Communicated on 14 December 2016

THIRD SECTION

Application no. 12981/15 Leonid Isufovich TASHUYEV against Russia lodged on 29 January 2015

STATEMENT OF FACTS

The applicant, Mr Leonid Isufovich Tashuyev , is a Russian national, who was born in 1953 and lives in the town of Baksan of the Baksanskiy district of the Kabardino -Balkar Republic. The applicant is the father of Mr Kazbek Leonidovich Tashuyev .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The national authorities suspected the applicant ’ s son, Mr Kazbek Leonidovich Tashuyev , of involvement of a terrorist attack in Nalchik on 1 May 2010 and placed him on the wanted list. The Main Investigative Department of the Investigative Committee in the North-Caucasus Federal District opened criminal case no. 70/20-10 into the events of 1 May 2010.

1. Events of 29 April 2011

On 29 April 2011 the law enforcement officers conducted a special operation in the village of Progress in the Stavropol Region. According to the authorities, Mr Tashuyev was located in the village of Progress with nine other armed individuals and offered armed resistance to the officers. As a result of the operation, Mr Tashuyev and nine other individuals were killed. According to the expert examination, Mr Tashuyev ’ s death was caused by an explosion. On 29 April 2011 the authorities opened criminal case no. 2917 on account of a traffic and storage of weapons.

2. The proceedings concerning the refusal to return the body of Mr Tashuyev for burial

On 6 July 2011 Mr Tashuyev ’ s wife complained to the Nalchik City Court about the investigator ’ s refusal to return the body. On 13 July 2011 the court declared the investigator ’ s refusal to return the body unlawful and ordered the authorities to redress the violation. On an unspecified date the Supreme Court of Kabardino-Balkaria quashed the decision of 13 July 2011.

On 17 April 2012 the applicant complained to the court about the refusal to return the body. On 19 April 2012 the Nalchik City Court refused to consider the applicant ’ s complaint on the ground that the court had already considered the same arguments in the decision of 13 July 2011 and in the decision of the Supreme Court of Kabardino-Balkaria.

It follows from the case file that on 06 June 2012 criminal cases no. 2917 was merged with case no. 70/20-10.

On 27 November 2012 the Nalchik City Court dismissed the applicant ’ s complaint about the withholding of the body on the ground that the investigation into criminal case no. 70/20-10 was ongoing.

On 2 December 2012 the investigative authorities terminated the criminal proceedings. On 29 December 2012 the decision was overruled as premature, since the authorities had not decided what to do with Mr Tashuyev ’ s body.

The applicant complained to the Nalchik City Court about the investigator ’ s unclear position regarding the body. On 27 February 2013 the court granted the applicant ’ s complaint and found the continued withholding of the body unlawful.

On 26 April 2013 the applicant complained to the Nalchik City Court about non-enforcement of the court decision of 27 February 2013. It follows that on 23 May 2013 the Deputy Chairman of the Investigative Committee of Russia transferred criminal case no. 70/20-10 for further investigation. On this ground on 4 June 2013 the Nalchik City Court dismissed the applicant ’ s complaint about the non-enforcement. On 23 July 2013 the Criminal Chamber of the Supreme Court of Kabardino-Balkaria quashed the decision of 4 June 2013 since “the court decisions were subject to strict enforcement”.

In response to the applicant ’ s request of 3 October 2013 to return the body, the Investigative Committee in the North-Caucasus Federal District informed the applicant that investigation period was extended until 23 December 2013 and that “during the court proceedings the authorities were not aware of information concerning Mr Tashuyev ’ s preparation of the terrorist attack in the Elbrusskiy District in Kabardino-Balkaria on 9 May 2011”.

On 27 November 2013 the Essentukskiy City Court rejected the applicant ’ s complaint about the Committee ’ s refusal. Upon the applicant ’ s appeal the Stavropol Regional Court quashed the decision on 15 May 2014 and sent the complaint for a new consideration.

On 3 June 2014 the Essentukskiy City Court dismissed the applicant ’ s complaint relying on Article 14.1 of the Law “On internment and burial” and paragraph 5 of the Government ’ s Decree of 20 March 2003 no. 164. It follows from the decision that on 15 May 2013 the Elbrusskiy District Investigative Department opened criminal case no. 76/17-13 into the crimes in which Mr Tashuyev was allegedly involved. On 23 May 2013 case no. 76/17-13 was merged with case no. 70/20-10. According to the court, the investigation was ongoing and “it was necessary to conduct numerous investigative actions in order to establish whether Mr Tashuyev was guilty or not”. The decision on Mr Tashuyev ’ s burial therefore would be taken upon the termination of the criminal investigation.

On 31 July 2014 the Stavropol Regional Court upheld the decision of 3 June 2014 on appeal.

B. Relevant domestic law

1. Statutory definitions of terrorism and terrorist activity

The Federal Law “On counter-terrorism” no. 35-FZ was enacted on 6 March 2006. Section 3 of the Law defines terrorism as an ideology of violence and exertion of pressure on the decision-making process by the public authorities, local authorities or international organisations , involving intimidation of the population and (or) other forms of unlawful violent acts.

A terrorist activity within the meaning of the said law encompasses:

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

2) incitement to a terrorist act;

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

4) recruitment , arming, training and use of terrorists;

5) informational or other collaboration in planning, preparation or commission of a terrorist attack;

6) propaganda of the ideology of terrorism, dissemination of material and information calling for the commission of a terrorist activity or the justification of the necessity of such activity.

Section 3 defines a terrorist act as commission of explosion, arson or other acts intimidating population or endangering a human life, causing significant loss of property or leading to other severe consequences, aimed at destabilisation of the operation of public authorities or international organizations or exertion of pressure on the decision-making process, as well as the uttering of a threat to commit the aforesaid acts for the same purposes.

2. Legislation on internment of (presumed) terrorists

Section 14.1 of the Federal Law “On interment and burial” (Federal Law no. 170- FZ) states that:

“... interment of persons against whom a criminal investigation on suspicion of terrorist activities has been closed because of their death during the suppression of the said terrorist act, shall take place under a 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 disclosed.”

The Russian Government adopted on 20 March 2003 Decree no. 164 setting up the procedure for internment of persons deceased during the suppression of terrorist acts carried out by them. Paragraph 5 states that:

“To execute the burial an official carrying out a preliminary investigation sends necessary documents, including a copy of the decision to close the criminal case, to the relevant Agency and a death certificate to the relevant residence registry office ...”

COMPLAINTS

The applicant complains under Article 8 of the Convention that the State authorities unjustifiably interfered with his right to family by refusing to return the body of his son for burial.

Under Article 13 of the Convention the applicant complains that there is no effective remedy in respect of the aforementioned complaint.

QUESTIONS

1. Do the Russian authorities retain possession of the body of the applicant ’ s son, Mr Kazbek Leonidovich Tashuyev ?

2. Did the refusal constitute an interference with her rights protected under Articles 8 of the Convention? If so, did it pursue a legitimate aim and was it lawful and proportionate?

3. Did the decisions of the authorities not to return the body of the applicant ’ s son describe him as a terrorist who had died as a result of suppression of terrorist activities? The authorities are requested to furnish copies of the relevant decisions in this respect.

4. What was the outcome of the criminal proceedings in case no. 70/20-10 in relation to the applicant ’ s son? The authorities are requested to furnish copies of the relevant decisions in this respect.

5. The Government are requested to comment on the refusal to enforce the decision of the Nalchik City Court of 23 February 2013.

6. Did the applicant have an effective remedy for his grievances under Article 8 of the Convention, as required by Article 13 of the Convention?