ПОСТАНОВЛЕНИЕ Европейского суда по правам человека от 24.02.2005<ДЕЛО ИСАЕВА (isayeva), ЮСУПОВА (yusupova) И БАЗАЕВА (bazayeva) ПРОТИВ РОССИИ> [англ.]

(Applications Nos. 57947/00,
57948/00 and 57949/00)
(Strasbourg, 24.II.2005)
In the case of Isayeva v. Russia, Yusupova v. Russia and Bazayeva v. Russia
<*> This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
The European Court of Human Rights (Former First Section), sitting as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr P. Lorenzen,
Mr G. Bonello,
Mrs F. Tulkens,
Mrs {N. Vajic} <*>,
Mr A. Kovler,
Mr V. Zagrebelsky, judges
and Mr S. Nielsen, Section Registrar,
<*> Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.
Having deliberated in private on 14 October 2004 and 27 January 2005,
Delivers the following judgment, which was adopted on the last-mentioned date:
1. The case originated in three applications (Nos. 57947/00, 57948/00 and 57949/00) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by three Russian nationals, Medka Chuchuyevna Isayeva, Zina Abdulayevna Yusupova and Libkan Bazayeva ("the applicants"), on 25, 27 and 26 April 2000 respectively.
2. The applicants, who had been granted legal aid, were represented by Mr Kirill Koroteyev, a lawyer of Memorial, a Russian Human Rights NGO based in Moscow, and Mr William Bowring, a lawyer practicing in London. The Russian Government ("the Government") were represented by Mr P.A. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.
3. The applicants alleged, in particular, that they were victims of indiscriminate bombing by Russian military planes of a civilian convoy on 29 October 1999 near Grozny. As a result of the bombing, two children of the first applicant were killed and the first and the second applicants were wounded. The third applicant"s cars and possessions were destroyed. The applicants alleged a violation of Articles 2, 3 and 13 of the Convention and of Article 1 of Protocol No. 1.
4. The applications were allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.
5. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed First Section (Rule 52 § 1).
6. The Chamber decided to join the proceedings in the applications (Rule 42 § 1).
7. By a decision of 19 December 2002, the Court declared the applications admissible.
8. The applicants and the Government each filed observations on the merits (Rule 59 § 1).
9. A hearing took place in public in the Human Rights Building, Strasbourg, on 14 October 2004 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights, Agent,
Mr Y. Berestnev, Counsel,
Mrs A. Saprykina, Adviser;
(b) for the applicants
Mr B. Bowring, Professor, Counsel,
Mr P. Leach,
Mr K. Koroteyev, Advisers.
The Court heard addresses by Mr Laptev, Mr Bowring, Mr. Leach and Mr. Koroteev.
I. The circumstances of the case
10. The first applicant was born in 1953, the second applicant was born in 1955 and the third applicant was born in 1945. The first two applicants are residents of Chechnya. The third applicant currently lives in Germany.
A. The facts
11. The facts surrounding the bombing of the civilian convoy and the ensuing investigation were partially disputed. In view of this fact, the Court requested the Government to produce copies of the entire investigation files opened in relation to the bombing. The Court also asked the applicants to produce additional documentary evidence in support of their allegations.
12. The submissions of the parties on the facts concerning the circumstances of the attack on the convoy and the ensuing investigation are set out in Sections 1 and 2 below. A description of the materials submitted to the Court is contained in Part B.
1. The attack on the civilian convoy
13. The first and third applicant lived in the city of Grozny, and the second applicant in Staraya Sunzha, which is a suburb of Grozny. In the autumn of 1999 hostilities began in Chechnya between the federal military forces and Chechen fighters. The city and its suburbs were the targets of wide-scale attacks by the military. The applicants allege that at some date after 25 October 1999 they learned from radio and television announcements, including on the all-Russian channels RTR and ORT, that on 29 October 1999 a "humanitarian corridor" would be arranged for civilians to escape from the fighting in Grozny.
14. Because of the attacks the third applicant and her family left Grozny on 26 October 1999 and went to stay with relatives in the village of Gekhi. The first applicant and her relatives tried to cross the border with Ingushetia on 28 October, but were told by the military at a roadblock that the corridor for civilians would be open the next day.
15. Early in the morning of 29 October 1999 the first and the second applicants and their relatives - about a dozen persons in a RAF mini-van - left Grozny along the road towards Nazran, also known as the Rostov-Baku highway, or the "Kavkaz" highway. Around 8 a.m. they reached the military roadblock "Kavkaz-1" on the administrative border between Chechnya and Ingushetia. There was already a line of cars about one kilometre long. The first applicant and some relatives walked to the roadblock and the military informed them that they were expecting an order from their superiors to open the road, and that the order should arrive at about 9 a.m. The weather was bad at that time, it was cloudy and raining.
16. The family of the third applicant left the village of Gekhi at about 5 a.m. on 29 October 1999 in three cars, a Zhiguli, a Niva and a blue GAZ-53, and travelled along the road to Nazran. When they reached the queue in front of the roadblock, they were assigned numbers 384 and 385 in the line. The line of cars grew very quickly, and there were three or four times as many cars behind them as in front. The third applicant estimated that there were over 1,000 cars in the column, including trucks, vans and buses.
17. People started asking the servicemen about the opening of the border. At first they were told that it should be opened after 9 a.m., and that the soldiers were expecting an order to that effect. The first applicant estimated that about 11 a.m. a senior officer came out and told the people that the "corridor" would not be opened that day and that he had no information as to when it would be opened. According to the applicants, he also ordered everyone to clear the space in front of the roadblock and to return to Grozny. The column started to turn around, but progress was very slow because there were several lanes of cars and little space.
18. The applicants turned around and were slowly moving with the convoy away from the roadblock. According to the second applicant, there was a large number of cars, and the column stretched over about 12 kilometres. Sometime later the clouds cleared and the applicants saw two planes in the sky. The planes turned over the column and fired missiles.
19. The driver of the first and the second applicants" minivan stopped and the passengers started to get out. The first applicant"s children, Ilona (also spelled Elona) Isayeva (born in 1983) and Said-Magomed Isayev (born in 1990) and her sister-in-law Asma Magomedova (born in 1954) were the first to get out. The first applicant saw them thrown to the side of the road by a blast. She recalled that the planes circled around the convoy and dropped bombs several times. The first applicant"s right arm was hit by a fragment of a shell and she fainted. When she regained consciousness and ran to her relatives, all three were dead from shell-wounds. Another woman, Kisa Asiyeva, who was in the minivan, was also killed. After the attacks were over, the first applicant was taken by car with other wounded person to a hospital in Atagi. The doctors treated the wounds and sent her home, because there was no room in the hospital. One week later the first applicant travelled to Nazran, Ingushetia, where she had an operation on her right arm. She needs another operation on her arm.
20. The second applicant recalls that, as their mini-van was nearing Shaami-Yurt, they saw two planes in the sky launching rockets. In a few minutes a rocket hit a car immediately in front of theirs. The second applicant thought the driver was hit, because the car turned around abruptly. When they saw this, everyone started to jump out of the minivan, and then the second applicant was thrown over by another blast. She fainted, and when she regained consciousness, she realised that two of the first applicant"s children, Ilona Isayeva and Said-Magomed Isayev, were dead. The second applicant believes that there were eight explosions after the first one. She was dragged to the side of the road by others, but later she returned to the road to help the first applicant to collect the bodies. Said-Magomed had a wound to the abdomen and Ilona"s head had been torn away, and one leg was crushed. The second applicant was wounded by shells in the neck, arm and hip. Their minivan was not hit, and they used it to leave the scene afterwards. On 7 November 1999 she was taken to Ingushetia by ambulance for further treatment.
21. The third applicant was in a Zhiguli car with her husband and his friend. Her son and two of her husband"s nephews, one with his wife, were in the GAZ car behind them. She recalled that the rain stopped and the sky cleared when they passed the village of Khambirzi and were nearing the village of Shaami-Yurt. Then there was a powerful blast, and their car was thrown to the left side of the road. All its windows were broken. The third applicant realised that there had been a blast behind, and she ran over to see if her son and his cousins were alive. She believes that in the 50 - 60 metres she ran along the road to find her son"s car, she saw several destroyed cars, vans and trucks and 40 - 50 dead bodies, disfigured and mutilated, some of them in vehicles, some thrown around by the blasts. She recalled a bus with the rear side totally destroyed and a Kamaz truck with human and cattle bodies inside.
22. The third applicant, her husband and their friend picked up some people who needed help. Their Zhiguli car had flat tyres, but they reached Shaami-Yurt, where they changed tyres. They then travelled back to Gekhi where their relatives lived. In the meantime, the applicant"s son picked up the wounded and took them to a hospital in Achkhoy-Martan, the district centre. He later returned to the place of the bombing, as he was not sure if the third applicant had been able to leave it. The planes were still flying over the remains of the convoy and struck again. Their GAZ car with all the family possessions was destroyed by a direct hit, as well as their Niva car. The applicant"s son and his cousins ran on foot through neighbouring villages, and in the evening reached Gekhi. They later fled to Ingushetia.
23. The applicants are not certain about the exact timing of the attack, as they were in a state of shock. They accepted the timing of the attack given by the Government. They submitted transcripts to the Court of interviews with other witnesses of the attack. In their testimonies these witnesses described the bombing of a convoy of refugees from Grozny near the village of Shaami-Yurt on 29 October 1999, confirming that after the strikes they saw numerous burned and damaged cars, including at least one Kamaz truck filled with civilians and at least one bus. They also confirmed that there were dozens of victims, killed and wounded. Several testimonies concerned the deaths of the first applicant"s relatives (see Part B below for a description of the testimonies).
24. The applicants submitted that they saw only civilians in the convoy, and that they did not see anyone from the convoy attempting to attack the planes.
25. According to the Government, on 29 October 1999 the representative of the Chechen Committee of the Red Cross decided to evacuate the office to Ingushetia. As he did not co-ordinate the move with the military authorities, when he and a convoy of vehicles reached the check-point "Kavkaz-1" on the administrative border with Ingushetia, they had to turn back as the check-point was closed.
26. The Red Cross could have used the opportunity to inform the security and military authorities in advance about their travel, which would have made it possible for them to ensure a safe evacuation route. The checkpoint was closed because it could not supervise the passage of a "fair quantity of refugees". On the way back to Grozny the convoy was joined by a Kamaz truck carrying rebel Chechen fighters.
27. At that time the military authorities were planning and conducting counter-terrorist operations in the Achkhoy-Martan district, aimed at preventing supplies and personnel of the rebel fighters being brought to Grozny by heavy transport, as well as identification and suppression of any other persons, supporting networks or command centres offering armed resistance to the authorities.
28. As part of that mission, on 29 October 1999 two military SU-25 aeroplanes, flown by military pilots identified for security reasons as "Ivanov" and "Petrov", were on a mission to conduct reconnaissance and to suppress such movements. At around 2 p.m., when flying over the village of Shaami-Yurt, they saw vehicles moving towards Grozny. The planes were attacked from a Kamaz truck with large-calibre infantry fire-arms. The pilots reported the attack to an air-traffic controller identified as "Sidorov" at the command headquarters, and were granted permission to use combat weapons. At about 2.15 p.m. the planes fired four rockets each from a height of about 800 metres at the Kamaz, which they estimated carried at least 20 fighters, and destroyed it. They then located a second Kamaz truck on the same road on an intersection with a road to the village of Kulary,

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