CASE OF SABANCHIYEVA AND OTHERS v. RUSSIAJOINT DISSENTING OPINION OF JUDGES HAJIYEV AND DEDOV
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Document date: June 6, 2013
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JOINT DISSENTING OPINION OF JUDGES HAJIYEV AND DEDOV
We regret that we cannot share the view of the majority that there has been a violation of Article 8. The general idea of the judgment in these cases is that, while the State is authorised to regulate the funeral ceremonies, it should not overstep its margin of appreciation, in order to ensure respect for relatives’ rights to participate in such ceremonies, and should not limit those rights automatically, without an individualised approach. However, as stated by the Russian Constitutional Court (see paragraph 33 of the judgment) and also confirmed by the Court as a basis for the legitimate aim (see paragraphs 128-129), there exists a risk of further violence. Once the location and date of the ceremony have been disclosed, it is extremely difficult or even impossible for the State to avoid completely such a risk, engendered by stress and hatred. In such a situation of uncertainty it is hard for the State to determine whether and where it “overstepped” its margin of appreciation.
Thus, the measure proposed by the Court would be proportional only if it were to be proved (it is not) that the Article 8 right in question is more important than the rights of others to live, and to live in peace. The importance of the right in question is undermined by the fact that the terrorists waived their social obligation to maintain peace and left their homes to wage war – and not merely war, but a war against civilians – and that terrorists usually sacrifice their own bodies in their attacks; the applicants must accept this from the very outset, and thus they must adjust their expectations in the light of the dramatic consequences incurred by society as a whole.
Annex.
List of the applicants and their deceased relatives
The applicants are fifty Russian nationals who live in the Republic of Kabardino-Balkaria and, unless stated otherwise, are residents of the town of Nalchik. They are:
(1) Mrs Kelimat Akhmatovna Sabanchiyeva, who was born in 1961, and whose complaint concerns the death of her son Mr Khadjimurat Kurbanovich Kurbanov, who was born on 25 October 1984 (1982 [1] );
(2) Mr Khusen Leonidovich Shibzukhov, born in 1949, concerning the death of his son Mr Anzor Khuseynovich Shibzukhov, born on 23 June 1984;
(3) Mr Anatoliy Narychevich Bitokov, born in 1947, concerning the death of his son Mr Murat Anatolyevich Bitokov, born on 22 September 1980;
(4) Mrs Raya Bilyalevna Chechenova, born in 1952, concerning the death of her son Mr Stanislav Borisovich Chechenov, born on 1 December 1973;
(5) Mrs Larisa Saradinovna Alakayeva, born in 1957, concerning the death of her son Mr Saradin Khautiyevich Alakayev, born on 13 September 1980;
(6) Mr Barasbi Khudovich Boziyev, who was born in 1947 and lives in the village of Ardugan, concerning the death of his son Mr Sosruko Barasbiyevich Boziyev, born on 17 February 1977;
(7) Mr Yuriy Natribovich Khagov, who was born in 1937 and lives in the village of Terek, concerning the death of his son Mr Zalim Yuryevich Khagov, born on 11 August (September) 1968;
(8) Mrs Raisa Albiyanovna Mamresheva, who was born in 1951 and lives in the village of Terek, concerning the death of her son Mr Vyacheslav Borisovich Shoghemov (Shogemov), born on 20 September 1975;
(9) Mrs Anzhelika Yuryevna Arkhestova, born in 1970, concerning the death of her brother Mr Anzor Yuryevich Kertbiyev, born on 13 April 1974;
(10) Mrs Fatimat Khazritovna Tkhagalegova, who was born in 1963 and lives in the village of Nartan, concerning the death of her brother Anzor Khazritovich Bichoyev, born on 18 August 1972;
(11) Mrs Rita Ramazanovna Dzantuyeva, born in 1959, concerning the death of her son Mr Aleksandr Lenovich Bashloyev, born on 29 December 1980 (1975);
(12) Mrs Fatima Amerkhanovna Mamayeva, born in 1973, concerning the death of her husband Mr Timur Makhtyevich Mamayev, born on 22 September 1972;
(13) Mrs Yelena Khabidovna Karmova, born in 1952, concerning the death of her son Mr Martyn Nikolayevich Karmov, born on 19 February 1972 (1978);
(14) Mrs Alesya Khazritovna Shidakova, who was born in 1955 and lives in the village of Inarkoy, concerning the death of her son Mr Dzhambulat Khamishevich Shidakov, born on 6 November 1978;
(15) Mr Timofey Alesovich Nabitov, born in 1942, concerning the death of his sons, Mr Azamat Timofeyevich Nabitov, born on 20 (29) December 1979, and Mr Djambulat Timofeyevich Nabitov, born on 9 January 1982;
(16) Mrs Raisa Shamgunovna Keresheva, born in 1956, concerning the death of her sons, Mr Rustam Ruslanovich Kereshev, born on 4 December 1979, and Mr Anzor Ruslanovich Kereshev, born on 16 March 1984;
(17) Mr Betal Muradinovich Kerefov, born in 1946, concerning the death of his son Mr Kazbulat Betalovich Kerefov, born on 15 May 1980; this applicant died on 4 December 2009 and his widow, Ms Fatimat Mukhabovna Kerefova, born on 3 November 1949, decided to pursue the application;
(18) Mr Magomed Khasymovich Attoyev, born in 1941, concerning the death of his son Mr Murat Magomedovich Attoyev, born on 27 April (24 July) 1978;
(19) Mrs Zhanna Fyodorovna Ifraimova, born in 1968, concerning the death of Mr Ruslan Borisovich Tamazov, born on 31 March (May) 1980;
(20) Mrs Aysha Ismailovna Chagiran, born in 1952, concerning the death of her son Mr Djambulat Mukhamedovich Bittirov, born on 1 April 1985;
(21) Mr Aserbi Lanovich Makoyev, born in 1956, concerning the death of his son Mr Murat Aserbiyevich (Askerbiyevich) Makoyev, born on 1 June (July) 1981;
(22) Mr Sait Mukhamedovich Bashora, born in 1949, concerning the death of his son Mr Ruslan Saitovich Tishkov, born on 1 August 1980;
(23) Mrs Taya Alekseyevna Khavzhokova, who was born in 1958 and lives in the village of Nartan, concerning the death of her son Mr Alim Khataliyevich Khavzhokov, born on 8 September 1979;
(24) Mr Kunak Ismailovich Guziyev, born in 1944, concerning the death of his son Mr Ramazan Konakovich Guziyev, born on 26 September 1975;
(25) Mr Amerbi Yakhiyaevich Afov, born in 1937, concerning the death of his son Mr Zaur Amerbiyevich Afov, born on 3 April 1975 (1976);
(26) Mrs Yulia Anurdinovna Khagabanova, born in 1982, concerning the death of her brother Mr Edik Rasimovich Abidokov, born on 23 (20) March 1973;
(27) Mrs Lidiya Zhambulatovna Zhelikhazheva, born in 1942, concerning the death of her son Mr Alim Sultanovich Zhelikhazhev, born on 23 March 1976;
(28) Mr Tengiz Valeryevich Mokayev, born in 1987, concerning the death of his brother Mr Aleksandr Valeriyevich Mokayev, born on 17 (19) July 1978;
(29) Mrs Emma Auzinovna Sherdiyeva, born in 1963, concerning the death of her son Mr Rustam Ruslanovich Nafedzov, born on 13 January 1981; this applicant died on 26 August 2006 and the deceased’s widow, Mrs Zhanneta Khamidbiyevna Khazhbiyeva, born on 3 December 1982, decided to pursue the application;
(30) Mrs Zhanetta Martinovna Kushkhova, born in 1944, concerning the death of her son Mr Zaurbek Huseynovich Kushkhov, born on 25 November 1977;
(31) Mr Khazret-Ali Islamovich Khalilov, born in 1950, concerning the death of his son Mr Murat Khazret-Aliyevich Khalilov, born on 9 January 1981; this applicant died on 25 December 2006 and the deceased’s widow, Ms Zyuzanna Khazretovna Khalilova, born on 29 April 1983, decided to pursue the application;
(32) Mr Ladin Khazhisetovich Gendukov, who was born in 1955 and lives in the village of Altud, concerning the death of his son Mr Roman Ladinovich Gendukov (Gendugov), born on 3 October 1981;
(33) Mr Vladimir Khazeshevich Vorokov, born in 1946, concerning the death of his son Mr Azamat Vladimirovich Vorokov, born on 22 April 1978;
(34) Mr Murat Yuryevich Pshikhachev, born in 1974, concerning the death of his brother Mr Muslim Yuryevich Pshikhachev, born on 16 February 1976;
(35) Mr Fyodor Aliyevich Abidov, born in 1957, concerning the death of his son Mr Zaurbek Fyodorovich Abidov, born on 9 June 1983;
(36) Mr Liuan Mukhazhirovich Kardanov, who was born in 1952 and lives in the village of Urvani, concerning the death of his son Mr Mukharbi Liuyanovich Kardanov, born on 11 December 1979;
(37) Mr Atabi Sakhatgeriyevich Kardanov, born in 1948, concerning the death of his son Mr Oleg Atabiyevich Kardanov, born on 16 November 1981;
(38) Mrs Rita Aslamurzovna Anzorova, who was born in 1960 and lives in the town of Nartkala, concerning the death of her son Mr Artur Khasanovich Ezdekov, born on 14 September 1979;
(39) Mr Karalbi Masadovich Amshokov, born in 1933, concerning the death of his son Mr Akhmed Karalbiyevich Amshokov, born on 13 May 1977;
(40) Mr Boris Betalovich Kuchmenov, born in 1942, concerning the death of his son Mr Anzor Borisovich Kuchmenov, born on 19 November 1973;
(41) Mrs Aminat Umarovna Psanukova, born in 1949, concerning the death of her son Mr Zaur Isufovich Psanukov, born on 10 September 1977;
(42) Mrs Fatima Nakhupshovna Arkhagova, born in 1951, concerning the death of her son Mr Aslan Karalbiyevich Arkhagov, born on 30 (31) January 1979;
(43) Mr Khuseyn Hazhmuratovich Atalikov, born in 1952, concerning the death of his son Mr Islam Khuseynovich Atalikov, born on 15 (13) October 1982;
(44) Mrs Lyubov Mikhaylovna Gonibova, born in 1952, concerning the death of her son Mr Akhmed Khasanbiyevich Gonibov, born on 3 September 1985;
(45) Mrs Zoya Ibragimovna Afaunova, born in 1955, concerning the death of her son Mr Gisa Musovich Afaunov, born on 1 January 1975;
(46) Mrs Fatimat Abubachirovna Erzhibova, born in 1956, concerning the death of her son Mr Beslan Leonidovich Erzhibov, born on 17 July 1983;
(47) Mrs Fatima Khursanovna Gudova, born in 1959, concerning the death of her son Mr Ruslan Aslanbiyevich Gudov, born on 7 January 1980;
(48) Mr Oksana Nikolayevna Daova, born in 1977, concerning the death of her brother Mr Valeriy Nikolayevich Tleuzhev, born on 22 (21) July 1975, and her husband Mr Zurab Nazranovich (Narzanovich) Daov, born on 18 March 1972;
(49) Mr Zaur Mukhamedovich Terkulov, born in 1981, concerning the death of his brother Mr Eldar Mukhamedovich Terkulov, born on 1 May 1983;
(50) Mr Boris Zaudinovich Bagov, born on an unspecified date and concerning the death of his nephews Mr Anzor Yuriyevich Bagov, Mr Zaur Yuriyevich Bagov and Mr Aslan Yuriyevich Bagov, born on 12 September 1977 and 8 June 1979 and on 23 July 1987 respectively.
Table 1 ( see paragraph 42 )
No.
The applicants
Date of a final judgment
3
Mr Anatoliy Narychevich Bitokov
28 November 2008
15
Mr Timofey Alesovich Nabitov, in respect of his sons Mr Azamat Timofeyevich Nabitov and Mr Djambulat Timofeyevich Nabitov
17 June 2008
17
Mr Betal Muradinovich Kerefov
28 November 2008
30
Mrs Zhanetta Martinovna Kushkhova
22 July 2008
38
Mrs Rita Aslamurzovna Anzorova
28 November 2008
41
Mrs Aminat Umarovna Psanukova
28 November 2008
49
Mr Zaur Mukhamedovich Terkulov
5 September 2008
Table 2 ( see paragraph 44 )
No.
The applicants
Date of a final judgment
5
Mrs Larisa Saradinovna Alakayeva
9 November 2007
6
Mr Barasbi Khudovich Boziyev; due to his state of health, court proceedings conducted by his wife Ksenya Aripsheva
20 November 2007
9
Mrs Anzhelika Yuryevna Arkhestova
23 May 2008
10
Mrs Fatimat Khazritovna Tkhagalegova
14 December 2007
11
Mrs Rita Ramazanovna Dzantuyeva
14 March 2008
13
Mrs Yelena Khabidovna Karmova
3 November 2007; this judgment was apparently quashed by the Supreme Court of Russia by way of supervisory review on 14 January 2009
14
Mrs Alesya Khazritovna Shidakova
22 August 2008
16
Mrs Raisa Shamgunovna Keresheva, in respect of her son Rustam
14 March 2008
16
Mrs Raisa Shamgunovna Keresheva, in respect of her son Anzor
9 November 2007
19
Mrs Zhanna Fyodorovna Ifraimova
25 November 2008
20
Mrs Aysha Ismailovna Chagiran
11 April 2008
22
Mr Sait Mukhamedovich Bashora
25 April 2008
24
Mr Kunak Ismailovich Guziyev
09 November 2007
27
Mrs Lidiya Zhambulatovna Zhelikhazheva
04 July 2008
28
Mr Tengiz Valeryevich Mokayev
22 August 2008
31
Mr Khazret-Ali Islamovich Khalilov
09 November 2007
40
Mr Boris Betalovich Kuchmenov
14 March 2008
45
Mrs Zoya Ibragimovna Afaunova
22 August 2008
46
Mrs Fatimat Abubachirovna Erzhibova
14 March 2008
50
Mr Boris Zaudinovich Bagov, in respect of his nephews Mr Anzor Yuriyevich Bagov, Zaur Yuriyevich Bagov and Aslan Yuriyevich Bagov; court proceedings were conducted by the father of the three deceased, Mr Yuri Zaudinovich Bagov
22 July 2008
Table 3 ( see paragraph 46 )
No.
The applicants
Date of a final judgment
7
Mr Yuriy Natribovich Khagov
6 May 2008
23
Mrs Taya Alekseyevna Khavzhokova
26 August 2008
47
Mrs Fatima Khursanovna Gudova
26 August 2008
Table 4 ( see paragraph 47 )
No.
The applicants
Date of a final judgment
29
Mrs Emma Auzinovna Sherdiyeva
4 June 2008
36
Mr Liuan Mukhazhirovich Kardanov
6 February 2007
Table 5 ( see paragraph 59 )
No.
The applicants
Participation in identification
1
Mrs Kelimat Akhmatovna Sabanchiyeva
on 20-25 October 2005
3
Mr Anatoliy Narychevich Bitokov
on 17, 20 or 21 October 2005
7
Mr Yuriy Natribovich Khagov
on 18 October 2005
9
Mrs Anzhelika Yuryevna Arkhestova
on an unspecified date in October 2005
10
Mrs Fatimat Khazritovna Tkhagalegova
on 19 October 2005
12
Mrs Fatima Amerkhanovna Mamayeva
on an unspecified date in October 2005
13
Mrs Yelena Khabidovna Karmova
on 16 October 2005
15
Mr Timofey Alesovich Nabitov
on 18 October 2005
17
Mr Betal Muradinovich Kerefov
on 21 October 2005
18
Mr Magomed Khasymovich Attoyev
on 13 October 2005
19
Mrs Zhanna Fyodorovna Ifraimova
on 19 and 20 October 2005
20
Mrs Aysha Ismailovna Chagiran
on 16-18 October 2005
21
Mr Aserbi Lanovich Makoyev
on 19 October 2005
22
Mr Sait Mukhamedovich Bashora
on 18-20 October 2005
23
Mrs Taya Alekseyevna Khavzhokova
on 16, 17 and 18 October 2005
24
Mr Kunak Ismailovich Guziyev
on 16 October 2005
25
Mr Amerbi Yakhiyaevich Afov
on 20 October 2005
27
Mrs Lidiya Zhambulatovna Zhelikhazheva
on 20 October 2005
28
Mr Tengiz Valeryevich Mokayev
on 19 October 2005
29
Mrs Emma Auzinovna Sherdiyeva
on 19 October 2005
31
Mr Khazret-Ali Islamovich Khalilov
on 19 October 2005
34
Mr Murat Yuryevich Pshikhachev
on an unspecified date in October 2005
35
Mr Fyodor Aliyevich Abidov
on an unspecified date in October 2005
37
Mr Atabi Sakhatgeriyevich Kardanov
on 20 October 2005
38
Mrs Rita Aslamurzovna Anzorova
on 24 October 2005
39
Mr Karalbi Masadovich Amshokov
on 26 October 2005
40
Mr Boris Betalovich Kuchmenov
on 21 October 2005
42
Mrs Fatima Nakhupshovna Arkhagova
on 21 or 22 October 2005
43
Mr Khuseyn Hazhmuratovich Atalikov
on an unspecified date in October 2005
45
Mrs Zoya Ibragimovna Afaunova
on 21 October 2005
47
Mrs Fatima Khursanovna Gudova
on 27 and 28 October 2005
48
Mr Oksana Nikolayevna Daova
on 21 October 2005
49
Mr Zaur Mukhamedovich Terkulov
on 17 October 2005
[1] If the case file contains conflicting data on the exact spelling of names and birthdates of the deceased, the alternative data is given in brackets.