A Shameful Decision by ECHR on Aslan Maskhadov
The European Court of Human Rights has notified the following shameful judgment decision related the assasination of IIIrd President of Chechen Republic of Ichkeria, Aslan Maskhadov.
Here is the press release:
EUROPEAN COURT OF HUMAN RIGHTS
ECHR 170 (2013)
Russia was not responsible for the death of Chechen President but it should not have automatically refused to return his body to their families
In today’s Chamber judgments in the cases of Maskhadova and Others v. Russia (application no. 18071/05) which is not final, the European Court of Human Rights held:
by, five votes to two, that there had been a violation of Article 8 (right to respect for private and family life) and Article 13 (right to an effective remedy) taken in conjunction with Article 8 of the European Convention on Human Rights and, unanimously, that there had been no violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 8 in the case as concerned the authorities’ refusal to return to the applicants the body of their deceased relative;
unanimously, there had been no violation of Article 2 (right to life and investigation) as concerned the death of Aslan Maskhadov, the Chechen President, or the investigation into his death;
The case essentially concerned the Russian authorities’ refusal to return the body of the Chechen President to his family.
The Court held in particular that the authorities had not been the direct cause of the death of the Chechen President and that the investigation into the circumstances of his death had been adequate. However, it found that the automatic refusal to return the body to his family had not struck a fair balance between, on the one hand, the legitimate aim of preventing any disturbance which could have arisen during the burials as well as protecting the feelings of the relatives of the victims of terrorism and, on the other hand, the applicants’ right to pay their last respects at a funeral or at a grave. The Court fully acknowledged the challenges faced by a State from terrorism but found that the automatic refusal to return the bodies had contravened the authorities’ duty to take into account the individual circumstances of each of the deceased and those of their family members. In the absence of such an individualised approach, the measure had appeared to switch the blame from the deceased for their terrorist activities on to the applicants.
Maskhadova and others v. Russia
The applicants in the first case are Kusama Maskhadova and her two children, Fatima Maskhadova and Anzor Maskhadov. They are Russian nationals who were born in 1950, 1983 and 1975, respectively, and live in Azerbaijan, Norway and Sweden. The case concerned their husband and father, Aslan Maskhadov, born in 1951, who was one of the military and political leaders of the Chechen separatist movement during and after the armed conflict of 1994-96. He was accused of a number of terrorist offences, and notably of masterminding the Beslan school terrorist attack in September 2004, which left 334 people – including 86 children – dead. He lived in hiding until 8 March 2005 when his body was found in an underground shelter by the Russian security forces during a special operation.
Aslan Maskhadov’s death was subsequently investigated by the authorities in the context of the criminal case against him. Although further evidence was found confirming his active involvement in masterminding the Belsan school terrorist attack, the criminal case was closed owing to his death. The authorities also decided not to bring criminal proceedings into the death. Relying on various items of evidence obtained from the scene of the incident, including interviews with witnesses and a number of forensic examinations, it was found that Aslan Maskhadov had died from gunshot wounds to the head fired accidentally by an armed insurgent, who had been in hiding with him, when the security forces had blown up the underground shelter’s entrance.
In a decision of 25 March 2005, the authorities decided to bury his corpse, delegating the task to the Government of the Chechen Republic. In April 2005, the authorities rejected the applicants’ request for the body to be returned. Refering to a 2003 Decree governing the burial of terrorists (the 2003 Decree) and the Suppression of Terrorism Act, they notified the applicants that the bodies of terrorists who had died as a result of their terrorist actions were not to be returned to their families and that the location of burial could not be disclosed.
Complaints, procedure and composition of the Court
The applicants relied in particular on Articles 2 (right to life) and alleged that Aslan Maskhadov had been trapped, detained and killed by the Russian security forces and not found dead as alleged. They also complained that the investigation into his death had been inadequate.
The applicants also complained about the authorities’ refusal to return to them their relative’s body under terrorism legislation and alleged that that legislation had been discriminatory as it was aimed exclusively at followers of the Islamic faith and the Chechen ethnic community. They relied in particular on Articles 8 (right to respect for private and family life), 13 (right to an effective remedy) and 14 (prohibition of discrimination).
The judgments were given by a Chamber of seven judges, composed as follows:
Isabelle Berro-Lefèvre (Monaco), President,
Elisabeth Steiner (Austria),
Khanlar Hajiyev (Azerbaijan),
Linos-Alexandre Sicilianos (Greece),
Erik Møse (Norway),
Ksenija Turković (Croatia),
Dmitry Dedov (Russia),
and also André Wampach, Deputy Section Registrar.
Decision of the Court
The Court considered that the investigation, launched immediately after the discovery of the body, had lasted only about four months and had been concluded promptly with a decision reaching specific conclusions on the factual circumstances of Aslan Maskhadov’s death. It had also been carried out by the Prosecutor General’s Office, an authority institutionally independent from the officials in charge of the operation of 8 March 2005. Moreover, the cause of Aslan Maskhadov’s death had been established by a forensic expert and the applicants had not disputed his conclusion. Finally, the evidence collected by the investigating authorities, including repeated examinations and interviews of witnesses, had been generally consistent with the version of the facts as submitted by the Government. Hence, the Court concluded that the authorities had acted in good faith and that the investigation into the death of Aslan Maskhadov had complied with the requirements of the procedural aspect of Article 2.
As regards the alleged responsibility of Russia for the death of Aslan Maskhadov, the Court noted that the authorities could not have known in advance that he and other armed insurgents had been hiding in the underground shelter before blowing up its entrance, resulting in his accidental shooting. Accordingly, the applicants’ allegations of conspiracy or collusion involving the authorities and the witnesses remained speculative, indeed implausible. There was therefore no proof that the authorities’ actions had been the direct cause of the death of Aslan Maskhadov and the Court concluded that there had been no violation of the substantive aspect of Article 2.
The Court found that there was no cause for a separate examination of the same facts from the standpoint of Article 3.
Article 8 (refusal to return body)
The Court noted that in Russia the relatives of deceased people willing to organise interment generally enjoy a statutory guarantee of having the body returned promptly to them for burial after the cause of the death has been established. Therefore,the authorities’ refusal to return the body had constituted an exception from the general rule. Moreover, it had clearly deprived the applicants of an opportunity to organise and take part in the burial of their relatives as well as to know the location of the gravesite for potential visits. Therefore, the decisions not to return the body to his families had constituted an interference with the applicants’ private and family life.
The Court also considered that the refusal of the authorities to return the body, based on the Suppression of Terrorism Act and the 2003 Decree, had had a legal basis in Russian law. That decision had a legitimate aim, namely the prevention of disorder during the burials by supporters or opponents of Aslan Maskhadov or the insurgents and protecting the feelings of the relatives of the victims of terrorism as well as minimising the psychological impact on the population.
The Court reiterated that it was aware that States faced particular challenges from terrorism and terrorist violence. However, the Court found it difficult to agree that the goals referred to by the Government, albeit legitimate, had been a viable justification for denying the applicants any participation in the funeral ceremonies or at least some kind of opportunity for paying their last respects. Indeed, the complete ban on disclosing the location of the graves permanently cut any link between the applicants and their deceased relatives’ remains.
Moreover, when deciding not to return the bodies, the authorities had neither used a case-by-case approach nor taken into account the individual circumstances of each of the deceased and those of their family members. On the contrary, those decisions had been purely automatic, and ignored the authorities’ duty under Article 8 to ensure that any interference with the right to respect for private and family life be justified and proportionate in the individual circumstances of each case. In the absence of such an individualised approach, the refusal had mainly appeared to have a punitive effect on the applicants by shifting the burden of blame from the deceased for their terrorist activities on to the applicants. The Court therefore concluded that the refusal to return the body to his family had amounted to a violation of the applicants’ rights to respect for their private and family life.
Article 9 (freedom of religion)
The Court found that there was no cause for a separate examination of the same facts from the standpoint of Article 9.
Article 13 taken in conjunction with Article 8 (effective remedy)
The Court noted the absence of effective judicial supervision concerning the decision by the authorities not to return the body to his family. Although the 2007 Ruling adopted by the Constitutional Court had improved the situation of the applicants, the Russian courts had remained competent to review only the formal lawfulness of the measures and not the need for the measure as such. Therefore, the legislation had not provided the applicants with sufficient procedural safeguards against arbitrariness. Indeed, they had not enjoyed an effective possibility of appealing the decisions owing to the authorities’ refusal to provide them with a copy of those decisions and the limited competence of the courts in reviewing such decisions. Hence, the Court concluded that there had been a violation of Article 13, taken together with Article 8.
Article 14 in conjunction with Article 8 (discrimination)
The Court found no indication which would have enabled it to conclude that the legislation had been directed exclusively against followers of the Islamic faith or against members of the Chechen community. Hence, the Court concluded that there had been no violation of Article 14 read in conjunction with Article 8.
Article 41 (just satisfaction)
The Court held unanimously that the finding of a violation constituted sufficient just satisfaction for the non-pecuniary damage sustained by the applicants. It further held that Russia was to pay the applicants 18,000 euros (EUR).
Thejudges Hajiyev and Dedov expressed a joint dissenting opinion. Their opinion is annexed to the judgments.