CASE OF SABANCHIYEVA AND OTHERS v. RUSSIA

Preliminary objection dismissed (Art. 34) Individual applications;(Art. 34) Locus standi;No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8 - Right to respect for private and family life);No violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life);Non-pecuniary damage - finding of violation sufficient

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković

Early in the morning of CARDINAL DATE law - enforcement agencies in the town of GPE , in GPE , were attacked by a number of heavily armed persons , who appear to have been local insurgents . The agencies included ORG of ORG , ORG of ORG of ORG , various district departments of ORG , ORG of ORG , various checkpoints of ORG , ORG of ORG , ORG of ORG , the office of ORG of ORG and a few privately owned weapons shops . According to the Government , there were CARDINAL participants in the attack .

The ensuing fight between the governmental forces and the insurgents lasted until CARDINAL DATE .

The applicants submitted that they were relatives of participants in the attack who died on CARDINAL and DATE or shortly afterwards ( see the annex listing the applicants’ family connections to the deceased persons ) .

The Government did not dispute this claim , with the exception of DATE applicant , PERSON , who , in their view , was not in any way related to the deceased Mr PERSON GPE .

According to the nineteenth applicant ’s initial statement , the deceased Mr PERSON GPE was her husband . She later changed this submission , stating that they were not officially married but had lived together since DATE . At the time of the events in DATE she was DATE pregnant . The nineteenth applicant has submitted a copy of a birth certificate issued on DATE in the name of ORG , born on DATE . The certificate names Mr PERSON GPE as the girl ’s father and the nineteenth applicant as her mother .

According to the information initially provided by the Government , on CARDINAL and DATE their forces successfully repelled the attack and killed CARDINAL local insurgents . The Government did not specify the names of those killed .

The Government also stated that on DATE they arrested Mr PERSON ( one of the QUANTITY nephews of the fiftieth applicant ) , who had gunshot wounds to the head and chest . He died in prison on DATE .

On DATE Mr PERSON GPE ( CARDINAL of the seventeenth applicant ’s sons and a participant in the attack of CARDINAL DATE ) fired shots at police officers manning a local checkpoint and was killed when the officers returned fire .

In their observations on the admissibility of the case , the ORG stated that the authorities had killed a total of CARDINAL insurgents in the anti - terrorist operations mounted in response to the attack of CARDINAL DATE .

In essence , they acknowledged that all of the deceased referred to by the applicants were among those killed by the authorities .

It appears that on DATE the authorities instituted criminal proceedings no . CARDINAL - CARDINAL - CARDINAL in connection with the attack in GPE .

In the course of the investigation it was established that DATE a group of individuals , including PERSON , ORG . PERSON , PERSON , PERSON , PERSON and ORG , had formed a terrorist group . It was this group that organised the attack . CARDINAL law - enforcement officers and QUANTITY civilians were killed , whilst CARDINAL law - enforcement officers and CARDINAL civilians were injured . Massive damage was done to property .

The applicants did not have any procedural status in the criminal proceedings in case no . CARDINAL - CARDINAL - CARDINAL .

NORP Immediately following the attack , on CARDINAL , DATE , DATE and DATE an unspecified number of persons ( including some of the applicants ) signed collective petitions requesting various officials , including the prosecutors , to return the bodies for burial .

DATE and until DATE the applicants received replies from the prosecution and other authorities informing them that they would receive definite answers once the investigation into the events had been completed .

Attempts by some of the applicants to challenge these replies in the domestic courts were unsuccessful , as they were rejected as premature both at first instance and on appeal .

On DATE the investigation authority terminated the criminal proceedings in respect of the CARDINAL deceased insurgents on account of their deaths . An individual decision had been taken in respect of each of them , describing the degree and character of their individual involvement and concluding that these persons had taken part in the attack and died as a result of the ensuing fight . It appears that the deceased referred to by the applicants were among those concerned by this decision .

The Prosecutor General ’s Office notified the applicants of the above decisions on DATE , but no copies of the decisions in question were attached to the notifications .

Some of the applicants applied to the domestic courts in connection with the authorities’ failure to provide them with copies of the decisions of CARDINAL - DATE . As a result of the proceedings , most of these applicants were furnished with a copy of the relevant decision . However , they were refused standing to take part in the criminal proceedings against the deceased as their official representatives or to have the deceased ’s personal belongings returned to them .

In the GPE proceedings the ORG submitted copies of the decisions of CARDINAL - DATE in respect of each of the applicants’ relatives .

According to the ORG , CARDINAL corpses of the presumed terrorists were cremated on DATE . According to the applicants’ submissions , it appears that they first learned of the cremations from the Government ’s observations in the present case .

According to the ORG , the cremations took place pursuant to a decision not to return the bodies of the deceased to their families , dated DATE . In contrast to the individual decisions of CARDINAL - DATE , the decision of CARDINAL DATE referred to the deceased persons collectively . The decision stated , in particular :

“ ... the head of investigation group ... [ official S. ] , having examined the materials in case file no . CARDINAL - CARDINAL - CARDINAL , established : ... [ that ] in the course of the counter - terrorist special operation aimed at tackling the attack , CARDINAL terrorists were eliminated , namely :

[ The decision names among the deceased all of the persons referred to by the applicants , see the list in the annex . ]

At present all forensic expert examinations , including molecular genetic examinations , involving ... the corpses of the deceased terrorists , have been finalised and their identities have been established by way of proper procedure .

By decisions of CARDINAL - CARDINAL DATE the criminal proceedings in respect of these CARDINAL persons , who had committed ... the attack on various sites and law - enforcement agents of the town of GPE ... were discontinued on account of their deaths , under LAW part CARDINAL subpart CARDINAL and LAW part CARDINAL subpart CARDINAL of LAW .

Pursuant to section CARDINAL(CARDINAL ) of ORG Law no . PERSON ) : “ persons against whom a criminal investigation concerning their terrorist activities has been closed on account of their death following interception of the said terrorist act shall be interred in accordance with the procedure established by ORG of GPE . Their bodies shall not be handed over for burial and the place of their burial shall not be disclosed . ”

Pursuant to part CARDINAL of Decree no . CARDINAL , “ On interment of persons whose death was caused by the interception of terrorist acts carried out by them ” , approved by ORG of GPE on DATE , “ the interment of [ these ] persons shall take place in the locality where death occurred and shall be carried out by agencies specialising in funeral arrangements , set up by organs of the executive branch of the subjects of GPE or by organs of local government ... ”

[ In view of the above , official PERSON decided to : ]

bury the bodies of the CARDINAL terrorists ... ;

forward the decision to the President of GPE for execution ;

inform [ his superiors ] of this decision ” .

The Government alleged that the authorities had notified the applicants of the decision of CARDINAL DATE , but acknowledged that no copy of that decision had been provided to them .

It appears that on several occasions ORG informed the applicants , in substance , of the refusal to return the bodies . It does not appear that the applicants were furnished with a copy of the decision of CARDINAL DATE .

The applicants submitted that they had first obtained a copy of the decision of DATE in DATE , along with the Government ’s observations on the admissibility of the case . They also indicated that they had learned about the cremation of the corpses of their deceased relatives in DATE ( see paragraph CARDINAL above ) .

NORP The applicants’ initial attempts to obtain judicial review of the decisions of CARDINAL - DATE and CARDINAL DATE were unsuccessful , as the courts refused to examine their arguments .

Some of the applicants contested the legislation governing the interment of terrorists before ORG . Their initial complaints were rejected as premature . Eventually , the complaints of the thirteenth and CARDINAL applicants were accepted for examination .

On DATE the ORG delivered a judgment ( no . CARDINAL ) in which , in essence , it rejected their complaints alleging that section CARDINAL(CARDINAL ) of the Interment and Burial Act and Decree no . CARDINAL of the Government of GPE of DATE were unconstitutional . The ruling stated , in particular , that the impugned legal provisions were , in the circumstances , necessary and justified . The court reached the following conclusions regarding the legitimate aims and necessity of the legislation in question :

“ ... At the same time , the interest in fighting terrorism , in preventing terrorism in general and specific terms and in providing redress for the effects of terrorist acts , coupled with the risk of mass disorder , clashes between different ethnic groups and aggression by DATE those involved in terrorist activity against the population at large and law - enforcement officials , and lastly the threat to human life and limb , may , in a given historical context , justify the establishment of a particular legal regime , such as that provided for by section CARDINAL(CARDINAL ) of LAW , governing the burial of persons who escape prosecution in connection with terrorist activity on account of their death following the interception of a terrorist act ... Those provisions are logically connected to the provisions of paragraph LAW CARDINAL ( CARDINAL ) of ORG of ORG on combating terrorism through culture , dated DATE , in which it was stressed that extremist interpretations of elements of a particular culture or religion , such as heroic martyrdom , self - sacrifice , apocalypse or holy war , as well as secular ideologies ( nationalist or revolutionary ) could also be used for the justification of terrorist acts .

Action to minimise the informational and psychological impact of the terrorist act on the population , including the weakening of its propaganda effect , is one of the means necessary to protect public security and the morals , health , rights and legal interests of citizens . It therefore pursues exactly those aims for which LAW and international legal instruments permit restrictions on the relevant rights and freedoms .

The burial of those who have taken part in a terrorist act , in close proximity to the graves of the victims of their acts , and the observance of rites of burial and remembrance with the paying of respects , as a symbolic act of worship , serve as a means of propaganda for terrorist ideas and also cause offence to relatives of the victims of the acts in question , creating the preconditions for increasing inter - ethnic and religious tension .

In the conditions which have arisen in GPE as a result of the commission of a series of terrorist acts which produced numerous human victims , resulted in widespread negative social reaction and had a major impact on the collective consciousness , the return of the body to the relatives ... may create a threat to social order and peace and to the rights and legal interests of other persons and their security , including incitement to hatred and incitement to engage in acts of vandalism , violence , mass disorder and clashes which may produce further victims . Meanwhile , the burial places of participants in terrorist acts may become a shrine for certain extremist individuals and be used by them as a means of propaganda for the ideology of terrorism and involvement in terrorist activity .

In such circumstances , the federal legislature may introduce special arrangements governing the burial of individuals whose death occurred as a result of the interception of a terrorist act in which they were taking part . ... ”

The ruling further noted that the application of the measures prescribed in the legislation could be regarded as justified if proper procedural safeguards , such as effective judicial review , were in place to protect individuals from arbitrariness . The court noted that ORG CARDINAL - CARDINAL of the Code of Criminal Procedure provided for such review ( see paragraph CARDINAL below ) .

In sum , ORG upheld the impugned provisions as being in conformity with the LAW but at the same time interpreted them as requiring that the authorities refrain from burying bodies unless a court had confirmed the competent authority ’s decision . It reasoned as follows :

“ ... The constitutional and legal meaning of the existing norms presupposes the possibility of bringing court proceedings to challenge a decision to discontinue , on account of the deaths of the suspects , a criminal case against or prosecution of participants in a terrorist act . Accordingly , they also presuppose an obligation on the court ’s part to examine the substance of the complaint , that is , to verify the lawfulness and well - foundedness of the decision and the conclusions therein as regards the participation of the persons concerned in a terrorist act , and to establish the absence of grounds for rehabilitating [ the suspects ] and discontinuing the criminal case . They thus entail an examination of the lawfulness of the application of the aforementioned restrictive measures . Until the entry into force of the court judgment the deceased ’s remains can not be buried ; the relevant ORG bodies and officials must take all necessary measures to ensure that the bodies are disposed of in accordance with custom and tradition , in particular through the burial of the remains in the ground ... or by [ cremation ] , individually , if possible , and to ensure compliance prior thereto with the requirements concerning the identification of the deceased ... and of the time , location and cause of death ... ”

Judge PERSON issued a separate opinion in which he agreed that the impugned provisions were in conformity with the LAW but held a different view as to how they should be interpreted . The opinion stated as follows :

“ ... if the relevant law - enforcement agencies find , as a result of a preliminary investigation , that a terrorist act has been committed and that a given person was involved , but the criminal proceedings against that person ... are discontinued on account of his or her death following interception of the terrorist act , and if they then conclude that the decision to return the body to the family for burial is capable of threatening public order and peace and the health , morals , rights , lawful interests and safety of others , they are entitled to take a decision refusing to hand over the body and applying special arrangements for burial .

At the same time , in the event of a refusal to return the body of an individual whose death occurred as the result of the interception of a terrorist act committed by him , the authorities competent to take a decision concerning the burial must secure compliance with all the requirements concerning the establishment of the deceased ’s identity , the time and place of death , the cause of death , the place of burial and the data necessary for the proper identification of the grave ( a given location and number ) . The burial must take place with the participation of the relatives , in accordance with custom and tradition and with humanitarian respect for the dead . The administrative authorities of a ORG governed by the rule of law must respect the cultural values of a multi - ethnic society , transmitted from generation to generation . ... ”

Judge PERSON issued a dissenting opinion in which he described the legislation in question as incompatible with the LAW . In particular , he noted :

“ ... The impugned norms banning the return of the deceased ’s bodies to their relatives and providing for their anonymous burial are , in our view , absolutely immoral and reflect the most uncivilised , barbaric and base views of previous generations ...

The right of every person to be buried in a dignified manner in accordance with the traditions and customs of his family hardly requires special justification or even to be secured in written form in law . This right is clearly self - evident and stems from human nature as , perhaps , no other natural right . Equally natural and uncontested is the right of every person to conduct the burial of a person who is related and dear to them , to have an opportunity to perform one ’s moral duty and display one ’s human qualities , to bid farewell , to grieve , mourn and commemorate the deceased , however he may be regarded by society and the state , to have the right to a grave , which in all civilisations represents a sacred value and the symbol of memory . ... ”

After ORG judgment of DATE the domestic courts apparently changed their approach and agreed to review the formal lawfulness of the decisions of CARDINAL - DATE and DATE .

CARDINAL applicants ( nos . CARDINAL , DATE and DATE ) were able to obtain a copy of the decisions of CARDINAL - DATE concerning their deceased relatives , but did not pursue any proceedings in this connection or in connection with the decision of CARDINAL DATE .

CARDINAL applicants ( nos . CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE ) did not claim or receive a copy of the decisions of CARDINAL - DATE and did not institute proceedings in connection with any of the decisions in this case .

The remaining applicants , with the exception of CARDINAL ( nos . CARDINAL , DATE and CARDINAL ) obtained a copy of the decisions of CARDINAL - DATE concerning their relatives and brought court proceedings to contest them .

CARDINAL applicants ( nos . CARDINAL , DATE , DATE , DATE , DATE , CARDINAL and DATE ; see table CARDINAL in the annex ) , after a few sets of proceedings , obtained a favourable judgment , issued at final instance by ORG , which quashed both the decisions of DATE and the decision of CARDINAL DATE as unlawful . In respect of the decisions of CARDINAL - DATE , the court noted that these decisions had failed to take account of the recent amendments to LAW ( see paragraph CARDINAL below ) and remitted the case to the investigating authority for fresh examination . The decision of CARDINAL DATE was quashed in so far as it relied on the decisions of CARDINAL DATE and also because it had not been taken by a competent official . According to the applicants , these judgments remained without enforcement .

It appears that the domestic courts subsequently changed their position in connection with the requirement to take account of the amendments to LAW and began quashing the decisions by way of supervisory review ( see paragraph CARDINAL below ) .

CARDINAL applicants ( nos . CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE ; see table CARDINAL in the annex ) , after several sets of proceedings , obtained a favourable judgment , issued at final instance by ORG . These judgments concerned only the decisions of CARDINAL - DATE , and quashed them as unlawful . The court noted that the decisions failed to take account of the recent amendments to LAW and remitted the case to the investigating authority for fresh examination . These applicants did not apparently bring separate proceedings in respect of the decision of CARDINAL DATE . According to the applicants , the judgments remained without enforcement .

According to the information submitted by the Government in connection with the proceedings brought by the thirteenth applicant , a fresh examination of the case in the lower courts resulted in a final decision of DATE upholding the decision of CARDINAL - DATE in full .

In the domestic proceedings CARDINAL applicants ( nos . CARDINAL , DATE and DATE ; see table CARDINAL in the annex ) were expressly denied a copy of the decisions of CARDINAL DATE concerning their deceased relatives and , as a result , the competent courts were unable to review the lawfulness of the decisions of CARDINAL - DATE and DATE . ORG specifically stated in their respective judgments that the investigating authority had unlawfully refused to furnish the applicants and the courts with a copy of the decisions of CARDINAL - DATE and to provide access to the relevant case - file materials in respect of these applicants’ deceased family members . In their submissions the respondent Government explained that the evidence collected by the investigation in respect of the deceased family members of the applicants in question had also been used in the criminal proceedings against the surviving participants in the attack , and that the refusal in question had been motivated by the need to preserve the integrity of these criminal proceedings .

CARDINAL applicants ( nos . CARDINAL and DATE ; see table CARDINAL in the annex ) obtained a copy of the decisions of CARDINAL - DATE in respect of their deceased relatives and unsuccessfully contested them in court . ORG rejected their appeals and upheld the decisions as lawful . These applicants were subsequently successful in obtaining a favourable judgment from the same court , declaring the decision of CARDINAL DATE unlawful because it had not been taken by a competent official .

The CARDINAL applicant , PERSON obtained a copy of the decisions of CARDINAL - DATE in respect of her brother PERSON and her husband Mr NORP PERSON and unsuccessfully contested them in court . By final judgments of CARDINAL DATE and DATE ORG rejected her appeals in respect of her brother and husband respectively . It does not appear that she brought any court proceedings in respect of the decision of DATE .

The Government argued that the applicants could have obtained copies of the decisions of CARDINAL - CARDINAL DATE and relevant case - file documents whenever they wished .

The CARDINAL applicant indicated that only some of the applicants had been provided with such access .

According to the applicants who took part in the identification of the bodies , for DATE following the events of CARDINAL and DATE the corpses were kept in the town morgue and other locations , in wholly unsatisfactory conditions . In particular , the bodies gave off an intense smell owing to the lack of proper refrigeration and were chaotically piled on top of each other .

On an unspecified date PERSON , apparently a relative of the thirtieth applicant , complained in writing that the bodies had been piled up and stored at street temperature , noting that some of the corpses were decomposing and giving off an intense putrid smell . On an unspecified date PERSON , the TIME applicant , stated that she had seen the bodies on DATE after the events in question and that some of them were decomposing and contained worms . Mr PERSON , the husband of DATE applicant , said that when he had taken part in the identification procedure on DATE , the bodies had been naked and piled on top of each other . Similar written observations were made by PERSON , the fifth applicant ’s husband , and PERSON , the first applicant .

The applicants produced a video recording in support of their submissions , apparently filmed inside refrigerator wagons and confirming that the bodies were naked and that some of them were piled on top of one another .

In response to an enquiry by the ORG dated DATE , the Government submitted that the bodies of those who had attacked the town had been kept at “ premises specifically designed for the long - term storage of corpses and containing all the necessary equipment ” .

NORP In response to a letter from the applicants requesting an explanation for the appalling storage conditions , ORG stated in a letter of DATE that until a procedural decision in respect of the corpses had been taken they had been kept in specially equipped rooms , in refrigerated chambers set to the appropriate temperature . The authorities did not disclose the locality where the bodies were stored .

In their observations on admissibility of CARDINAL DATE , the ORG explained that following the events the corpses had initially been sent to the GPE morgue . They had then been stripped and the clothes sent for forensic expert examination . Thereafter all the corpses had been placed in CARDINAL refrigerated wagons , equipped with all necessary storage facilities , and sent to the town of GPE - on - Don for genetic examination . The Government also acknowledged that immediately after the attack no facilities had been available to keep the bodies and that this was probably what had been filmed in the recording submitted by the applicants .

There is no information in the ORG submissions which could confirm the participation of CARDINAL applicants , CARDINAL . CARDINAL , CARDINAL , DATE and DATE , in the relevant identification procedure .

CARDINAL applicants ( nos . CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , CARDINAL , DATE , DATE and DATE ) did not participate in the identification procedure in person because the relevant corpses were identified by someone else .

The remaining CARDINAL applicants ( nos . CARDINAL , CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE ) submitted hand - written statements confirming their personal participation in the identification procedure ( see table CARDINAL in the annex ) .

According to the applicants , they had access to the bodies both in the GPE town morgue and in CARDINAL refrigerator wagons parked on a plot of land belonging to ORG . Provision of access to the bodies was random , as not everyone who wanted to take part in the identification process was admitted . In some cases the provision of access was not properly documented .

Since the provision of access was limited , the relevant facilities were usually surrounded by crowds of relatives of the deceased .

The Government partly disputed the applicants’ submissions . They referred to the protocols of identification , confirming that all CARDINAL applicants listed in paragraph CARDINAL and the QUANTITY applicant , PERSON , had taken part in the identification . They contested the personal participation in the identification procedure of the ninth ( Mrs PERSON ) , the seventeenth to the twentieth applicants ( Mr Betal Muradinovich Kerefov , Mr PERSON , PERSON and PERSON ) and the DATE applicant ( Mr Karalbi PERSON ) . They confirmed the participation of the remaining applicants listed in paragraph CARDINAL above .

In the Government ’s submissions all corpses had been initially held in the GPE morgue . CARDINAL the applicants examined the corpses and the clothing . From DATE the bodies were placed in CARDINAL refrigerator wagons . On DATE the wagons were moved to the town of GPE - on - Don for molecular genetic examinations and on DATE all of the bodies were cremated . CARDINAL and DATE the person in charge of the identification procedure was the head of the investigation group , investigator PERSON From DATE he was replaced by investigator S.

According to the ORG ’s most recent submissions , the overall number of human casualties as a result of the events of CARDINAL DATE was QUANTITY civilians , QUANTITY police and law - enforcement officers and CARDINAL participants in the attack .

The Interment and Burial Act ( no . CARDINAL-FZ , dated DATE ) contains the following provisions :

“ The present ORG defines interment as the ritual actions of burying a person ’s body ( or its remains ) after his or her death in accordance with customs and traditions which are not contrary to sanitary or other requirements . The interment may be carried out by way of placing the body ( or its remains ) in the earth ( burial in a grave or in a vault ) , in fire ( cremation with subsequent burial of the urn containing the ashes ) , in water ( burial at sea ) . ... ”

“ CARDINAL . The locations of interment are specially designated [ in accordance with relevant rules ] areas with ... cemeteries for burial of bodies ( remains ) of the dead , walls of sorrow for the storage of urns containing the deceased ’s ashes ... , crematoriums ... as well as other buildings ... designed for carrying out burials of the dead . ... ”

“ CARDINAL . The statement of wishes of a person concerning the dignified treatment of his or her body after death ( the will of the deceased ) is a wish expressed in oral form in the presence of witnesses or in writing :

about consent or lack of consent to undergo an autopsy ;

about consent or lack of consent to have parts or tissues of the body removed ;

to be buried in a specific location , in accordance with a specific set of customs and traditions , next to specific people who died previously ;

to be cremated ;

entrusting the fulfilment of these wishes to a specific person .

Actions in respect of the dignified treatment of the body of a dead person should be carried out in accordance with [ his / her ] wishes , unless there are circumstances that render impossible the fulfilment thereof or if the [ national ] legislation provides for different rules .

Where a deceased made no statement of wishes , the right to authorise the actions specified in part CARDINAL of this section shall belong to a spouse , close family members ( children , parents , adopted children and adoptive parents , brothers and sisters , grandchildren and grandparents ) , other relatives or the legal representative of the dead , and in the absence of such persons , other persons who have assumed responsibility for burying the dead person . ”

“ The executors of a deceased person ’s statement of wishes shall be persons as nominated in the statement , if they agree to act accordingly . Where there is no specific indication regarding the executors of the statement of wishes or if the nominated persons do not agree to act accordingly , the directions in the statement shall be executed by the surviving spouse , close family members or other relatives or legal representatives of the deceased . In the event of a reasoned refusal by the nominated persons to execute the directions of the deceased ’s statement of wishes , he or she may be buried by another person who has agreed to assume this obligation , or by a specialised funeral service . ”

“ CARDINAL . On the territory of GPE every human being shall be guaranteed that after his or her death interment will be carried out regard being had to his or her wishes , with the provision for free of a plot of land for burial of a body ( remains ) or ashes in accordance with the present LAW ... ”

“ A spouse , close family members , other relatives , legal representatives of a deceased person or another person who has assumed the obligation to bury the deceased , shall enjoy the following guarantees :

( CARDINAL ) the issuance of documents necessary for interment of a deceased within DATE of the cause of death being established ; in cases where there were reasons to place the deceased in a mortuary for an autopsy , the delivery of the body of the deceased at the request of a spouse , close family members , other relatives , legal representative or another person who has assumed the obligation to bury the deceased can not be delayed for DATE from the time when the cause of death is established ; ... ”

Section CARDINAL of NORP Federation Law no . CARDINAL ( the Suppression of Terrorism Act ) defines terrorism as follows :

“ ... violence or the threat of its use against physical persons or organisations , and also destruction of ( or damage to ) or the threat of destruction of ( or damage to ) property and other material objects which creates a danger for people ’s lives , causes significant loss of property or entails other socially dangerous consequences , perpetrated with the aim of undermining public safety , intimidating the population or exerting pressure on ORG bodies to take decisions favourable to terrorists or to satisfy their unlawful property and/or other interests ; an attempt on the life of a ORG or public figure , committed with the aim of halting his or her ORG or other political activity or in revenge for such activity ; or an attack on a representative of a foreign ORG or an official of an international organisation who is under international protection , or on the official LOC or means of transport of persons under international protection , if this act is committed with the aim of provoking war or of straining international relations . ”

Terrorist activity within the meaning of the Act encompasses :

“ ( CARDINAL ) NORP organisation , planning , preparation and commission of a terrorist act ;

( CARDINAL ) incitement to commit a terrorist act or violence against physical persons or organisations , or to destroy material objects for terrorist purposes ;

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

( CARDINAL ) NORP recruitment , arming , training and deployment of terrorists ;

( CARDINAL ) NORP intentional financing of a terrorist organisation or terrorist group or other assistance provided thereto . ”

DATE . Section CARDINAL defines a terrorist act as :

“ ... the direct commission of a crime of a terrorist nature in the form of an explosion , an act of arson , the use or threat of the use of nuclear explosive devices or of radioactive , chemical , biological , explosive , toxic , or strong - acting poisonous substances ; destruction of , damage to or seizure of means of transport or of other objects ; attempts on the life of ORG or public figures or of representatives of national , ethnic , religious or other population groups ; seizure of hostages or abduction of persons ; causing of danger to the life , health or property of an indefinite number of persons by creating the conditions for accidents or disasters of a technogenic character or a real threat to cause such danger ; the spreading of threats in any form or by any means ; other actions that endanger people ’s lives , cause significant loss of property or entail other socially dangerous consequences . ”

In the same section a terrorist is defined as :

“ ... a person who takes part in carrying out terrorist activity in any form . ”

On DATE a terrorist attack took place in ORG in the city of GPE , resulting in a hostage incident which produced heavy casualties , including the death of CARDINAL hostages ( see GPE and Others v. GPE , nos . PERSON and PERSON , § § PERCENT , ORG DATE ( extracts ) ) .

Shortly after the attack , on DATE , GPE enacted changes to LAW by adding section CARDINAL(CARDINAL ) , which reads as follows :

“ [ The ] interment of terrorists who die as a result of the interception of a terrorist act shall be carried out in accordance with the procedure established by the Government of GPE . Their bodies shall not be handed over for burial and the place of their burial shall remain undisclosed . ”

On the same date GPE also enacted changes ( FZ - no . CARDINAL ) to the Interment and Burial Act by adding section CARDINAL ) , which states :

“ Persons against whom a criminal investigation concerning their terrorist activities has been closed on account of their death following interception of the said terrorist act shall be interred in accordance with the procedure established by the Government of GPE . Their bodies shall not be handed over for burial and the place of their burial shall not be disclosed . ”

Decree no . CARDINAL of the Government of GPE , adopted in accordance with section CARDINAL(CARDINAL ) of LAW , defines the procedure for the interment of persons whose death was caused by the interception of terrorist acts conducted by them :

“ ... CARDINAL . Interment of [ these ] persons shall take place in the locality where death occurred and shall be carried out by agencies specialising in funeral arrangements , set up by organs of the executive branch of the subjects of GPE or by organs of local government ...

Services provided by the specialist funeral agency in connection with the interment of [ these ] persons shall include : processing of documents necessary for interment ; clothing of the body ; provision of a grave ; transfer of the body ( remains ) to the place of burial ( cremation ) ; burial .

The transfer of the body ( remains ) to the place of burial ( cremation ) by rail or air shall be carried out on the basis of a transfer permit issued under an established procedure .

The place of burial shall be determined with reference to the limitations laid down by the Interment and Burial Act .

For the purposes of the burial the official conducting the preliminary investigation shall send the necessary documents to the specialist funeral agency , including a copy of the decision to close the criminal case and the criminal investigation with regard to [ these ] persons ; he or she shall also send a statement confirming the death to the civilian registry office in the person ’s last place of permanent residence .

The relatives of the persons [ concerned ] shall be notified by the official conducting the preliminary investigation of the location of the registry office from which they can obtain a death certificate .

At the discretion of the official conducting the preliminary investigation , the relatives of [ these ] persons may be provided with copies of the medical documents concerning the death , produced by a medical organisation , and the report on the autopsy ( if conducted ) ; personal belongings shall also be returned if they are not subject to confiscation .

NORP The specialist funeral agency shall produce a report on the completed burial , which shall be sent to the official conducting the preliminary investigation ; the document shall become part of the criminal case file . ”

On DATE ORG of GPE examined a complaint lodged by CARDINAL individuals challenging the constitutionality of LAW part CARDINAL sub - part CARDINAL ( FAC for a decision refusing to institute or to discontinue criminal proceedings ) and LAW part CARDINAL ( Discontinuance of criminal proceedings in a court hearing ) of LAW . The court concluded that the above - mentioned statutory provisions were unconstitutional , in so far as they provided for the possibility of terminating a criminal case owing to the death of a suspect ( or an accused person ) without obtaining the consent of that person ’s close relatives . The court noted , in particular , as follows :

“ ... respect for fundamental procedural guarantees of individual rights , including the presumption of innocence , must be secured also in resolving the question concerning the termination of a criminal case with reference to non - rehabilitating circumstances . In taking their decision to refuse the institution of a criminal case or to terminate the criminal case at the pre - trial stages of the criminal proceedings , the competent bodies should take it as a point of departure that persons in respect of whom the criminal proceedings have been discontinued [ who were not pronounced guilty of an offence ] can not be viewed as guilty – in the constitutional sense these persons can only be regarded as having been involved in criminal proceedings at the said stage owing to the relevant suspicions or accusations ...

At the same time , by discontinuing a criminal case owing to the death of a suspect ( or an accused person ) [ the authority ] also stops the process of proving his or her guilt , but in so doing the accusation or suspicion is not lifted , quite the contrary : in reality [ the authority ] reaches a conclusion as to the commission of the criminal act by ... a specific person and the impossibility of criminal prosecution owing to the said person ’s death . By this logic , the person in question , without the adoption or entry into force of any verdict , is declared guilty , and this constitutes a breach by the ORG of its duty to secure the judicial protection of that person ’s honour , dignity and good name protected by [ various provisions of ] ... the LAW , and as regards the persons whose interests may be affected by this decision – it constitutes a breach of their right of access to a court ...

... [ in other words , ] the termination of a criminal case with reference to nonrehabilitating circumstances in general is possible only if the rights of the participants in the criminal proceedings are respected , which means , in particular , that there is a need to secure the consent of the suspect ( or the accused person ) to take such a decision ] ...

... If , however , the person in question objects to [ such a decision ] , he must be entitled to have the case against him proceed to the stage of its examination by the trial court ...

[ The court , having analysed the applicable domestic provisions , concludes that ] LAW did not provide that [ the relatives of the deceased person in respect of whom the criminal case was discontinued ] had any rights which would allow them to protect the rights of their deceased relative who was formerly accused . Since the interested persons , and primarily the close relatives of the deceased , are not permitted to take part in the proceedings , the [ relevant ] procedural decisions ... are taken by an investigator or a court – without participation of the defence ...

Such limitations do not have an objective or reasonable justification and entail a breach of [ the constitutional rights of the persons in question ] ...

[ The court further decides that ] the protection of the rights and legal interests of the close relatives of the deceased person ... aimed at [ securing ] his or her rehabilitation should take place through the provision to them of the necessary legal status and the resulting legal rights within the framework of the criminal proceedings ...

[ The court concludes that the rights provided for by LAW were insufficient to guarantee an adequate level of judicial protection to the interested persons ] ...

[ Thus , in cases where ] the close relatives object to the discontinuance of the proceedings owing to the death of the formerly suspected or accused person , the competent investigative body or the court should proceed with the examination of the case . At the same time , the interested persons should enjoy the same rights as the deceased person [ himself or herself ] would have enjoyed ... ”

Article CARDINAL ( “ Murder ” ) of LAW , as in force at the relevant time , provides :

“ CARDINAL . Murder , that is the intentional infliction of death on another person , shall be punishable by deprivation of liberty for a term of DATE . ”

DATE . Article CARDINAL ( “ Terrorism ” ) of LAW , as in force before the entry into force on DATE of ORG no . CARDINAL of DATE , provides :

“ CARDINAL . Terrorism , that is the commission of an explosion , arson or other action , creating a danger for people ’s lives , or causing considerable pecuniary damage or other socially dangerous consequences , if such actions were committed with the aim of undermining public safety , threatening the population or influencing decision - making by the authorities , or the threat of committing such actions with the same aims , shall be punishable by deprivation of liberty for a term of DATE ... ”

The same Federal Law of DATE renamed and amended LAW of LAW , which is now entitled “ NORP act ” and provides :

“ CARDINAL . NORP The commission of an explosion , arson or other action , creating public fear and a danger for people ’s lives , causing considerable pecuniary damage or other grievous consequences , with the aim of exerting pressure on decision - making by the authorities or international organisations , or the threat of committing such actions with the same aims shall be punishable by deprivation of liberty for a term of DATE . ”

DATE defines close relatives as spouses , parents , children , adoptive parents , adopted children , brothers and sisters , grandparents and grandchildren .

Part CARDINAL of LAW provides :

“ ... a court , a prosecutor and an investigator shall be obliged to inform a suspect , an accused , a victim , a civil claimant and other participants in criminal proceedings of their respective rights , duties and liability and to provide them with the possibility of enforcing such rights . ”

Articles DATE of the Code of Criminal Procedure and LAW of LAW of GPE provide that incidents resulting in the death of a person are cases of public prosecution which are to be investigated and prosecuted irrespective of the will of the victim of the crime . In all circumstances displaying signs of the commission of a crime the relevant officials are to take the measures set out in LAW aimed at an investigation into the event and the identification of the person or persons responsible for committing the crime in question .

Article CARDINAL of the Code describes the status of a victim in the criminal proceedings :

“ The victim , his legal representative and ( or ) legal counsel shall have the right to take part in the criminal prosecution of the accused ... ”

Article CARDINAL of the Code lists possible grounds for a decision refusing to institute a criminal case or discontinuing the proceedings :

“ ( CARDINAL ) . A criminal case can not be instituted and an instituted criminal case should be discontinued on CARDINAL of the following grounds :

( CARDINAL ) the death of an accused or a suspect , except for cases where the continuation of the proceedings is necessary for rehabilitation of the deceased person . ... ”

DATE Code also states :

“ CARDINAL . Criminal prosecution in respect of a suspect or an accused shall be discontinued with reference to CARDINAL of the following grounds :

( CARDINAL ) discontinuance of a criminal case with reference to [ CARDINAL of the grounds mentioned in part CARDINAL of Article CARDINAL , including sub - part CARDINAL ] ... ”

Part DATE lists the situations in which it is necessary for the relevant official to obtain the consent of a suspect or an accused to discontinue criminal prosecution . There is no need to obtain anyone ’s consent in the event of that person ’s death .

DATE of the Code defines the victim as a “ physical person who has sustained physical , pecuniary or non - pecuniary damage ” as a result of the criminal offence , the decision on recognising someone as a victim being taken by an investigator or a court . It further states that :

“ ... ( CARDINAL ) The victim shall be entitled :

( CARDINAL ) to submit evidence ;

( CARDINAL ) to make challenges and motions ;

( CARDINAL) to have a representative ;

( CARDINAL ) to take part , with leave from an [ investigator ] in investigative actions which take place at his or her request ... ;

( CARDINAL ) upon termination of the preliminary investigation , to study all of the materials of the criminal case ... ;

( CARDINAL ) to receive copies of decisions instituting a criminal case , recognising him or her as a victim or refusing to do so , on discontinuance of a criminal case ... ;

( CARDINAL ) to avail himself or herself of other rights set out in this LAW . ”

Part CARDINAL of this provision states :

“ In criminal cases concerning crimes which resulted in the death of a person , the rights of the victim as set out in the present provision shall be transferred to CARDINAL of his or her close relatives . ”

DATE of the PERSON states :

“ CARDINAL . A victim ... may be represented by counsel ...

Personal participation in a criminal case by the victim ... shall not preclude him or her from enjoying the right to be represented [ by counsel in that criminal case ] . ”

Article CARDINAL of the Code provides for the possibility of appeal against the decisions of various authorities , in accordance with the procedure set out in the Code and particularly in Articles CARDINAL - CARDINAL thereof :

“ The actions ( or inactions ) and decisions of the body of inquiry , the inquiring officer , the investigator , the public prosecutor or the court shall be amenable to appeal in accordance with the procedure established in the present Code , by the participants in the criminal court proceedings and by other persons in so far as the procedural actions in question and the procedural decisions adopted affect their interests . ”

“ CARDINAL . NORP The public prosecutor shall consider the complaint within DATE of the date of its receipt . In exceptional cases , where it is necessary to request that additional materials be supplied or other measures be taken for checking the complaint , it shall be admissible to consider it within a period of DATE ; the applicant shall be duly informed .

Following consideration of the complaint , the public prosecutor shall take a decision allowing it in whole or in part or rejecting it .

NORP The applicant shall be immediately notified of the decision taken on the complaint and of the further procedure for lodging an appeal against it .

NORP In the cases stipulated by the present Code the inquiring officer , the investigator or the public prosecutor shall be entitled to lodge an appeal with a higher - ranking prosecutor against the actions ( inactions ) and decisions of the public prosecutor . ”

“ CARDINAL . Decisions by the inquiring officer , the investigator and the public prosecutor concerning a refusal to institute a criminal case or the termination of the criminal case , and other decisions and actions ( or lack of action ) on their part which are liable to inflict damage on the constitutional rights and freedoms of the participants in the criminal court proceedings or interfere with ORG access to the administration of justice , may be appealed against before the district court at the place where the preliminary inquiry is conducted .

NORP The complaint may be lodged with the court by the applicant or his or her defence counsel , legal representative or representative , either directly or through the inquiring officer , investigator or public prosecutor .

The judge shall verify the legality and well - foundedness of the actions ( or lack of action ) and the decisions taken by the inquiring officer , the investigator and the public prosecutor , not DATE after the date of the lodging of the complaint , at a court session in the presence of the applicant and his or her defence counsel , legal representative or representative , if they are taking part in the criminal case , other persons whose interests are directly affected by the action ( or lack of action ) or by the decision against which the appeal has been lodged , and the public prosecutor . Failure to attend by persons who have been duly informed of the time of consideration of the complaint and have not insisted that they be present , shall not be seen as an obstacle to consideration of the complaint by the court . Complaints shall be considered by the court at a public hearing unless stipulated otherwise . ...

At the start of the court session , the judge shall announce what complaint is being considered , introduce himself to the persons attending the court session and explain their rights and responsibilities . The applicant , if he is taking part in the court session , shall then adduce the grounds for the complaint , following which evidence shall be heard from other persons in attendance . The applicant shall have the right to respond .

After considering the complaint , the judge shall adopt one of the following decisions :

( CARDINAL ) a decision finding the action ( or lack of action ) or the decision of the corresponding official to be illegal or ill - founded and finding him or her liable to provide redress for the violation ;

( CARDINAL ) a decision rejecting the complaint .

Copies of the judge ’s decision shall be sent to the applicant and to the public prosecutor .

The lodging of a complaint shall not suspend performance of the action and the decision appealed against unless the body of inquiry , the inquiring officer , the investigator , the public prosecutor or the judge deems it necessary . ”

“ CARDINAL . Complaints and ORG appeals against judgments , rulings and resolutions of the courts of first instance and appeal courts , as well as complaints and ORG appeals against court decisions taken in the course of the pre - trial proceedings in the criminal case , shall be lodged in accordance with the arrangements laid down in ... [ other provisions of the Code ] .

Complaints and ORG appeals against court decisions which have acquired legal force shall be lodged in accordance with the arrangements laid down by [ other provisions of the Code ] . ”

Article CARDINAL of the Code establishes the arrangements governing appeals against decisions not to institute criminal proceedings :

“ CARDINAL . If there are no grounds for the institution of criminal proceedings the public prosecutor , the investigator , the body of inquiry or the inquiring officer shall take a decision not to institute criminal proceedings . A decision not to institute criminal proceedings on the ground set out in point CARDINAL of the first paragraph of LAW shall be admissible only in respect of the individual concerned .

NORP When taking the decision not to institute criminal proceedings after checking the available information about the crime based on the suspicion of its perpetration by the person or persons concerned , the public prosecutor , the investigator or the body of inquiry shall be obliged to consider the possibility of instituting criminal proceedings against the person who reported or spread false information about the crime on a charge of making deliberately false accusations .

A decision not to institute criminal proceedings following verification of information concerning a crime that has been publicised in the mass media must be made public .

A copy of the decision not to institute criminal proceedings shall be sent to the applicant and to the public prosecutor within TIME of the time the decision was given . In this case , the applicant shall be informed of his or her right to appeal against the decision and of the procedure for lodging an appeal .

A decision not to institute criminal proceedings may be appealed against to the prosecutor or the court in accordance with the procedure laid down in ORG CARDINAL and CARDINAL of the present Code .

If the prosecutor finds a decision not to open criminal proceedings to be unlawful or unfounded , he or she shall revoke the decision not to open the case and shall institute criminal proceedings in the manner established by the present article or return the materials for additional verification .

If the judge finds the decision not to institute criminal proceedings to be unlawful or unfounded , he or she shall adopt the corresponding decision , forward it for execution to the public prosecutor and notify the applicant . ”

By ORG no . CARDINAL of DATE “ On the practice of application by the courts of the legislation governing the participation of a victim in criminal proceedings ” ORG summarised and explained the existing practice in relation to the status of the victim in criminal proceedings under the old DATE Code of Criminal Procedure :

“ ... CARDINAL . ... is recognised as a victim an individual who has sustained non - pecuniary , physical or pecuniary damage directly . The recognition of such an individual as the victim does not depend on his age , physical or psychological condition . ...

Since ... in cases involving crimes which resulted in the death of a victim , the [ relevant ] rights [ are transferred ] to [ his or her ] close relatives , CARDINAL of whom , regard being had to the agreement between them , shall be recognised as the victim . If certain persons outside the circle of the close relatives of the deceased insist on being recognised as victims , they may also be recognised as such ... ”

By ORG no . CARDINAL of DATE “ On the practice of application by the courts of the norms governing the participation of a victim in criminal proceedings ” , which replaced in full ORG no . CARDINAL of DATE , ORG summarised and explained the existing practice in relation to the status of the victim in criminal proceedings under the new CARDINAL Code of Criminal Procedure :

“ ... CARDINAL . In accordance with the law , a victim , being a physical person who has suffered physical , pecuniary or non - pecuniary damage ... has in the criminal proceedings his or her own interests , for the protection of which he or she , as a participant in the criminal proceedings on the side of the prosecution , enjoys the rights of a party .

A person who has suffered as a result of a criminal offence shall be recognised as a victim irrespective of his or her nationality , age , physical or psychological condition or other aspects of his or her personality , and irrespective of whether anyone has been identified as being involved in the commission of that offence .

The courts should also take into account any damage inflicted on the victim by the offence , or by a criminally prohibited act committed in a state of insanity . ...

In accordance with part CARDINAL of LAW a person who sustained damage [ from an offence ] shall acquire the rights and obligations set out in the legislation governing criminal procedure as of the time of adoption by a [ competent ] investigator ... or a court of the decision recognising that person as a victim . At the same time , it should be borne in mind that the legal status of that person as a victim is determined on the basis of his or her factual situation ... [ thus , this procedural decision does nothing but reflect the existing factual situation and does not determine it ] .

The person in question can obtain recognition as a victim by making a relevant application ... The refusal to recognise someone as a victim , as well as the inaction of the [ relevant official ] leading to a failure to recognise that person as a victim can be appealed against in court by way of a pre - trial procedure in a criminal case set out in ORG CARDINAL and CARDINAL of LAW . ...

In criminal cases concerning crimes which resulted in the death of a person , the rights of a victim shall be transferred to CARDINAL of his or her close relatives ( part CARDINAL of LAW of LAW ) . By virtue of part CARDINAL of LAW the close relatives are spouses , parents , children , adoptive parents , adopted children , brothers and sisters , grandparents and grandchildren .

If the criminal offence affected the rights and legal interests of a few close relatives at the same time and they all insist on acquiring the rights of victims , these persons can also be recognised as victims . ...

The meaning of part CARDINAL of LAW is that representatives of the victim ... could be not only counsel , but also other persons ... capable of providing them with qualified legal assistance . ...

The courts must comply with the requirements of the law in that the victim , acting with the aim of using his ... powers as set out in the legislation on criminal procedure ... has the right to receive copies of the decision on the institution of a criminal case , recognition of his victim status ... on the discontinuance of a criminal case ... and copies of other procedural documents affecting his interests ( LAW ) . ...

On the basis of the principle of equality of the rights of the parties ( LAW ) a victim has the same rights as the defence to make challenges and applications , to submit evidence , to participate in its examination , to plead ...

The victim , his or her representative or legal representative at any stage of the criminal proceedings should be given an opportunity to inform the court about his or her position on the substance of the case and the arguments he or she deems necessary to justify that position . At the same time , the court should take into account the arguments of the victim in respect of the questions which affect his or her rights and legal interests , and to give them a reasoned assessment in taking the judicial decision . ...

With a view to creating the necessary conditions for the victim to carry out his procedural duties and to enforce his rights ... , the courts , where there are justified grounds , should take measures to assist the victim in collecting the evidence ( receipt of documents , lodging of requests for certificates , etc . ) .

The victim , his legal representative , representative ... shall have the right to take part in all court proceedings in the examined case for the protection of his or her rights and legal interests . In order to secure that right , the presiding judge should inform them of the date , time and place of the court proceedings . ... ”

The applicants submitted that no other NORP country had a law on its statute book similar to section CARDINAL(CARDINAL ) of the Interment and Burial Act .

They also submitted that a similar practice had existed de facto in GPE and been used at an administrative level without ever being codified in law . They referred to the judgment in the case of GPE and Others v. Minister of Defence & Others , DATE , no . HCJ CARDINAL , in which ORG of Justice condemned the practice . According to the applicants , in DATE the NORP authorities announced that they were putting an end to the practice of refusing to return the bodies of NORP , “ except in exceptional circumstances ” .

The applicants also referred to CARDINAL opinions of ORG issued under LAW in cases against GPE , GPE and GPE , in which the authorities had refused to inform the relatives of a prisoner under sentence of death of the date of execution , to return the body for burial or to disclose the place of burial ( no . CARDINAL , GPE v. GPE , DATE , paragraph CARDINAL ; no . CARDINAL , PERSON v. GPE , DATE , paragraph CARDINAL ; no . CARDINAL/CARDINAL , GPE v. GPE , DATE , paragraph CARDINAL ; no . CARDINAL/CARDINAL , ORG v. GPE , DATE , paragraph CARDINAL ; no . CARDINAL/CARDINAL , PERSON v. GPE , DATE , paragraph CARDINAL ; no . ORG , PERSON , DATE , paragraph CARDINAL ; no . CARDINAL/CARDINAL , GPE v. GPE , DATE , paragraph CARDINAL ) . In particular , in the case of ORG v. LANGUAGE ( no . ORG ) ORG ruled as follows :

“ CARDINAL The ORG has taken note of the author ’s claim that the authorities did not inform her about [ her ] husband ’s execution but continued to acknowledge her intercessions on his behalf following the execution . The ORG notes that the law then in force did not allow for a family of an individual under sentence of death to be informed either of the date of execution or the location of the burial site of the executed prisoner . The ORG understands the continued anguish and mental stress caused to the author , as the wife of a condemned prisoner , by the persisting uncertainty of the circumstances that led to his execution as well as the location of his gravesite . It recalls that the secrecy surrounding the date of execution and the place of burial , as well as the refusal to hand over the body for burial , have the effect of intimidating or punishing families by intentionally leaving them in a state of uncertainty and mental distress . The ORG considers that the authorities’ initial failure to notify the author of the execution of her husband and the failure to inform her of his burial place , amounts to inhuman treatment of the author , in violation of article CARDINAL of the LAW ” .

The applicants also relied on the judgment of ORG DATE in the case of GPE GPE ( ORG . H.R. , ( Ser . C ) No . CARDINAL ( DATE ) . In that case ORG agents attacked ORG in DATE , killing CARDINAL members of the N’djuka clan ( paragraph CARDINAL ( CARDINAL ) ) . The authorities also prevented the survivors from recovering the bodies . It was further reported that some of the corpses were cremated . The ORG gave a detailed account of the specific funeral rituals of the N’djuka , having noted that :

“ CARDINAL(CARDINAL ) . The N’djuka have specific rituals that must be precisely followed upon the death of a community member . A series of religious ceremonies must be performed , which require DATE to be completed ; these rituals demand the participation of more community members and the use of more resources than any other ceremonial event of NORP society .

CARDINAL ) . It is extremely important to have possession of the physical remains of the deceased , as the corpse must be treated in a specific manner during the N’djuka death rituals and must be placed in the burial ground of the appropriate descent group . Only those who have been deemed evil do not receive an honourable burial . Furthermore , in all Maroon societies , the idea of cremation is considered very offensive .

CARDINAL(CARDINAL ) . If the various death rituals are not performed according to N’djuka tradition , it is considered a moral transgression , which will not only anger the spirit of the individual who died , but may also offend other ancestors of the community . This leads to a number of ‘ spiritually - caused illnesses’ that become manifest as actual physical maladies and can potentially affect the entire natural lineage . The N’djuka understand that such illnesses are not cured on their own , but rather must be resolved through cultural and ceremonial means ; if not , the conditions will persist through generations . ”

ORG held in paragraph CARDINAL of its judgment that the applicants had suffered inhuman treatment , contrary to LAW , because :

“ ... CARDINAL of the greatest sources of suffering for the ORG members is that they do not know what has happened to the remains of their loved ones , and , as a result , they can not honor and bury them in accordance with fundamental norms of N’djuka culture . The ORG notes that it is understandable , then , that community members have been distressed by reports indicating that some of the corpses were burned ... ” .

As part of the just satisfaction award ( paragraph CARDINAL of the judgment ) ORG was ordered :

“ ... to recover promptly the remains of the PERSON community members killed during the DATE attack . If such remains are found by the ORG , it shall deliver them as soon as possible thereafter to the surviving community members so that the deceased may be honoured according to the rituals of N’djuka culture ” .


Violation of Art. 6-1 concerning the length of proceedings;Violation of Art. 6-1 and 6-3-d;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings

The applicant was born in DATE and lives in PERSON ( GPE ) .

On CARDINAL DATE ORG lodged a criminal complaint against a number of its employees , including the applicant , alleging suppression of documents , forgery and uttering , and fraud , offences which it claimed had caused it a loss of MONEY . It accused the employees concerned of having debited the account of ORG ( “ the ORG ” ) using CARDINAL cheques from a cheque book that had been produced in the railway company ’s name but never actually issued to it . On DATE the public prosecutor instituted proceedings against the applicant .

On DATE the applicant was summoned to appear before the investigating judge and was placed in pre - trial detention . On DATE he was released on bail , subject to court supervision entailing , among other things , a ban on leaving the country .

In a decision of CARDINAL DATE ORG of ORG committed some of the accused , including the applicant , for trial in ORG , composed of CARDINAL judges as is the rule for cases dealt with by courts of appeal at first instance .

The hearing , initially set down for DATE , was adjourned firstly until DATE because of a strike by members of ORG and subsequently until DATE because of the ill health of CARDINAL of the other defendants . On DATE the hearing was again adjourned , this time until DATE .

On DATE the applicant , who before joining the bank had been an officer in the merchant navy , applied to have the ban on his leaving the country lifted so that he could work in the navy again . He argued that he needed to be in gainful employment in order to support his wife and CARDINAL children and pointed out that the proceedings had been adjourned several times by the court itself . However , his application was refused by the public prosecutor and subsequently by ORG , ORG having earlier rejected a similar application .

The trial finally began on DATE – five years , DATE and DATE after ORG decision of DATE and DATE after the complaint had been lodged and the proceedings instituted . Hearings were held on CARDINAL , DATE , DATE , DATE and DATE . CARDINAL of the co - defendants requested the production in court of the back - up tape for the bank ’s computer ( but not the cheques in question ) . Counsel for the bank produced a declaration by the bank ’s information technology department attesting that the copies of the computer tapes in the file were authentic . The declaration was read out at the hearing without eliciting any reaction from the defendants . During the trial CARDINAL documents were read out and evidence was heard from CARDINAL witnesses .

ORG gave judgment on DATE . It convicted the applicant and sentenced him to DATE and CARDINAL months’ imprisonment , to be reduced by the period already spent in pre - trial detention , and ordered the confiscation and destruction of the CARDINAL cheques in question . Lastly , it ruled that if the applicant decided to appeal , the appeal would suspend the execution of the sentence .

The applicant appealed against the judgment to the appropriate court , namely ORG , sitting as a bench of CARDINAL judges . On DATE that court upheld the judgment delivered at first instance but reduced the sentence to DATE and CARDINAL months’ imprisonment .

During the trial the applicant had requested the production of certain extracts from the log file of the bank ’s computer and of the original cheques and had asked for a handwriting expert , PERSON , to be summoned and cross - examined in the presence of another handwriting expert .

ORG refused those requests on the following grounds :

“ The precision and authenticity of the extracts from the bank ’s central computer records , accompanied by declarations by senior executives of the bank , are beyond dispute , and the production of the extracts is unnecessary . Nor is there any need to summon and cross - examine PERSON , because he has drawn up a detailed report which was read out at the trial . Lastly , the photocopies of the relevant cheques , which none of the parties disputes are forged , satisfy the needs of the proceedings and production of the originals therefore serves no purpose . ”

ORG read out the items of evidence that had already been adduced at first instance and heard evidence from CARDINAL prosecution and CARDINAL defence witnesses .

It noted that , contrary to what the applicant had maintained , the connection between the cheques in question and the ORG ’s account could not have been established by members of the bank ’s information technology department , which was empowered only to process data from branches . It further observed that on the date of the offence , the applicant had been the only person to use the computer on which the offence had been committed . The handwriting expert had concluded that characteristics of the applicant ’s handwriting and signature were visible on the cheques . Lastly , ORG noted that the applicant was one of the very limited number of the bank ’s employees who knew the ORG ’s account number and the names of the ORG employees authorised to issue cheques .

The applicant appealed on points of law . On DATE ORG quashed the judgment appealed against in respect of the charges of suppressing documents and forgery and uttering , and remitted the case to ORG in respect of the charge of fraud only .

ORG held a hearing on DATE . The applicant again requested the production of extracts from the bank ’s log file and sought a declaration from counsel for the bank attesting that the photocopies of the cheques were authentic . ORG refused those requests . With regard to the first request , it ruled that it was impossible to recover the extracts from the bank ’s log file because the relevant tape reels had not been kept , and added that the authenticity of the documents in question was clear from other pieces of documentary evidence . It construed the second request as an attempt to establish whether the defendant had had an accomplice , whereas his guilt was apparent from other evidence . ORG also held that it had not been proved that the photocopies of the cheques had been falsified . It concluded that the defendant had committed the offence on the basis of a pre - defined plan , which he had intended to carry out several times in order to misappropriate funds from ORG .

On DATE ORG found the applicant guilty of fraud within the meaning of LAW , holding that the loss sustained by the bank had resulted from deception on the part of its employees and that the question whether the computer had been used or not was irrelevant . It sentenced him to DATE and CARDINAL months’ imprisonment ( to be reduced by DATE , the period already spent in pre - trial detention ) and ordered the destruction of the forged cheques .

On DATE ORG , on an appeal by the applicant , upheld ORG judgment .