure established in the present Code, by the participants in the criminal court proceedings and by other persons in so far as the procedural actions in question and the procedural decisions adopted affect their interests.”

“1. The public prosecutor shall consider the complaint within three days of the date of its receipt. In exceptional cases, where it is necessary to request that additional materials be supplied or other measures be taken for checking the complaint, it shall be admissible to consider it within a period of up to ten days; the applicant shall be duly informed.

Following consideration of the complaint, the public prosecutor shall take a decision allowing it in whole or in part or rejecting it.

The applicant shall be immediately notified of the decision taken on the complaint and of the further procedure for lodging an appeal against it.

In the cases stipulated by the present Code the inquiring officer, the investigator or the public prosecutor shall have the right to lodge an appeal with a higher-ranking prosecutor against the actions (inactions) and decisions of the public prosecutor.”

“1. Decisions by the inquiring officer, the investigator and the public prosecutor concerning a refusal to institute a criminal case or the termination of the criminal case, and other decisions and actions (or lack of action) on their part which are liable to inflict damage on the constitutional rights and freedoms of the participants in the criminal court proceedings or interfere with citizens’ access to the administration of justice, may be appealed against before the district court at the place where the preliminary inquiry is conducted.

The complaint may be lodged with the court by the applicant or his or her defence counsel, legal representative or representative, either directly or through the inquiring officer, investigator or public prosecutor.

The judge shall check the legality and well-foundedness of the actions (or lack of action) and the decisions taken by the inquiring officer, the investigator and the public prosecutor, not later than five days after the date of the lodging of the complaint, at a court session in the presence of the applicant and his or her defence counsel, legal representative or representative, if they are taking part in the criminal case, other persons whose interests are directly affected by the action (or lack of action) or by the decision against which the appeal has been lodged, and the public prosecutor. Failure to attend by persons who have been duly informed of the time of consideration of the complaint and have not insisted that they be present, shall not be seen as an obstacle to consideration of the complaint by the court. Complaints shall be considered by the court at a public hearing unless stipulated otherwise. ...

At the start of the court session, the judge shall announce what complaint is being considered, introduce himself to the persons attending the court session and explain their rights and responsibilities. The applicant, if he is taking part in the court session, shall then adduce the grounds for the complaint, following which evidence shall be heard from other persons in attendance. The applicant shall have the right to respond.

After considering the complaint, the judge shall adopt one of the following decisions:

(1) a decision finding the action (or lack of action) or the decision of the corresponding official to be illegal or ill-founded and finding him or her liable to provide redress for the violation;

(2) a decision rejecting the complaint.

Copies of the judge’s decision shall be sent to the applicant and to the public prosecutor.

The lodging of a complaint shall not suspend performance of the action and the decision appealed against unless the body of inquiry, the inquiring officer, the investigator, the public prosecutor or the judge deems it necessary.”

“1. Complaints and prosecutors’ appeals against judgments, rulings and resolutions of the courts of first instance and appeal courts, as well as complaints and prosecutors’ appeals against court decisions taken in the course of the pre-trial proceedings in the criminal case, shall be lodged in accordance with the arrangements laid down in ... [other provisions of the Code].

Complaints and prosecutors’ appeals against court decisions which have acquired legal force shall be lodged in accordance with the arrangements laid down by [other provisions of the Code].”

Article 148 of the Code establishes the arrangements governing appeals against decisions not to institute criminal proceedings:

“1. If there are no grounds for the institution of criminal proceedings the public prosecutor, the investigator, the body of inquiry or the inquiring officer shall take a decision not to institute criminal proceedings. A decision not to institute criminal proceedings on the ground set out in point 2 of the first paragraph of Article 24 of the present Code shall be admissible only with respect to the individual concerned.

When taking the decision not to institute criminal proceedings after checking the available information about the crime based on the suspicion of its perpetration by the person or persons concerned, the public prosecutor, the investigator or the body of inquiry shall be obliged to consider the possibility of instituting criminal proceedings against the person who reported or spread false information about the crime on a charge of making deliberately false accusations.

The decision not to institute criminal proceedings following verification of the information about a crime disseminated through the mass media must be made public.

A copy of the decision not to institute criminal proceedings shall be sent to the applicant and to the public prosecutor within 24 hours of the time the decision was given. In this case, the applicant shall be informed of his or her right to appeal against the decision and of the procedure for lodging an appeal.

A decision not to institute criminal proceedings may be appealed against to the prosecutor or the court in accordance with the procedure laid down in Articles 124 and 125 of the present Code.

If the prosecutor finds a decision not to open criminal proceedings to be unlawful or unfounded, he or she shall revoke the decision not to open the case and shall institute criminal proceedings in the manner established by the present article or return the materials for additional verification.

If the judge finds the decision not to institute criminal proceedings to be unlawful or unfounded, he or she shall adopt the corresponding decision, forward it for execution to the public prosecutor and notify the applicant.”

Article 254 of the Code establishes the arrangements governing appeals against a decision to discontinue criminal proceedings if such decision is taken by a court.

By Resolution no. 16 dated 1 November 1985 “On the practice of application by the courts of the legislation governing the participation of a victim in criminal proceedings” the Plenary Supreme Court summarised and explained the existing practice in relation to the status of the victim in criminal proceedings under the old 1960 Code of Criminal Procedure:

“... 2. ... is recognised as a victim an individual who has sustained non-pecuniary, physical or pecuniary damage directly. The recognition of such individual as the victim does not depend on his age, physical or psychological condition. ...

Since ... in cases about crimes which resulted in the death of a victim, the [relevant] rights [are transferred] to [his or her] close relatives, one of which, regard being had to the agreement between them, is recognised as the victim. If a few persons outside the circle of the close relatives of the deceased insist on having victim status, they may also be recognised as such ...”

By Resolution no. 17 dated 29 June 2010 “On the practice of application by the courts of the norms governing the participation of a victim in criminal proceedings”, which fully replaced Resolution no. 16 of 1 November 1985, the Plenary Supreme Court summarised and explained the existing practice in relation to the status of the victim in criminal proceedings under the new 2001 Code of Criminal Procedure:

“... 2. In accordance with the law, a victim, being a physical person who has suffered physical, pecuniary or non-pecuniary damage ... has in the criminal proceedings his or her own interests, for the protection of which he or she, as a participant in the criminal proceedings on the side of the prosecution, enjoys the rights of a party.

A person who has suffered as a result of a criminal offence shall be recognised as a victim irrespective of his or her nationality, age, physical or psychological condition or other aspects of his or her personality, and irrespective of whether anyone has been identified as being involved in the commission of that offence.

The courts should also take into account any damage inflicted on the victim by the offence, or by a criminally prohibited act committed in a state of insanity. ...

In accordance with part 1 of Article 42 of the Code of Criminal Procedure a person who sustained damage [from an offence] shall acquire the rights and obligations set out in the legislation governing criminal procedure as of the time of adoption by a [competent] investigator ... or a court of the decision recognising that person as a victim. At the same time, it should be borne in mind that the legal status of that person as a victim is determined on the basis of his or her factual situation... [thus, this procedural decision does nothing but reflect the existing factual situation and does not determine it].

The person in question can obtain recognition as a victim by making a relevant application ... The refusal to recognise someone as a victim, as well as the inaction of the [relevant official] leading to a failure to recognise that person as a victim can be appealed against in court by way of a pre-trial procedure in a criminal case set out in Articles 124 and 125 of the Code of Criminal Procedure. ...

In criminal cases concerning crimes which resulted in the death of a person, the rights of a victim shall be transferred to one of his or her close relatives (part 8 of Article 42 of the Code of Criminal Procedure). By virtue of part 4 of Article 5 of the Code of Criminal Procedure the close relatives are spouses, parents, children, adoptive parents, adopted children, brothers and sisters, grandparents and grandchildren.

If the criminal offence affected the rights and legal interests of a few close relatives at the same time and they all insist on acquiring the rights of victims, these persons can also be recognised as victims. ...

The meaning of part 1 of Article 45 of the Code of Criminal Procedure is that representatives of the victim ... could be not only counsel, but also other persons ... capable of providing them with qualified legal assistance. ...

The courts must comply with the requirements of the law in that the victim, acting with the aim of using his ... powers as set out in the legislation on criminal procedure ... has the right to receive copies of the decision on the institution of a criminal case, recognition of his victim status ... on the discontinuance of a criminal case ... and copies of other procedural documents affecting his interests (Article 42 of the Code of Criminal Procedure). ...

On the basis of the principle of equality of the rights of the parties (Article 244 of the Code of Criminal Procedure) a victim has the same rights as the defence to make challenges and applications, to submit evidence, to participate in its examination, to plead ...

The victim, his or her representative or legal representative at any stage of the criminal proceedings should be given an opportunity to inform the court about his or her position on the substance of the case and the arguments he or she deems necessary to justify that position. At the same time, the court should take into account the arguments of the victim in respect of the questions which affect his or her rights and legal interests, and to give them a reasoned assessment in taking the judicial decision. ...

With a view to creating the necessary conditions for the victim to carry out his procedural duties and to enforce his rights ..., the courts, where there are justified grounds, should take measures to assist the victim in collecting the evidence (receipt of documents, lodging of requests for certificates, etc.).

The victim, his legal representative, representative ... shall have the right to take part in all court proceedings in the examined case for the protection of his or her rights and legal interests. In order to secure that right, the presiding judge should inform them of the date, time and place of the court proceedings. ...”