FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Applications no. 57941/00  
by Yusup MUSAYEV, 
no. 58699/00  
by Suleyman MAGOMADOV and Tamara MAGOMADOVA 
and 60403/00 
by Malika LABAZANOVA and Khasan ABDULMAZHIDOV 
against Russia

The European Court of Human Rights (First Section), sitting on 13 December 2005 as a Chamber composed of:

Mr C.L. Rozakis, President
 Mr L. Loucaides
 Mrs F. Tulkens
 Mr P. Lorenzen
 Mrs N. Vajić
 Mrs S. Botoucharova, 
 Mr A. Kovler, judges
and Mr S. Nielsen, Section Registrar,

Having regard to the above applications lodged on 25 May, 20 June and 29 June 2000,

Having regard to the decisions to grant priority to the above applications under Rule 41 of the Rules of Court.

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants are:

1) Yusup Said-Aliyevich Musayev, born in 1940;

2) Suleyman Anarbekovich Magomadov, born in 1957;

3) Tamara Saidovna Magomadova, born in 1953;

4) Malika Alviyevna Labazanova, born in 1955;

5) Khasan Magomedovich Abdulmazhidov, born in 1940.

All applicants are Russian nationals and residents of Grozny, Chechnya. They are represented before the Court by lawyers of the Human Rights Centre Memorial (Moscow) and the European Human Rights Advocacy Centre - EHRAC (London). The respondent Government are represented by Mr P.A. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.

A.  The circumstances of the case

The submissions of the parties on the facts concerning the circumstances of the applicants’ relatives’ deaths and the ensuing investigations are set out in Sections 1 - 5 below. A description of the materials submitted to the Court is contained in Part B.

The applicant’s families lived in a settlement referred to by local residents as Novye Aldy, situated administratively in the Oktyabrskiy and Zavodskoy districts of Grozny.

In October 1999 hostilities resumed in Chechnya between the Russian forces and the Chechen fighters. Grozny and its suburbs came under heavy bombardment. As of late December 1999 northern parts of the city came under control of the Russian forces. At the end of January the central parts of the city were taken over by the Russian troops. The first applicant submits that as of 23 January 2000 their district in the south of the city was no longer shelled, because the Russian troops had been stationed about 500 metres away, at Okruzhnaya Street. According to the first applicant, there were no Chechen fighters in Novye Aldy, because there were no large administrative buildings which they could have used as defence positions.

1.  The first applicant’s account of the events of 5 February 2000

In winter 1999 – 2000 the first applicant and several members of his extended family remained in Grozny. The first applicant lived at 116 Voronezhskaya Street. Several of his relatives lived in the neighbourhood. According to the applicant, most of the over 6,000 persons who had lived in Novye Aldy before the hostilities fled, and only a few hundred remained, mostly elderly.

The first applicant recalls that on 4 February 2000 the Russian forces entered Novye Aldy. Armoured personnel carriers (APCs) and other military vehicles were stationed at crossroads, the settlement was surrounded and blocked from all sides. Large groups of military servicemen went from one house to another, checking documents and inspecting the cellars and lofts of the buildings. According to the first applicant, they behaved in an orderly and polite fashion. In the evening the soldiers left, having warned several inhabitants to stay inside and to beware of a certain military unit which could come on the following day.

Early in the morning on 5 February 2000 the first applicant heard shots of automatic guns in the neighbourhood. He was at his cousins’ house at 122 Voronezhskaya Street with his three cousins, Khasan Musayev, Aindi Akhmadov and Umar Musayev.

Another of the applicant’s cousins, Abdurakhman Musayev, rushed into the courtyard and told them that early in the morning he went with his two nephews, Suleyman Musayev and Yakub Musayev, to fetch some water from a well. On their way back with a sledge loaded with several water cans they were stopped by a group of Russian soldiers who ordered them to approach. Abdurakhman, who had been walking behind his nephews, managed to escape unseen. He was very worried about their safety and he and Umar Musayev decided to go look for them. They went outside, and it was the last time they were seen alive.

Soon afterwards their neighbour Aba M., who was about 80 years old, rushed into the courtyard with her 13-year old grandson Suleyman and told them that in their street in front of the house no. 112 there were two bodies. The first applicant and his cousins were afraid that these could be their cousins.

Several minutes later a group of military entered the courtyard, shouting and firing from automatic weapons. They ordered the men, including the 13-year old Suleyman, to lie down in the snow. They then searched the house and the courtyard, having ordered Aba M. to walk in front of them. After about half an hour, while the first applicant and others were still lying on the ground, the military “calmed down” and the most senior among them, about 35-40 years old, ordered them to leave. The first applicant, worried about his cousins and nephews, asked their permission to go into the street and to look at the two bodies. The servicemen ordered him to stay inside “unless he wanted to be lying beside them”. They then proceeded into Umar Musayev’s house, next one on the Voronezhskaya Street.

For the following few hours there was continued gunfire around, and the first applicant did not dare to go outside. After about 3 p.m. he heard women’s cries in the street and went out. He saw his cousin Malika Ganayeva and her daughter Larisa, screaming. They found six bodies in the street, all had been shot. Four bodies in a pile were on the corner of the Voronezhskaya and Khoperskaya Streets. They were Alvi Ganayev, Malika Ganayeva’s husband, and their two sons, Aslanbek and Salambek. The fourth body was the first applicant’s cousin Abdurakhman Musayev. In front of the house at 112 Voronezhskaya Street there were the bodies of Umar Musayev, another of the first applicant’s cousins, and Vakha Khakimov, a neighbour.

The first applicant, his relatives and neighbours started to take the bodies inside the yards. A group of soldiers was still standing at the intersection of the Voronezhskaya and Khoperskaya Streets, and one of them fired a single shot which wounded Ramzan Elmurzayev, a neighbour. He fell down, and other neighbours pulled him inside the courtyard. He died of his wound in the early hours of the next day.

In the late afternoon on the same day the first applicant noticed that the house of his relative Yakub Musayev at 118 Voronezhskaya Street, was on fire. Together with some neighbours they tried to extinguish the flames, but it was too late and the house burnt down entirely.

At about 8 p.m. the same day a relative came and said that they had found the bodies of Suleyman Musayev and Yakub Musayev, the first applicant’s relatives who had been missing since morning when they went to fetch water from a well. Their bodies were found in front of the house 22 Khoperskaya Street. The first applicant submits that they were shot from an automatic gun and a sub-machine gun, because Suleyman’s shoulder was twisted. The first applicant dragged the bodies into the courtyard of a neighbouring house, and the next morning brought them to the house at 116 Voronezhskaya Street, with a sledge.

On 5 February 2000 the first applicant was thus a witness to nine killings, seven of them his relatives. They were:

1)      Umar Musayev, born in 1938;

2)      Yakub Musayev, born in 1949;

3)      Abdurakhman Musayev, born in 1949;

4)      Suleyman Musayev, born in 1965;

5)      Alvi Ganayev, born 1938;

6)      Salambek Ganayev, born in 1969;

7)      Aslanbek Ganayev, born in 1965.

2. Subsequent events as described by the first applicant

The first applicant put the bodies of his relatives in the courtyard of the house at 112 Voronezhskaya Street. Contrary to the local traditions, the applicant and his relatives did not bury the bodies on the same day because they were afraid to go to the cemetery, but also, as some witnesses stated, because they were waiting for some form of an investigation into the killings.

On 7 February 2000 a group of military arrived at Novye Aldy. They went around the settlement and checked documents. They asked why the bodies had not yet been buried, and the first applicant replied that they were afraid to go to the cemetery. The military allegedly advised him to hurry up with the burials and left.

On 8 February 2000 a military Ural truck with soldiers came to the first applicant’s house at 116 Voronezhskaya Street. The applicant submits that some of them were the same soldiers who had been involved in the killings of 5 February. The first applicant tried to enter his courtyard, but the military fired in the air and told him not to approach. They took out anything of value from his and his cousin’s house, stacked it into the truck and left. The first applicant watched their actions from a neighbour’s house, but could not distinguish the registration number plates of the vehicle, which were covered with mud.

On 9 February 2000 a Russian human rights activist Viktor Popkov was in Novye Aldy and filmed the bodies of the first applicant’s relatives and statements by the first applicant, by Malika Ganayeva, the first applicant’s cousin, whose husband and two sons had been killed on 5 February 2000, and by other survivors of the massacre. The first applicant has submitted a copy of the videotape and a transcript of the recording.

On 10 February 2000 there came a group of men in uniforms, who said they were from the Chechnya Prosecutor’s Office. They inspected the bodies still lying at the house no. 112, filled in some papers and collected evidence. The first applicant gave them two bullets from an automatic rifle extracted from the bodies of Suleyman Musayev and Yakub Musayev, and cartridges and bullets collected at the execution sites. The officers assured him that there would be an expert report on those.

On 12 February 2000 a new group of military arrived. They said they were from the military prosecutor’s office for the Northern Caucasus. They too examined the bodies at 112 Voronezhskaya Street, collected more bullets and cartridges.

The first applicant submits that among the evidence collected by the investigators there was a military identification card apparently dropped by a serviceman in the Khoperskaya Street and a note written by one group of soldiers to his neighbours on 5 February 2000 in order to “protect” them, which said: “Guys!!! Do not touch these people. We were here, MSR [motorised rifle company] no. 6 of the regiment no. 245” and an unclear signature of the “company commander”. The first applicant has submitted a copy of that note.

On 12 February 2000 the first applicant and his relatives buried the dead.

He submits that until the end of February 2000 groups of officials continued to come to Novye Aldy, asking the residents about the events.

The first applicant submitted a hand-drawn plan of Novye Aldy with indications of the places to which he refers. He also submitted statements by Aba M., by the parents of Suleyman Musayev and by a neighbour Markha T., who was a witness of the killings in the Voronezhskaya Street.

The first applicant submits that the events of February 2000 have affected him deeply. He underwent several courses of treatment in Chechnya and in Moscow, but despite that he could not sleep, and suffered from headaches and depression.

3.  Killing of Salman Magomadov and Abdula Magomadov

The second and the third applicants submit that in winter 1999 – 2000 they stayed in Ingushetia because of the fighting in Grozny. Their relatives remained in Grozny to look after the family property. They were Salman Magomadov (born in 1940), the second applicant’s brother and the husband of the third applicant, and Abdula Magomadov (born in 1947), the second applicant’s other brother. They stayed in their house at 158 Mazayeva Street. The third applicant and Salman Magomadov were married since 1981 and had five daughters, born in 1973, 1979, 1980, 1985 and 1990.

On 5 February 2000 Russian forces conducted an operation in Novye Aldy, as a result of which numerous houses were burnt and civilians killed. The neighbours later told the applicants that the soldiers started with 176 Mazayeva Street, entered into the houses, killed the inhabitants and burned the houses one by one.

On 10 February 2000 their three neighbours Z., S. and Ya. examined the burnt house at 158 Mazayeva Street, and discovered the remains of Salman and Abdula Magomadov in the cellar. They cleared them from the debris and buried them in the courtyard. The applicants learnt of this while in Ingushetia.

Several days later the second applicant came to Grozny, alerted by the neighbours. In the cellar of the house he discovered some personal belongings of his brothers – a wrist-watch, keys from a flat, a key from a garage and parts of clothes. He also found several bullets from an automatic rifle calibre 5,45 and machine-gun cartridges. In the end of March the remains of the second applicant’s brothers were buried at the local cemetery.

On 19 May 2000 the Civil Registration Office of the Zavodskoy district of Grozny issued death certificates for Salman Anarbekovich Magomadov, aged 59, and Abdula Anarbekovich Magomadov, aged 52. The death occurred on 5 February 2000 in Grozny due to numerous bullet wounds to the head and body.

4.  Killing of Zina Abdulmezhidova and Khuseyn Abdulmezhidov

The fourth and the fifth applicants are wife and husband. During the winter of 1999 – 2000 they remained in Grozny in their house at no. 20 3-d Tsimlyanskiy Lane. Within the same household in a separate house there lived the fifth applicant’s sister and brother, Zina Abdulmezhidova (born in 1940) and Khuseyn Abdulmezhidov (born in 1953).

On 4 February 2000 in the afternoon Russian troops entered the settlement of Novye Aldi. The residents, who had hid in cellars during the months of shelling, went into the streets. The soldiers instructed them to remain at their homes in accordance with the registration of the places of residence, because on the following day there would be a “mopping-up” operation (zachistka) in the settlement. The fourth applicant submits that they had eagerly expected the end of fighting and the entry of the Russian troops and did not worry about the checking of passports.

On 5 February 2000 at about 11 a.m. four military came into the applicants’ house. They were aged about 25-30. They greeted the applicants, checked the passports and left. The fourth applicant then decided to visit her husband’s relatives, the Abdulkhanovs, who lived at 135 Mazayeava Street, to see if the “mopping-up” was over there. Through backyards she got to the Abdulkhanovs’ house.

When she reached their house she met with Akhmed Abdulkhanov, aged 70, sitting in the courtyard. He told her that they had been visited three times and that there were dead bodies everywhere in the street. The fourth applicant opened the gates and saw four bodies of their neighbours, an 80-year old man, two women and a 50-year old man, each one at the gates of their houses. The fourth applicant suggested to Akhmed to take the bodies inside, but he said that the soldiers may return.

The fourth applicant returned to her house and told her husband, the fifth applicant, and his relatives about what she had seen. She also suggested that they should all go into the cellar and hide because even women and old men had been killed, but they refused. Zina Abdulmezhidova told her that they had been checked already and they had nothing to fear. The fifth applicant went to a neighbour’s house.

At about 3 p.m. the fourth applicant heard some loud noise and swearing in the courtyard and opened the door. Zina and Khuseyn Abdulmezhidov also came out and stood in the doorway of their house. In the courtyard there were several soldiers. One of them, tall and dressed in white camouflage, asked the fourth applicant what she was doing there, and she replied that she lived there.

They brought Akhmed Abdoulkhanov from Mazayeva Street with them. He was pale and his lips were blue. He asked the fourth applicant to get some money. She said that they had no money, and had they had any, they would have left as everyone else did. Then the soldiers started to shoot in the air and said that they would kill them all, as they had been ordered.

The fourth applicant ran to her neighbours and managed to get 300 roubles. She gave it to the soldier in white camouflage, but he laughed at her and said it was not enough. The fourth applicant gave him her golden earrings. The military was shouting that they had an order to kill them all and ordered one of the soldiers to take the fourth applicant into the house and to “shake her” there.

The fourth applicant let the soldier enter into the house, ran behind his back and hid behind the heater. The soldier walked up to her and put the automatic gun at her head. The woman fell on her knees and pleaded for her life. The soldier told her that he would be killed if he didn’t kill her. Then they heard shooting in the courtyard and a male voice shouting. The soldier in the room shot at the ceiling and at the walls, and the fourth applicant realised that he had spared her life. She started to cry and thank him, but he told her to keep quiet and walked out.

The fourth applicant heard Khuseyn Abdulmezhidov shouting to his sister to bring his documents, and then there were more shots fired. She later realised that the soldiers first shot Akhmed Abulkhanov in the courtyard, and when her husband’s sister and brother saw this, they ran into their house. Khuseyn Abdulmezhidov had been granted disability and the applicant guessed that he had wanted to produce these papers. Khuseyn Abdulmezhidov and Zina Abdulmezhidova were shot inside the house.

In the meantime the fourth applicant heard her husband, the fifth applicant, calling her from the backyard. She understood that he had heard the noise and shooting in the house and returned. The fourth applicant approached the door and cried in Chechen “Go away”, and her husband escaped unseen by soldiers.

Before leaving the soldiers put the Abdulmezhidovs’ house on fire. Their house and barn with sheep and cows inside burnt down. The fourth and the fifth applicant buried the remains of the fifth applicant’s relatives in the courtyard.

On 16 May 2000 the Civil Registration Office of Zavodskoy district of Grozny issued death certificates for Zina Magomedovna Abdulmezhidova, aged 59, and for Khuseyn Magomedovich Abdulmezhidov, aged 46. In both certificates it was recorded that deaths had occurred on 5 February 2000 in Grozny, due to numerous bullet wounds to head and body.

The fourth applicant submits that she was deeply affected by the events of 5 February 2000, her health has deteriorated significantly. She suffers from hypertension and regular nightmares.

5.  Investigation into the events of 5 February 2000

Soon after the events the first applicant and other relatives of the victims set up a group called Civic Committee “Aldy”, in order to coordinate their efforts in the aftermath of the massacre. The fourth applicant was elected the head of this group.

The applicants submit that on 5 February 2000 at least 60 civilians were killed in the neighbouring settlements of Novye Aldy and Chernorechye in the southern suburbs of Grozny. They refer to the Human Rights Watch Report of June 2000 entitled “February 5: A Day of Slaughter in Novye Aldy”, which puts the blame for extra-judicial executions on the Russian police special units (OMON) and military. The document reports the deaths of the applicants’ relatives, based on the interviews with the applicants and their neighbours. They also refer to the Human Rights Centre Memorial report entitled “Mopping Up. Settlement of Novye Aldy, 5 February 2000 – Deliberate Crimes Against Civilians” («Зачистка». Поселок Новые Алды, 5 февраля 2000 – преднамеренные преступления против мирного населения), which lists the applicants’ relatives and neighbours among 56 civilians murdered on that day (see Part B below).

The applicants also submitted a number of press reports related to the massacre in Novye Aldy and subsequent investigation.

It appears that the applicants did not seek any direct contacts with law-enforcement bodies or with medical doctors immediately after the killings or when they buried the remains of their relatives. Nevertheless the events in Novye Aldi became known to the relevant authorities shortly after 5 February 2000 due to NGO and media reports.

On 5 March 2000 the Grozny Town Prosecutor’s Office opened a criminal investigation into the murder of several inhabitants of the Novye Aldy settlement in Grozny by “unidentified men armed with guns” and looting of property. The investigation was opened under Article 105 part 2 of the Criminal Code – murder of two or more persons in aggravating circumstances.

The Government submit in their memoranda that on 5 March (or 18 March) 2000 the Grozny Town Prosecutor’s Office had opened an investigation into the killing of the inhabitants of the settlements of Novye Aldy and Chernorechye. The investigation established that on 5 February 2000 during the conduct by the federal forces of a special operation in Novye Aldy unknown persons wearing uniforms of the military type and armed with automatic weapons had killed 55 inhabitants of the district, including the applicants’ relatives. The same persons also plundered and destroyed property of the residents. The bodies of the killed with burns and firearm wounds were found by the relatives and fellow residents in the courtyards and the streets of the neighbourhood.

On 25 March 2000 Memorial wrote a letter to the Chief Military Prosecutor about the investigation of the massacre in Novye Aldy. They referred to the conclusions of the military prosecutors that “no federal servicemen took part in the operation which had entailed civilians’ deaths”. Referring to witnesses’ statements, Memorial argued that there were valid reasons to conduct a more detailed investigation into the identity of the perpetrators. Memorial appended to its letter several witnesses’ statements collected by them in March 2000 in Novye Aldy and a list of 67 names of persons apparently killed on that day.

On 27 March 2000 the fifth applicant was granted victim status in the proceedings no. 12011-2000 by an investigator of the Grozny Town Prosecutor’s Office in relation to the murder of his brother, Khuseyn Abdulmezhidov “by detachments of the Ministry of the Interior of the Russian Federation”. This decision was not countersigned by the fifth applicant. It is unclear if similar decisions were taken in respect of the other applicants.

On 6 April 2000 the Chief Military Prosecutor replied to Memorial that their letter of 25 March 2000 has been forwarded to the military prosecutor’s office for the Northern Caucasus for investigation.

On 10 April 2000 the investigator ordered exhumation and a forensic report on the remains of Khuseyn Abdulmezhidov and Zina Abdulmezhidova. The questions put to the expert concerned the nature of wounds and the reasons of deaths. The report was ordered in relation to the following events: “on 5 February 2000 unidentified men in camouflage committed a mass murder of the inhabitants of the Novye Aldy.” The decisions stated that the relatives had agreed to exhumation. On 11 and 15 May 2000 similar decisions were again issued by the same investigator. It is unclear if these reports were carried out and if the fourth and the fifth applicants were familiarized with the experts’ conclusions. It is also unclear if similar orders were issued in respect of all the other victims.

On 21 April 2000 the Military Prosecutor of the Northern Caucasus Military Circuit replied to Memorial and stated that a military prosecutor had conducted a verification of their submissions and on 3 March 2000 refused to open a criminal investigation due to absence of corpus delicti in the military servicemen’ actions. The letter further explained that no servicemen of the Ministry of the Interior or the Ministry of Defence, who are under the supervision of the military prosecutor, had taken part in the operation in Novye Aldy on the date in question. The so called “mopping-up” operation on 5-10 February 2000 in Novye Aldy was conducted by the servicemen of the special police forces (OMON) from St. Petersburg and Ryazan region, and the investigation should be carried out by the Grozny Town Prosecutor. All further complaints and letters should be addressed to that office.

On 11 May 2000 the Chief Military Prosecutor replied to a member of the State Duma, Mr. Kovalev, about the investigation into the Aldy killings. The prosecutor informed him that a criminal investigation was pending and that the investigation was slowed down by a difficult security situation in the region and by the need to identify witnesses of the crimes.

On 15 May 2000 a medical doctor in Grozny issued three medical certificates confirming the deaths by gunfire wounds of Alvi Ganayev, Aslanbek Ganayev and Salambek Ganayev. The certificates referred to an examination of the bodies by a forensic expert and an autopsy, and recorded the place and date of death as Novye Aldy, 5 February 2000.

On 23 May 2000 the civil registration office of the Zavodskoy district of Grozny issued death certificates for Alvi Ganayev, Aslanbek Ganayev, Salambek Ganayev and Suleyman Musayev.

On 9 June 2000 the military prosecutor of military unit no. 20102 (located in Khankala, the main Russian military base in Chechnya) informed NGO Memorial, in response to their requests for information in a number of alleged crimes committed by the military against civilians, that all materials pertaining to the murders in Novye Aldi have been forwarded to the Northern Caucasus Department of the General Prosecutor’s Office.

On 10 September 2000 the “Aldy” group issued a public statement in which it deplored the murders of 5 February 2000, the absence of an effective investigation and lack of any assistance to the victims.

On 1 December 2000 the Committee “Aldy” addressed the President of the Russian Federation, the Chairmen of the State Duma and the Council of the Federation, the Prime Minister and other public figures. The letter described the events of 5 February 2000, asked for an efficient investigation, but also for any kind of urgent assistance to the survivors whose houses were burnt down or plundered.

On 1 December 2000 the fourth applicant on behalf of the “Aldy” group wrote to the General Prosecutor. The letter stated that the relatives of the killed had no information about the progress of the investigation, despite the fact that they had agreed to the exhumation of their relatives’ bodies, in breach of their religious beliefs. They asked him to take urgent measures to carry out a proper investigation, to question the witnesses and to inform them about its progress.

On an unspecified date in 2000 an investigator of the General Prosecutor’s Office Department for the Northern Caucasus issued certificates to the relatives of the killed in Novye Aldy. They contained identical printed text, where only the names of the killed were entered by hand. They read as following: “On 5 February 2000 in the morning in the settlement of Novye Aldy of the Zavodskoy district of Grozny, Chechen Republic, the forces of the Ministry of Defence and of the Ministry of the Interior during a passport check committed mass murders of civilians of the above settlement, including ____. This event is investigated by the Northern Caucasus Department of the General Prosecutor’s Office”. The first applicant submitted such certificates issued in respect of Suleyman Musayev, Aslanbek Ganayev, Salambek Ganayev and Alvi Ganayev. It appears that they were also issued in respect of his three other killed relatives. Such certificates were issued in respect of all the killed relatives of the second – fifth applicants.

On 10 January 2002 Memorial requested the Chechnya Prosecutor to give an update about the investigation into the Aldy killings.

On 19 June 2002 the Chechnya Prosecutor forwarded the Memorial’s request to the Northern Caucasus Department of the General Prosecutor’s Office and stated that the case-file no. 12011 had been transferred to that office in March 2000.

On 18 July 2002 the Chechnya Prosecutor informed Memorial that the criminal investigation no. no. 12011 “opened on 5 March 2000 in relation to the killings committed in Grozny on 10 January 2000” had been transferred to the Northern Caucasus Department of the General Prosecutor’s Office. All further requests should be addressed to that office.

On 22 August 2002 the General Prosecutor’s Department for the Southern Federal Circuit forwarded Memorial’s request to the Chechnya Republican Prosecutor with a request to inform them about the investigation of the criminal case no. 12011 of “a murder in Grozny on 10 January 2000”.

On 14 January 2003 Memorial requested information about the investigation from the General Prosecutor. No reply was received to that request.

On 27 March 2003 an investigator of the Chechnya Prosecutor’s Office adjourned investigation in the criminal case no. 12011 opened on 5 March 2000 by the Grozny Town Prosecutor’s Office into the murder of more than 50 inhabitants of Novye Aldy. The decision listed the progress of the investigation, which had been adjourned three times and then resumed. It further stated that all possible investigative measures had been carried out, but no culprits established. In view of this the investigation was adjourned.

On 19 November 2003 and on 14 January 2004 Memorial again requested an update about the investigation from the General Prosecutor, at the same time asking for an explanation as to why no answers had been given to their previous requests. The first letter requested the prosecutor to provide a list of the killed, a list of persons who had been granted victim status in the proceedings and questioned as witnesses, to specify whether there has been a decision to adjourn or reopen the investigation and how the access to the case-file could be obtained.

On 8 April 2004 the lawyer representing the victims of the Aldy killings wrote to the Chechnya Prosecutor and asked him to open a criminal investigation into the looting and destruction of property of the Novye Aldy residents on 5 February 2000.

On 17 April 2004 the Chechnya Republican Prosecutor’s Office replied to Memorial that criminal case file no. 12011 was under investigation and that no results could be made public before its conclusion. It further stated that no explanation could be provided for the failures to reply, because persons who had earlier been responsible for the case-file no longer worked in that office.

On unspecified dates the residents of the Novye Aldy (more than 50 persons) signed applications to the President of Russia and the Chairman of the State Duma. They called for an investigation into their relatives’ death and for an identification of the servicemen who had committed the murders.

The applicants submit that they have not been properly questioned by the investigators. They are not aware which prosecutor’s office is responsible for the investigation and were not informed about its progress therefore can not appeal the investigator’s actions.

The Government submit in their memoranda that the investigation was at some point transferred from the Grozny Prosecutor’s Office to the Northern Caucasus Department of the General Prosecutor’s Office and then to the Chechnya Prosecutor’s Office. During the investigation 33 bodies had been exhumed and subjected to a forensic expertise which confirmed burns and gunfire wounds. A number of other investigative steps had been taken, such as an examination of the sites. The relatives of the killed, including the second, third, fourth and the fifth applicants, were granted victim status in the proceedings. The first applicant was questioned as a witness once, but then failed to appear on summons and did not request to be granted victim status. Other family members of his killed relatives were granted victim status. The investigation was adjourned on several occasions due to failure to identify the culprits and then resumed. The latest decisions to resume the investigation were issued by the deputy prosecutor of Chechnya on 4 October 2004 and on 29 December 2004. The General Prosecutor’s Office supervises the investigation in the present case and brings the shortcomings to the attention of the investigators, such as the follow-up of the relatives’ complaints about allegedly unlawful exhumation of the bodies and the issuing of documents concerning the cause of their relatives’ deaths. The progress of the investigation is complicated by the fact that the applicants cannot point to the persons who could be responsible for the unlawful actions.

Despite the Court’s specific requests made on two occasions, the Government did not submit copies of the procedural documents to which they refer and did not specify the dates when most of the investigative actions had taken place. Relying on the information obtained from the General Prosecutor’s Office, the Government state that the investigation is pending and the disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure because the file contains information of a military nature and personal data of the witnesses. At the same time, the Government suggested that a Court delegation could have access to the file at the place of the preliminary investigation with the exception of “the documents [disclosing military information and personal data of the witnesses], and without the right of making copies of the case-file and its transmission to the others”.

B. Documents submitted by the applicants

In the summer of 2004 the applicants submitted numerous documentary evidence in support of their allegations. The most important documents can be summarised as follows:

1. Eye-witness statements

In addition to their own statements of facts, the applicants submitted 13 statements by eye-witnesses of the events of 5 February 2000 and by other relatives of the killed. One witness is not identified by name.

Z. and Ya., the neighbours of the second applicant, stated that Salman and Abdula Magomadov had been killed on 5 February 2000 in the cellar of their own home in the Mazayeva Street. The witnesses, together with the third neighbour, dug out the remains from under the debris in the burnt cellar on the following day, put it into a large pot and buried in the courtyard of the same house. There was hardly more than a few bones.

Aset Ch., a resident of the Novye Aldy and a nurse by profession, submitted a detailed account of the events of 5 February 2000. She submitted that the men who had conducted the operation on that day were calling themselves “police”, that they were wearing military uniforms, used radio for communication between themsleves and drove around in military Ural trucks and APCs with obscured number plates.

Other witnesses describe the perpetrators of the killings as 35-40 years old, wearing camouflage uniforms without insignia. They confirm the applicants’ statements about the circumstances of killing of their relatives’ and other persons. Some witnesses submit that the servicemen were drunk.

2. NGO reports

In June 2000 the Human Rights Watch issued a 45-page long report entitled “February 5: A Day of Slaughter in Novye Aldy”, which puts the blame for extra-judicial executions on the Russian police special units (OMON) and military. The document reports the deaths of the applicants’ relatives, based on the interviews with the applicants and their neighbours. It contains a detailed description of the events, including a plan of the district, a list of 60 confirmed names of the killed and 19 “unconfirmed” killings.

In 2000 the Human Rights Centre Memorial issued a 70-page report entitled “Mopping Up. Settlement of Novye Aldy, 5 February 2000 – Deliberate Crimes Against Civilians” («Зачистка». Поселок Новые Алды, 5 февраля 2000 – преднамеренные преступления против мирного населения), which lists the applicants’ relatives and neighbours among 56 civilians murdered on that day. The report contains numerous statements of the witnesses and victims, photographs of dead and a plan of the neighbourhood with indications of the places where people had been killed.

On 9 February 2001 the Human Rights Watch issued a Memorandum on the state of the national investigation into human rights and international humanitarian law violations in Chechnya. The report stated that the investigation into the mass murder of civilians in Novye Aldy had been “pushed around” between three prosecutors’ offices and then adjourned. The exhumations and forensic reports had been carried out on more than 30 bodies. The officers and servicemen of the detachments of the military and police, allegedly implicated in the murders, had not been questioned.

3. Press reports

On 22 February 2000 the New York Times reported the events in Novye Aldy in the article “Chechens Tell of Murderous Rampage by Russians”. The publication referred to the interviews with the IDPs in Ingushetia.

On 23 February 2000 The Guardian published an article “82 Feared Dead in Chechen Massacre” which was based on the information from the human rights groups and survivors. The newspaper mentioned that the access to Grozny was severely restricted and that there was no way of independently verifying the testimony of the witnesses interviewed in the IDP camps in Ingushetia.

On 22 March 2000 the Novye Izvestia ran an article “Chechen Civilians Shot by OMON from Dagestan?” The article referred to the information from the Chief Military Prosecutor’s Office, according to which the servicemen of the Ministry of Defence had not been implicated in the killings of 67 civilians in Aldy on 5 February 2000. The newspaper stated that more than a hundred armed men who had killed the civilians, looted and burned the property reportedly belonged to a detachment of the Ministry of the Interior, and that there were reasons to believe that they belonged to the OMON units from Dagestan.

On 27 March 2000 the Novaya Gazeta published an article “Freedom or Death. The Aldy Nightmare”. It reported the deaths of the applicants’ relatives and contained interviews with the survivors and the relatives of the killed.

On 2 June 2000 the Washington Post published an article “Chechnya’s Bloodiest Massacre” which contained the fourth applicant’s story and interviews with other residents of the Novye Aldy.

On 28 June 2000 the Chechnya newspaper Svet Rodiny published a letter received in response to the publications about the murders in Aldy from the Chief of Staff of the Ministry of Defence, which stated that the Chief Military Prosecutor’s Office was conducting a verification of the facts contained in the article and the possible involvement of the military servicemen in the events.

In February 2004 the Novaya Gazeta reported lack of progress in the investigation of the Aldy massacre in an article “Receipt for Murders”. The article contained an interview with the fourth applicant and stated that the victims of the events of 5 February 2000 had received no assistance from the authorities either in the form of an effective investigation of the events and persecution of the perpetrators, or any compensation for the lost and looted property.

The applicants also submitted an extract from a book by Andrew Meier “Black Earth. A Journey through Russia After the Fall”, NY, 2003. Chapter 9 contains an account of the author’s visit to the Novye Aldy settlement in the aftermath of the massacre and his interviews with the survivors and the relatives of the killed.

4. Video tape and transcript

The applicants submitted a videotape made by a Russian human rights activist Viktor Popkov in Novye Aldy on 9 February 2000. They also submitted a transcript of the videotape and a translation of the transcript into English. The footage depicts bodies of the victims in the houses and in the local cemetery. The bodies have firearm wounds, many of them to the heads. The inhabitants of the settlement speak of the events of 5 February 2000, stressing that the servicemen who had committed the crimes had behaved as if they had an order to kill, because they did not ask the residents for identity documents and did not spare anyone, including old men and women. They also speak of looted and burned houses and of extortion of money and valuables, including gold teeth. Some people say that the soldiers were drunk and describe the mocking to which they had been subjected.

C. Relevant domestic law

Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the Russian Soviet Federalist Socialist Republic. From 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation (CCP).

Article 161 of the new CCP establishes the rule of impermissibility of disclosure of the data of the preliminary investigation. Under part 3 of the said Article, the information from the investigation file may be divulged upon permission of a prosecutor or investigator and only so far as it does not infringe the rights and lawful interests of the participants of the criminal proceedings and does not prejudice the investigation. Divulging information about private life of the participants of the criminal proceedings without their permission is prohibited.

COMPLAINTS

1.  The applicants complain under Article 2 of the Convention that their relatives’ right to life has been violated. They also complain under the same Article that no effective investigation has been carried out by the authorities into the killings.

2. The first applicant complains that he was subjected to treatment falling within the scope of Article 3 of the Convention as a result of the intense feelings of fear, anguish and emotional distress suffered in connection with the killing of his relatives and neighbours, and being subjected to death threats. He further complains that the State has failed to comply with its obligation to investigate his arguable claims of ill-treatment.

3.  Referring to Article 13 of the Convention, the applicants complain that they had no effective remedies in respect of the alleged violations.

THE LAW

The applicants complain that their relatives’ right to life, guaranteed by Articles 2 of the Convention, was violated. They also complain that they had no effective domestic remedies in respect of the above violations, contrary to Article 13. The first applicant also submits that the events of 5 February 2000 constituted treatment prohibited by Article 3 of the Convention and that no investigation has occurred. These Articles provide:

Article 2

“1.  Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2.  Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a)  in defence of any person from unlawful violence;

(b)  in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c)  in action lawfully taken for the purpose of quelling a riot or insurrection.”

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

1. Exhaustion of domestic remedies

The Government request the Court to declare the applications inadmissible as the applicants have failed to exhaust the domestic remedies available to them. They submit that the investigation into the deaths and into the destruction of property is continuing, in accordance with the domestic legislation. The applicants did not apply to a court with a complaint against the actions of the investigating authorities. The Government also refer to the Constitution and other legal acts which permit to appeal to the courts the actions of the administrative bodies which infringe upon the citizens’ rights.

The applicants contest this objection. They submit that they sought criminal prosecution through prosecutors’ offices, but that venue proved ineffective. They submit that the investigation was not effective, in particular in that it did not take timely steps to collect the necessary evidence, failed to inform them about its progress and did not verify the involvement of federal servicemen in the murders. As to the civil remedies, the applicants submit that an application to a district court with a civil claim would have no chances of success in the absence of any conclusions from the criminal investigation and the unknown identity of the perpetrators. They also claim that in the absence of an effective investigation a civil claim would not be an effective remedy as regards deaths of their family members because it is unable to establish the perpetrators and ensure their punishment. Finally, the applicants submit that in 2000 the law-enforcement bodies were not functioning properly in Chechnya.

The Court considers that in the particular circumstances of the present case it does not have sufficient information to enable it to make a ruling on the question of exhaustion of domestic remedies. Furthermore, this question is so closely linked to the merits of the case that it is inappropriate to determine it at the present stage of the proceedings.

The Court therefore decides to join this objection to the merits.

2. As to the merits of the applicants’ complaints

a. The Government

The Government do not dispute the fact that the applicants’ relatives died. They argue that the investigation “did not obtain data that the killings of [the first applicant’s relatives] had occurred with the knowledge or by order of the representatives of the federal power structures of the Russian Federation”. In respect of the relatives of the other applicants, the Government state that their deaths had occurred as a result of violent actions of unidentified persons. Until the investigation has established the culprits, it can not be said that their right to life was infringed by the actions of the military servicemen or other State agents.

As to the first applicant’s complaint under Article 3, the Government disagree that he had been subjected to treatment proscribed under that Article.

Under Article 13, the Government state that the applicants’ had access to effective domestic remedies and could have appealed the results of the investigation to a court. They were granted victim status and had every possibility to participate effectively in the proceedings.

b. The applicants

The applicants submit that there is overwhelming evidence to conclude that their relatives were intentionally deprived of their lives in circumstances that violate Article 2 of the Convention. Basing themselves on the Government’s admission that on 5 February 2000 a special operation had been carried out in the neighbourhood by the federal forces, they ask the Court to conclude that the “unidentified men in military uniforms armed with automatic weapons” must have been the same members of the federal forces who had conducted the operation. They refer to the eye-witness accounts, to the press and NGO reports, to the video tape filmed on 9 February 2000, to the official documents which all point towards the servicemen of the federal forces as the perpetrators of the killings. They argue that the Government do not suggest any other version of the events. They argue that the failure to identify the servicemen responsible lies with the deficient investigation and does not exempt the State from responsibility under the substantive limb of Article 2 of the Convention.

The applicants allege that the authorities failed to conduct an effective investigation into the circumstances of their relatives’ deaths, in violation of the procedural obligations under Article 2. They argue that the investigation fell short of the standards of the European Convention and of the national legislation. They point to the passage of considerable time – more than five years – without the investigation into such a grave crime producing any known results. They refer to the Government memoranda that admit that the investigation was criticised by the supervising prosecutors. The authorities systematically failed to inform the applicants of the proceedings and the applicants have had no information about important procedural steps. They argue that the Government’s failure to submit any copies of the documents from the investigation file seriously hampered their ability to make detailed submissions about the alleged violation and that the Court can draw inferences as to the well-foundedness of their allegations.

The first applicant submits, in addition, that he had been subjected to treatment contrary to Article 3 and that no investigation into this claim has been conducted.

The applicants submit that they had no recourse to effective remedies against the said violations, contrary to Article 13.

The Court considers, in the light of the parties’ submissions, that the case raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. Consequently, the Court concludes that the application cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Decides to join the applications;

Joins to the merits the Government’s objection as to the exhaustion of domestic remedies;

Declares the applications admissible, without prejudging the merits of the case.

Søren Nielsen Christos Rozakis 
 Registrar President

MUSAYEV AND OTHERS v. RUSSIA DECISION


MUSAYEV AND OTHERS v. RUSSIA DECISION