CEDH · CASELAW;CLIN;ENG — 6 juin 2013

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Russia - 38450/05 Judgment 6.6.2013 [Section I] Article 8 Article 8-1 Respect for family life Respect for private life Statutory ban on returning bodies of terrorists for burial: violation   Article 3 Inhuman treatment Conditions of storage of the bodies of the applicants' deceased relatives: no violation   Facts – Early in the morning of 13   October 2005 law-enforcement agencies in the town of Nalchik were attacked by armed insurgents. The fighting continued into the following day leaving more than 100   dead, the majority from the ranks of the assailants. The applicants are relatives of some of the deceased insurgents. The applicants, who took part in their identification, alleged that the bodies were kept in appalling conditions (piled up, naked and decomposing for want of adequate refrigeration). Under legislation introduced in Russia following the terrorist attack on the Nord-Ost Theatre in Moscow in October 2002 the bodies of terrorists were not handed over to relatives and the place of burial was not disclosed. In April 2006, having established the involvement of the insurgents in the attack, the investigating authority discontinued the criminal proceedings owing to the deaths of the suspects in the attack. In June 2006, pursuant to the decision not to return the bodies of the deceased to their families, 95   corpses of presumed terrorists were cremated. Some of the applicants contested the legislation governing the interment of terrorists. In June 2007 the Constitutional Court ruled that the measure in question was justified as the burial of terrorists could serve as propaganda for terrorist ideas and also cause offence to relatives of the victims, creating the preconditions for heightened interethnic and religious tension. It upheld the impugned legislation as being in conformity with the Constitution but at the same time interpreted it as requiring that the authorities not bury bodies unless a court had confirmed the competent authority’s decision. Law – Article 3: The conditions in which the applicants’ relatives’ bodies were stored may have caused the applicants suffering, as the Government had admitted that the local facilities were insufficient to contain all the corpses for the first four days after the attack and that even thereafter they had had to be piled up on top of each another for storage in refrigerator wagons. However, those shortcomings had been the result of logistical difficulties caused by the events of October 2005 and by the high number of casualties. There had been no purposeful intention to subject the applicants to inhuman treatment or to cause them psychological suffering. In other words, the emotional distress of the applicants had been comparable to that of any family member of a deceased person in a comparable situation. Conclusion : no violation (unanimously). Article 8: In Russia the relatives of deceased people willing to organise interment generally enjoyed a statutory guarantee of having the bodies returned promptly to them for burial after the cause of the death had been established. The authorities’ refusal to return the bodies in the instant case had thus constituted an exception from the general rule. Moreover, it had clearly deprived the applicants of an opportunity to organise and take part in their relatives’ burial or to know the location of the gravesite for potential visits. The decisions not to return the bodies to their families had therefore constituted interference with the applicants’ private and family life (with the exception of one applicant, who was not officially married to one of the victims but had lived with him for several months, in whose case the decision constituted interference with her private life only). The refusal of the authorities to return the bodies was based on the Suppression of Terrorism Act and the 2003 Decree governing the burial of terrorists and thus had a legal basis in Russian law. That decision had legitimate aims, namely preventing disorder during the burials by supporters or opponents of the insurgents, protecting the feelings of the relatives of the victims of terrorism and minimising the psychological impact on the population. The 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, constituted 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 had permanently cut any link between the applicants and their deceased relatives’ remains. Moreover, when deciding not to return the bodies, the authorities had not used a case-by-case approach or taken into account the individual circumstances of each of the deceased and those of their family members, as the applicable law treated all these questions as irrelevant. On the contrary, the decisions had been purely automatic and ignored the authorities’ duty to ensure that any interference with the right to respect for private and family life was justified and proportionate in the individual circumstances of each case. In the absence of such an individualised approach, the refusal mainly appeared to have had a punitive effect on the applicants by shifting the burden of blame for the terrorist activities from the deceased to them. The respondent State had thus overstepped any acceptable margin of appreciation in that regard. Conclusion : violation (five votes to two). Article 13 in conjunction with Article   8: The Court noted the absence of any effective judicial supervision of the authorities’ decisions not to return the bodies to their families. Although the 2007 ruling of the Constitutional Court had improved the applicants’ situation, the Russian courts 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 owing to the authorities’ refusal to provide them with a copy of the decisions and the limited competence of the courts to review them. Conclusion : violation (five votes to two). The Court unanimously found no violation of Article   14 in conjunction with Article   8 and no violation of Article 38 §   1. Article 41: Finding of a violation constituted sufficient just satisfaction for the non-pecuniary damage sustained by the applicants. (See also Maskhadova and Others v.   Russia , 18071/05 , 6   June 2013)   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes