PARTLY DISSENTING OPINION OF JUDGE KOVLER

(Translation)

While sharing my colleagues ' conclusions with regard to the applicants ' complaints under Articles 2 and 3 of the Convention, Articles which concern absolute rights and are not open to any restriction or derogation, I regret that I cannot endorse their findings with regard to the Government ' s preliminary objection on the exhaustion of the available domestic remedies and to Article 13 of the Convention.

Rather than dismissing that preliminary objection (although I understand the arguments, which draw on a rich strand of the Court ' s case-law), I would prefer to accept it, in order subsequently to demonstrate more convincingly the shortcomings in the domestic proceedings (procedural aspects of Articles 2 and 3). I see no contradiction in such an approach.

In contrast to the other two cases ( Isayeva, Yusupova, Bazayeva v. Russia and Zara Isayeva v. Russia ) , where the investigation had been closed and victim and civil party status had been withdrawn from the applicants, this case refl ects a different legal situation, firstly because victim status was granted to Mr Khashiyev at the initial stage of the investigation ( May 2000) , as well as to Ms Akayeva – albeit with considerable delay ( March 2003) – and has never been withdrawn from the two applicants. I t follows that the applicants had and still have the possibilit y of asserting their procedural rights, and in particular of requesting that the criminal investigation be carried out in a more diligent and effective manner : under A rticles 208 and 209 of the Code of Criminal Procedure of the RSFSR, as worded at the material time, or especially under A rticle 125 of the Code of Criminal Procedure of the Russian Federation, which entered into force on 1 July 2002, any decisions and actions ( or failures to act ) by investigators, investigating judges or prosecutors with regard to a criminal investigation could and may still be challenged before a more senior prosecutor or a court.

The objectivity and impartiality incumbent on any judge oblige me to concede that the rights in question are for the time being merely theoretical. The Court is certainly right to note: “ ... at the date on which the present application was declared admissible, no decision had been produced to it in which the Supreme Court or other courts were able, in the absence of any results from the criminal investigation, to consider the merits of a claim relating to alleged serious criminal actions ” (see paragraph 119 of the judgment). While acknowledging with bitterness the truth of those remarks, I should like nonetheless to convey in this separate opinion a more encouraging “message”: yes, the domestic legal order does provide for remedies, and although they are not easily pursued, one must in any event attempt to use them .

The example of Mr Khas hiev and, to a lesser degree, that of Ms Akayeva, show that certain remedies (particularly under civil procedure) are more effective than others. Admittedly, the decisions of 7 April 2000 by the Malgobek District Court in Ingushetia (which established as a matter of law that four of the first applicant ' s relatives had died) and of 26 February 2003 by the Nazran District Court (Ing u shetia), awarding the first applicant compensation of 675,000 roubles for pecuniary and non-pecuniary damage, afforded only partial reparation for the losses sustained. It is true, as the Court emphasises in this judgment (paragraph 121), that the Contracting State s ' obligation under the Convention to conduct an investigation capable of leading to the identification and punishment of those responsible in cases of fatal assault might be rendered illusory if an applicant w as required to exhaust an action leading only to an award of damages ( YaÅŸa v. Turkey , judgment of 2 September 1998, Reports 1998 VI, p. 2431, § 74). However, I cannot share the Court ' s opinion that the decision of the Nazran District Court does not have any bearing on the effectiveness of a civil action for the purposes of the rule on the exhaustion of domestic remedies (paragraph 121). Ultimately, the Nazran District Court took the criminal investigation into account, despite the fact that it had been suspended, thus displaying a certain legal realism. In its judgment in the Akdivar case, the Court laid stress on the allocation of the burden of proof in the area of the exhaustion of domestic remedies: “ It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redr ess in respect of the applicant ' s complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement ” ( Akdivar and Others v. Turkey , judgment of 16 September 1996, Reports of Judgments and Decisions 1996 ‑ IV, p. 1211, § 68 ). Should the domestic courts, as well as applicants, be discouraged from commencing civil proceedings before completion of the criminal investigation? I doubt very much that this would be the correct approach. I am reassured by the fact that Article 413 of the Code of Criminal Procedure of the Russian Federation obliges the judicial authorities to send a case back to the domestic courts for re-examination where the Constitutional Court of the Russian Federation or the European Court of Human Rights finds a viola tion of an applicant ' s rights.

As to Article 13 of the Convention, in the light of the grounds on which the Court held that there had been a procedural violation of Articles 2 and 3 but also for the reasons set out above, I come to the conclusion that no separate question arises under that provision in this case.

PARTLY DISSENTING OPINION OF JUDGE ZAGREBELSKY

I regret that I am unable to share the opinion of the majority of the Court with regard to the finding of a violation of Article 13 of the Convention.

In my view, there is no room in this case for finding a violation of Article 13 on the ground that there was no domestic remedy to redress the violation of Articles 2 and 3 of the Convention. I believe that, in this case, the finding a violation of the procedural aspect of th o se Articles covers all aspects of the shortcomings in the domestic system concerned.

The applicants had an effective domestic remedy for their right to compensation or to an indemnity , and indeed Mr Khashiyev succeeded in obtaining such redress from the Nazran District Court (§ 39-42). The successful conclusion of the civil procedure brought by Mr Khashiyev is, in my opinion, a clear demonstration of the effectiveness of that remedy, which was also open to the other applicant.

I consider that no importance should be attached to the fact that the Nazran District Court ordered the State to pay the indemnity , rather than a private citizen who might be held personally responsible for the violations we are dealing with. The failure to identify the perpetrators of the acts which led to the violation of the applicants ' rights had no bearing on the outcome of the civil proceedings brought by Mr Khashiyev.

I accept that an effective criminal investigation may, in some cases, be necessary in order to allow the victims to vindicate their own rights before a civil court. For instance, in the case of Isayeva, Yusupova and Bazayeva v. Russia (applications nos. 57947/00, 57948/00 and 57949/00) and in the case of Zara Isayeva v. Russia (application no. 57950/00) the criminal investigations were closed for “lack of corpus delicti ”, and I consider such an outcome to be clearly detrimental to the chances of success of a civil action against the persons responsible and/or the State.

In this case, however, the ineffectiveness of the criminal investigation did not prevent a successful outcome of the civil action.

In my view, the Court ' s case-law, closely linked as it is to the particular facts of each case, is far from unambiguous with regard to the relationship between the State ' s procedural obligations under Articles 2 and 3 and the obligation under Article 13 to introduce into the domestic system an effective remedy for violations of the Convention (see the different solutions recently adopted by the Court in Öneryıldız v. Turkey ( [GC], no. 48939/99 , judgment of 30 November 2004) , a nd in Makaratzis v. Greece ( [GC], no. 50385/99, judgment of 20 December 2004). This ambiguity arises because the introduction by the Court ' s case-law of various positive procedural obligations under Articles 2 and 3 poses a problem of coordination with the scope of Article 13.

We have first to take into consideration the consistent case-law according to which the Court does not recogni s e under Article 6 a victim ' s right to institute criminal proceedings and to obtain punishment of the person who allegedly violated his or her rights.

It is only when Articles 2 and 3 of the Convention are at stake that a criminal investigation must be conducted ex officio , to identify and, where appropriate, to punish the individuals responsible.

However, the State ' s procedural obligations under Articles 2 and 3 give rise to victims ' rights that find their protection exclusively in the Court ' s supervision of the State authorities ' compliance with those obligations. In my view, therefore, when the Court finds a violation of the procedural obligations of Articles 2 and 3, no room is left for considering whether there has also been a violation of Article 13: no room, and no necessity in terms of securing effective protection of the Convention ' s rights. As I have stated, an exception must be made where the lack of an effective investigation hinders an effective domestic remedy which could lead to an appropriate indemnity or compensation.

This not being the case, and having found a violation of the procedural aspects of Article 2 and 3, I conclude that no separate issue arises under Article 13 of the Convention.