FIRST SECTION CASE of TAGAYEVA and OTHERS V. RUSSIA

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FIRST SECTION CASE of TAGAYEVA and OTHERS V. RUSSIA FIRST SECTION CASE OF TAGAYEVA AND OTHERS v. RUSSIA (Application no. 26562/07 and 6 other applications – see list appended) JUDGMENT STRASBOURG 13 April 2017 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. TAGAYEVA AND OTHERS v. RUSSIA JUDGMENT 1 Table of Contents PROCEDURE .......................................................................................................... 4 THE FACTS ............................................................................................................. 5 I. THE CIRCUMSTANCES OF THE CASE ...................................................... 5 A. General information ....................................................................................... 5 B. The events of 1 to 4 September 2004 ............................................................ 6 1. Situation prior to the hostage-taking on 1 September 2004 ................................. 6 2. Hostage-taking ..................................................................................................... 7 3. Events of 1 to 2 September 2004 ......................................................................... 9 4. Storming and rescue operation .......................................................................... 14 5. Events of 4 September 2004, identification of bodies and burials .................... 17 6. Assuming responsibility for the terrorist act ...................................................... 18 C. Criminal investigations ................................................................................ 19 1. Criminal investigation no. 20/849 ..................................................................... 19 2. Criminal investigation in respect of Mr Nurpashi Kulayev ............................... 49 3. Criminal proceedings against police officers ..................................................... 70 D. Civil proceedings brought by the victims .................................................... 72 1. First group of claimants ..................................................................................... 72 2. Second group of claimants ................................................................................. 73 E. Parliamentary inquiries ................................................................................ 73 1. Report prepared by the North Ossetian Parliament ........................................... 73 2. The Federal Assembly report ............................................................................. 80 F. Other relevant developments........................................................................ 86 1. Humanitarian relief ............................................................................................ 86 2. Other important public and media reactions ...................................................... 87 3. Victims’ organisations ....................................................................................... 88 G. Expert reports submitted by the applicants after the admissibility decision ....................................................................................................... 89 1. Expert report on counter-terrorism .................................................................... 89 2. Expert report on medical (forensic) aspects of the operation ............................ 94 II. RELEVANT DOMESTIC LAW AND PRACTICE .................................... 96 A. Regulation of anti-terrorist operations and the use of force ........................ 96 1. Suppression of Terrorism Act and Criminal Code ............................................ 96 2. Field Manuals .................................................................................................... 98 B. Amnesty Act ................................................................................................. 99 III. RELEVANT INTERNATIONAL LAW AND PRACTICE ...................... 99 A. Use of force by law-enforcement officials ................................................... 99 B. International humanitarian law .................................................................. 101 2 TAGAYEVA AND OTHERS v. RUSSIA JUDGMENT THE LAW ............................................................................................................ 103 I. PRELIMINARY ISSUES ............................................................................... 103 II. ALLEGED VIOLATIONS OF ARTICLE 2 OF THE CONVENTION (ALL APPLICANTS) ....................................................... 104 A. Article 2 - positive obligation to prevent threat to life .............................. 104 1. The parties’ submissions .................................................................................. 104 2. The Court’s assessment ................................................................................... 106 B. Procedural obligation under Article 2 of the Convention .......................... 110 1. The parties’ submissions .................................................................................. 110 2. The Court’s assessment ................................................................................... 111 III. ALLEGED VIOLATIONS OF ARTICLE 2 OF THE CONVENTION (APPLICATIONS Nos. 26562/07, 49380/08, 21294/11, 37096/11 AND 14755/08) .............................................................. 124 A. Planning and control of the operation ....................................................... 124 1. The parties’ submissions .................................................................................. 124 2. The Court’s assessment ................................................................................... 129 B. Use of lethal force ...................................................................................... 133 1. The parties’ submissions .................................................................................. 133 2. The Court’s assessment ................................................................................... 136 IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION (ALL APPLICANTS) ....................................................... 144 A. The parties’ submissions ........................................................................... 145 1. The applicants .................................................................................................. 145 2. The Government .............................................................................................. 145 B. The Court’s assessment ............................................................................. 146 1. General principles established in the Court’s case-law ................................... 146 2. Application of the above principles in the present case ................................... 148 V. APPLICATION OF ARTICLES 41 AND 46 OF THE CONVENTION ............................................................................................. 151 A. Non-monetary measures ............................................................................ 151 B. Damage ...................................................................................................... 154 1. The first group of applicants ............................................................................ 154 2. The second group of applicants ....................................................................... 154 3. The Government .............................................................................................. 154 4. The Court’s assessment ................................................................................... 155 C. Costs and expenses .................................................................................... 155 1. The first group of applicants ............................................................................ 155 2. The second group of applicants ....................................................................... 156 3. The Government .............................................................................................. 157 4. The Court ......................................................................................................... 157 TAGAYEVA AND OTHERS v. RUSSIA JUDGMENT 3 D. Default interest .......................................................................................... 158 4 TAGAYEVA AND OTHERS v. RUSSIA JUDGMENT In the case of Tagayeva and Others v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Linos-Alexandre Sicilianos, President Mirjana Lazarova Trajkovska, Khanlar Hajiyev, Julia Laffranque, Paulo Pinto de Albuquerque, Erik Møse, Dmitry Dedov, judges, and Abel Campos, Section Registrar, Having deliberated in private on 14 October 2014, 9 January 2017 and on 15 March 2017, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case originated in seven applications (see Appendix for details) lodged between 25 June 2007 and 28 May 2011 against the Russian Federation with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by 447 Russian nationals. One group of applicants (“the first group of applicants”, applications nos. 26562/07, 49380/08, 21294/11 and 37096/11) were represented by Mr Kirill Koroteyev, a lawyer of EHRAC/Memorial Human Rights Centre, an NGO with offices in Moscow and London, assisted by
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