I correctly predicted that there was a violation of human rights in GATSALOVA v. RUSSIA.

Information

  • Judgment date: 2021-04-20
  • Communication date: 2013-11-08
  • Application number(s): 41318/10
  • Country:   RUS
  • Relevant ECHR article(s): 3, 8, 8-1, 9, 9-1, 13
  • Conclusion:
    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
    Article 8-1 - Respect for family life
    Respect for private life)
  • Result: Violation
  • SEE FINAL JUDGMENT

JURI Prediction

  • Probability: 0.75726
  • Prediction: Violation
  • Consistent


Legend

 In line with the court's judgment
 In opposition to the court's judgment
Darker color: higher probability
: In line with the court's judgment  
: In opposition to the court's judgment

Communication text used for prediction

The applicant, Ms Zarema Akhmedovna Gatsalova, is a Russian national, who was born in 1981 and lives in the town of Nalchik.
She is represented before the Court by Ms V. Kogan, Mr R. Lemaitre, Mr A. Nikolayev, Mr A. Sakalov and Mr D. Itslayev, lawyers of Stichting Russian Justice Initiative, practising in Moscoz.
A.
The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows.
1.
Events of 13 and 14 October 2005 Early in the morning on 13 October 2005 the law-enforcement agencies of the town of Nalchik were attacked by a number of armed people, apparently local insurgents.
The ensuing fight between the Governmental forces and the insurgents lasted until 14 October 2005 and supposedly left several dozens of unidentified bodies.
The applicant refers to the death of her husband Timur Dzankhotovich Gatsalov, born on 7 October 1982, who participated in the attack on the side of the insurgents.
It appears that on 13 October 2005 the authorities instituted criminal proceedings no.
25/78-05 in connection with the events of 13-14 October 2005.
2.
The submissions in respect of the conditions of storage of the bodies According to those who took part in identification of the bodies, during several days following the events of 13 and 14 October 2005 the corpses were kept in the morgue and in a few other locations in wholly unsatisfactory conditions.
In particular, there was an intense smell owing to the lack of proper refrigeration and the bodies were chaotically piled on top of each other.
The applicant did not take part in the identification in question.
3.
The applicant’s initial requests to return the body filed to various officials and courts It appears that on several occasions the applicant requested various officials, including the prosecutors, to return the bodies of her husband for burial.
The requests either remained unanswered or were refused.
On 13 April 2006 the investigation authority terminated the proceedings in respect of the 95 deceased because of their deaths.
It appears that the deceased referred to by the applicant was among those concerned by this decision.
The Prosecutor General’s Office notified the applicant of the above decision on 14 April 2006.
It appears that no copy of the decision in question was attached to the notification.
It appears that on 22 June 2006 ninety five corpses of the presumed terrorists were cremated.
The cremation took place pursuant to the decision not to return the bodies of the deceased to their families dated 15 May 2006.
The authorities had apparently not notified the applicants of the decision of 15 May 2006.
The applicant contested the actions of the authorities in courts.
By judgment of 17 February 2009 the Nalchik Town Court of the Republic of Kabardino-Balkariya partly granted the claims of the applicant in respect of her husband.
In particular, the court quashed the decision dated 13 April 2006 to terminate criminal proceedings in respect of the applicant’s husband because of his death and the decision dated 15 May 2006 not to return the body to his family.
The court noted that the decision of 13 April 2006 had failed to take account of the new law on terrorism adopted on 6 March and 27 June 2006 and that therefore the decision of 15 May 2006 had been premature.
The court ordered the prosecution authorities to examine the relevant issues afresh.
The judgments were appealed against by both parties.
The Supreme Court of the Republic of Kabardino-Balkariya upheld the judgment on 21 April 2009.
By letters of 8 and 10 February 2010 the investigative authorities informed the applicant that she had no status in criminal proceedings and therefore had no right to be informed about it.
The eventual outcome of the proceedings is unclear.
B.
Relevant domestic law 1.
Legal definitions of terrorist activity and terrorism Section 3 of Law of the Russian Federation no.
130-FZ “On the struggle against terrorism” defines terrorism as: “violence or the threat of its use of physical persons or organisations, and also destruction of (damage to) or the threat of destruction of (damage to) property and other material objects that create danger to people’s lives, cause significant loss of property, or entail other socially dangerous consequences, perpetrated with the aim of violating public safety, intimidating the population, or exerting pressure on state bodies to take decisions favourable to the terrorists or to satisfy their unlawful property and (or) other interests; an attempt on the life of a state or public figure, committed with the aim of halting his state or other political activity or in revenge for such an activity; or an attack on a representative of a foreign state or on an official of international organisation who is under international protection, or on the official premises or means of transportation of persons under international protection, if this act is committed with the aim of provoking war or of complicating international relations.” Terrorist activity within the meaning of the said law encompasses: “1) organisation, planning, preparation and commission of a terrorist act; 2) incitement to a terrorist act, to violence against physical persons or organisations, or to the destruction of material objects for terrorist purposes; 3) organisation of an illegal armed formation, criminal association (criminal organisation), or organised group for the commission of a terrorist act, or participation therein; 4) recruitment, arming, training and use of terrorists; 5) intentional financing of a terrorist organisation or terrorist group or other assistance to it.” Section 3 defines terrorist act as: “the direct commission of a crime of a terrorist character 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 transportation or of other object; an attempt on the life of a state or public figure or of a representative of national, ethnic, religious, or other population groups; seizure of hostages or abduction of a person; creation of danger to the life, health or property of an indefinite number of persons by creating conditions for accidents or disasters of a technogenic character or a real threat to create such a 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 lead to other socially dangerous consequences.” By the same Section a terrorist is defined as: “a person who takes part in carrying out terrorist activity in any form.” 2.
Legislation governing the interment of terrorists On 26 October 2002 a terrorist attack took place in the Nord-Ost Theatre in the city of Moscow, resulting in a hostage incident with serious casualties, including the death of several dozens of hostages.
Shortly after the attack, on 11 December 2002 Russia passed changes to the Law “On the struggle against terrorism” by adding Section 16.1 stating that: “the interment of terrorists who die as a result of interception of a terrorist act is carried out in accordance with a procedure established by the Government of the Russian Federation.
Their bodies are not handed over for burial and the place of their burial remains undisclosed.” On the same date Russia also adopted changes (FZ - no.
170) in Law “On interment and burial matters” by adding Section 14.1.
It states that: “the interment of persons, against whom criminal investigation in connection with their terrorist activities has been closed because of their death, which took place as a result of interception of the said terrorist act, will take place in accordance with a procedure established by the Government of the Russian Federation.
Their bodies are not handed over for burial, and the place of their burial is not revealed.” Decree of the Government of the Russian Federation of 20 March 2003 no.
164 adopted in accordance with Section 16.1 of the Law “On the struggle against terrorism” defines the procedure for the internment of persons whose death was caused by the interception of terrorist acts carried out by them: “... 3.
Interment of [these] persons will take place at the location of the occurrence of death and will be carried out by special agencies on funeral matters created by organs of the executive branch of the subjects of the Russian Federation or by organs of the local government ... 4.
Services provided by the special agency on funeral matters in connection with the interment of [these] persons include: processing of documents necessary for interment; clothing of the body; provision of grave; transfer of body (remains) to the place of burial (cremation); burial.
The transfer of the body (remains) to the place of burial (cremation) by railroad or aviation transport is carried out with a transfer permission, provided by an established procedure.
Determination of the burial location is carried out with regard to limitations prescribed by Law ‘On interment and burial matters.’ 5.
To execute the burial an official carrying out a preliminary investigation sends to the relevant special agency on funeral matters necessary documents, including a copy of the decision to close the criminal case and the criminal investigation with regard to [these] persons, and to the civilian registry office in the last place of permanent residence of the person, a statement of death.
6.
The relatives of [these] persons are notified by an official conducting a preliminary investigation about the location of the registry office in which they can receive a certificate of death.
7.
At the decision of an official carrying out the preliminary investigation, the relatives of [these] persons can be presented with copies of the document about death, produced by a medical organisation, and the document of the autopsy (if conducted), and personal belongings are also returned if they are not subject to confiscation.
8.
The special agency on funeral matters produces document about the completed burial, which is sent to the official person who conducts the preliminary investigation, and the document becomes part of the criminal case.” COMPLAINTS 1.
The applicant complains under Articles 8 and 9 of the Convention that the State authorities unnecessarily interfered with her right to family and private life and freedom of religion by denying her access to the body of her killed relative for religious burial according to Islam traditions and customs.
2.
The applicant further complains that she has no effective remedy within the meaning of Article 13 of the Convention in respect of the allegedly unnecessary interference with her rights under Articles 8 and 9 of the Convention.
3.
In addition, she complains that the law applied in her case is deliberately discriminating against Muslims in breach of Article 9 taken in conjunction with Article 14 of the Convention.
4.
Under Article 3 of the Convention the applicant complains that she has suffered inhuman and degrading treatment by the authorities in that the latter refused to return the body of her husband, had an allegedly indifferent attitude towards her requests and failed properly to answer these requests.

Judgment

THIRD SECTION
CASE OF GATSALOVA v. RUSSIA
(Application no.
41318/10)

JUDGMENT

Art 8 ● Private and family life ● Unjustified refusal to return body of applicant’s deceased husband, after his participation in attack on law-enforcement authorities and subsequent death ● Art 13 (+ Art 8) ● No effective remedy

STRASBOURG
20 April 2021
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention.
It may be subject to editorial revision. In the case of Gatsalova v. Russia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Paul Lemmens, President,Dmitry Dedov,Georges Ravarani,María Elósegui,Darian Pavli,Anja Seibert-Fohr,Peeter Roosma, judges,and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no.
41318/10) 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 a Russian national, Ms Zarema Akhmedovna Gatsalova (“the applicant”), on 16 July 2010;
the decision to give notice to the Russian Government (“the Government”) of the complaints concerning the refusal to return the body of the applicant’s deceased husband and the lack of an effective domestic remedy in that regard, and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 23 March 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1.
The case concerns the Russian authorities’ refusal to return the body of the applicant’s deceased husband, who had allegedly participated in the attack on Nalchik in the Republic of Kabardino-Balkariya on 13 October 2005 and was killed shortly thereafter, and the lack of an effective domestic remedy in that regard. THE FACTS
2.
The applicant was born in 1981 and lives in Nalchik. She was represented by lawyers from Stichting Russian Justice Initiative, a non‐governmental organisation (NGO) based in Utrecht, the Netherlands, in collaboration with another NGO, Astreya. 3. The Government were represented by Mr G. Matyushkin, the former Representative of the Russian Federation to the European Court of Human Rights. 4. The facts of the case are for the most part identical to those described in the Court’s judgments in Sabanchiyeva and Others v. Russia (no. 38450/05, ECHR 2013 (extracts)), Arkhestov and Others v. Russia (no. 22089/07, 16 January 2014) and Zalov and Khakulova v. Russia (no. 7988/09, 16 January 2014), and may be summarised as follows. 5. The applicant submitted that she was the wife of Mr Timur Dzankhotovich Gatsalov, who was born on 7 October 1982 and who had participated in the attack on the law-enforcement authorities in the town of Nalchik on 13 October 2005 and died on the same date or shortly afterwards. 6. The events of 13 and 14 October 2005 were summarised by the Court in its judgment in Sabanchiyeva and Others (cited above, §§ 6-7). 7. According to the documents submitted by the applicant, the body of Mr Gatsalov was identified by his mother on 21 October 2005. On 18 January 2006 his identity was confirmed by the results of a DNA test ordered on 10 November 2005. 8. On an unknown date, the applicant was furnished with her husband’s death certificate, which indicated 13 October 2005 as the date of death and 10 November 2005 as the date of issue. 9. It appears that following the events described, on several occasions the applicant and the parents of her late husband requested various officials to return his body for burial. The requests either remained unanswered or were refused. 10. On 13 October 2005 the authorities instituted criminal proceedings no. 25/78-05 in connection with the attack in Nalchik. 11. The course of the investigation was summarised by the Court in Sabanchiyeva and Others (cited above, §§ 16-17). 12. The applicant did not have any procedural status in the criminal proceedings in case no. 25/78-05. 13. On 13 April 2006 the investigating authority terminated the criminal proceedings in respect of the ninety-five deceased on account of their deaths, having taken an individual decision in respect of each of them. 14. The decision of 13 April 2006 in respect of Mr Gatsalov stated that his body, together with the bodies of some of the other participants in the attack of 13 October 2005, had been located on 15 October 2005 in the courtyard of the Republican Department of the Federal Service for the Execution of Penalties at 2A Gazovaya Street, Nalchik. The investigators had found several Kalashnikov assault rifles, an IZH-79 gas pistol converted to fire 9 mm ammunition, multiple cartridges and spent casings, and other ammunition near the corpses. The subsequent expert report identified the cause of death as a gunshot wound to the chest which had damaged the fifth and seventh ribs, diaphragm and liver, leading to massive loss of blood and haemorrhagic and traumatic shock. 15. In view of the evidence collected, the investigation concluded that at around 9 a.m. on 13 October 2005 the deceased, acting in concert with other participants, had carried out a pre-planned and armed attack on the Republican Department of the Federal Service for the Execution of Penalties. The attack had resulted in the deaths of at least four persons and the wounding of nine others. 16. The Prosecutor General’s Office notified the mother of the deceased of the above decision on 14 April 2006, but no copies of the decision in question were attached to the notification. 17. On 22 June 2006 the bodies of ninety-five presumed terrorists were cremated. The cremations took place pursuant to a decision of 15 May 2006 not to return the bodies of the deceased to their families. In contrast to the individual decisions of 13 April 2006, the decision of 15 May 2006 referred to the deceased persons collectively. The text of the decision is reproduced, inter alia, in Sabanchiyeva and Others (cited above, § 27). 18. According to the applicant, neither she nor any other relatives of her late husband were notified of the decision of 15 May 2006 or of the cremation that had taken place on 22 June 2006. 19. It appears that initially the applicant did not attempt to challenge the decisions of 13 April and 15 May 2006. Attempts by the relatives of some of the other deceased to obtain judicial review of the respective decisions proved to be futile, as the courts refused to examine their arguments. 20. The relatives of some of the other deceased participants in the attack contested the legislation governing the interment of terrorists before the Constitutional Court. Their initial complaints were rejected as premature. Eventually, some of the complaints were accepted for examination. 21. On 28 June 2007 the Constitutional Court delivered a judgment (no. 8-P), in which, in essence, it rejected their complaints alleging that section 14(1) of the Interment and Burial Act and Decree no. 164 of the Government of the Russian Federation of 20 March 2003 were unconstitutional. The ruling stated, in particular, that the impugned legal provisions were, in the circumstances, necessary and justified. 22. The ruling further noted that applying 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 Articles 123 to 127 of the Code of Criminal Procedure provided for such a review. 23. In sum, the Constitutional Court upheld the impugned provisions as being in conformity with the Constitution 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. 24. The relevant extracts from the ruling of the Constitutional Court are reproduced, inter alia, in the Court’s judgment in Sabanchiyeva and Others (cited above, §§ 33-37). 25. After the Constitutional Court’s judgment of 28 June 2007, the domestic courts agreed to review the formal lawfulness of the decisions of 13 April and 15 May 2006. However, the domestic courts were still not able to review the need to apply the measures set out in section 14(1) of the Interment and Burial Act and Decree no. 164 of 20 March 2003 in individual cases. 26. The applicant did not contest the decision of 15 May 2006 before the domestic courts. Instead, she referred in her submissions to the judgment of 3 July 2008 of the Nalchik Town Court upon an application lodged by one of the applicants in the case of Zalov and Khakulova (cited above). In that case, the court had quashed, inter alia, the decision of 15 May 2006 and held that it had been premature. On 12 August 2008 the Supreme Court of the Republic of Kabardino-Balkariya upheld that judgment on appeal (ibid., §§ 35‐40). 27. The applicant subsequently challenged the actions of the authorities and the decision of 13 April 2006 before the courts. 28. By a judgment of 17 February 2009, the Nalchik Town Court partly granted the applicant’s claims. In particular, the court quashed the decision of 13 April 2006 to terminate the criminal proceedings in respect of the applicant’s husband because of his death. The court noted that the decision of 13 April 2006 had failed to take account of the new legislation on terrorism, adopted on 6 March and 27 June 2006. The court ordered the prosecution authorities to examine the relevant issues afresh. 29. Both parties appealed against the judgment. 30. The Supreme Court of the Republic of Kabardino-Balkariya upheld the judgment of 17 February 2009 on 21 April 2009. 31. On 30 December 2009 the applicant lodged an application with the investigative authorities, asking them to provide her with information about the execution of the judgments of 3 July 2008 and 17 February 2009. 32. On 8 February 2010 the Chief Investigation Directorate in the Southern Federal Circuit of the Investigation Committee of the Russian Federation replied that the decision of 13 April 2006 was neither unlawful nor unfounded. The applicant was informed that the secret burial of her husband’s body had been performed in full compliance with the domestic law and in accordance with the decision of 15 May 2006. The investigative authority also explained that the applicant could not be granted access to the material in the criminal case file as she had no procedural status in the relevant criminal proceedings. 33. On 10 February 2010 the Prosecutor General’s Office of the Russian Federation replied that on 8 February 2010 the republican prosecutor’s office had lodged a request for supervisory review of the judgment of 17 February 2009 and the subsequent appellate decision of 21 April 2009. They also noted that the applicant had not lodged any complaint against the decision of 15 May 2006, and that she could request information about the outcome of criminal case no. 25-78-05 from the Investigation Committee. 34. The parties have not submitted any information about subsequent developments in the relevant domestic cases. RELEVANT LEGAL FRAMEWORK AND PRACTICE
35.
For a summary of the relevant domestic law and other relevant sources, see Sabanchiyeva and Others (cited above, §§ 33-37 and 65-96) and Maskhadova and Others v. Russia (no. 18071/05, §§ 116-50, 6 June 2013). THE LAW
36.
Relying on Article 8 of the Convention, the applicant complained about the authorities’ refusal to return the body of her deceased husband. Article 8 of the Convention reads as follows:
“1.
Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
37.
The Court notes that this part of the application is not manifestly ill‐founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 38. The Government did not contest the applicant’s allegations and referred to the Court’s findings in its judgment in Sabanchiyeva and Others (no. 38450/05, ECHR 2013 (extracts)). The Government suggested that the applicant’s complaint be examined in the same manner and admitted that there had been a violation of Article 8 of the Convention. 39. In her reply to the Government’s observations, the applicant also relied on the Court’s findings in Sabanchiyeva and Others, and insisted on the disproportionate character of the measure applied by the authorities. 40. The Court observes that both parties to the case relied in their written submissions on the Court’s findings in Sabanchiyeva and Others (cited above). The Court further notes that that judgment, as well as the judgments in Zalov and Khakulova v. Russia (no. 7988/09, 16 January 2014), and Arkhestov and Others v. Russia (no. 22089/07, 16 January 2014), concerned the same attack that took place in Nalchik on 13 October 2005 and the events that followed, and that the applicants in those cases raised similar complaints under Article 8 of the Convention with regard to the domestic authorities’ refusal to return the bodies of their deceased relatives pursuant to the decision of 15 May 2006. 41. In those cases the Court found that the measure in question had constituted an interference with the applicants’ “private life” and “family life” within the meaning of Article 8 of the Convention, and that it could be considered as having been taken in the interests of public safety, for the prevention of disorder and for the protection of the rights and freedoms of others. However, having regard to the automatic nature of the measure and the authorities’ failure to give due consideration to the principle of proportionality, the Court concluded that the measure in question had not struck a fair balance between the applicants’ right to the protection of their private and family life, on the one hand, and the legitimate aims of public safety, prevention of disorder and the protection of the rights and freedoms of others on the other, and that the respondent State had overstepped any acceptable margin of appreciation in this regard (see Sabanchiyeva and Others, §§ 117-47; Zalov and Khakulova, §§ 67-96; and Arkhestov and Others, §§ 73-102, all cited above). 42. The Court finds no reason to arrive at a different conclusion in the present case. 43. It follows that there has been a violation of the applicant’s right to respect for her private and family life, as guaranteed by Article 8 of the Convention, as a result of the decision of 15 May 2006. 44. Relying on Article 13 of the Convention taken in conjunction with Article 8, the applicant also complained about the lack of an effective remedy in respect of the authorities’ refusal to return the body of her deceased husband. Article 13 of the Convention provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
45.
On the basis of the material submitted, the Court observes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that this part of the case is not inadmissible on any other grounds. It must therefore be declared admissible. 46. The Government referred to the Court’s findings in Sabanchiyeva and Others (cited above) and suggested that the applicant’s complaint be examined in the same manner and a violation of Article 13 of the Convention taken in conjunction with Article 8 be found in the present case. 47. In her reply to the Government’s observations, the applicant maintained her complaint and also relied on the Court’s findings in Sabanchiyeva and Others. 48. The Court notes that the relevant general principles were summarised in its judgments in Sabanchiyeva and Others (cited above, §§ 151-52) and Maskhadova and Others v. Russia (no. 18071/05, 6 June 2013, §§ 242‐43). 49. The Court further observes that both parties to the present case referred in their written submissions to the Court’s findings in Sabanchiyeva and Others. The Court further notes that that judgment, as well as the judgments in Zalov and Khakulova and Arkhestov and Others (both cited above), concerned the same attack in Nalchik on 13 October 2005 and the events that followed, and that the applicants in those cases raised similar complaints under Article 13 of the Convention taken in conjunction with Article 8 with regard to the lack of an effective remedy in respect of the authorities’ refusal to return the bodies of their deceased relatives pursuant to the decision of 15 May 2006. 50. In the above-mentioned judgments the Court found that the Government had been unable to demonstrate that the domestic legal system provided for effective judicial supervision in respect of the decision of 15 May 2006 and that the relatives of the deceased had not had an effective remedy in respect of the Convention violations they had alleged (see Sabanchiyeva and Others, §§ 153-56; Zalov and Khakulova, §§ 102-05; and Arkhestov and Others, §§ 108-11, all cited above). 51. Having examined all the material submitted to it, the Court does not find any fact or argument capable of persuading it to reach a different conclusion as to the merits of this complaint. 52. Accordingly, the Court concludes that there has been a violation of Article 13 of the Convention taken in conjunction with Article 8. 53. The applicant complained in addition to her submissions under Article 8 of the Convention that the refusal of the authorities to return the body of her deceased husband had been contrary to Articles 3 and 9 of the Convention. 54. On the basis of the material submitted, the Court observes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that this part of the case is not inadmissible on any other grounds. It must therefore be declared admissible. 55. Regard being had to the particular circumstances of the present case and to the reasoning which led it to find a violation of Article 8 and Article 13 of the Convention taken in conjunction with Article 8, the Court finds that there is no cause for a separate examination of the same facts from the standpoint of Articles 3 and 9 (see also Sabanchiyeva and Others, § 158, and Maskhadova and Others, §§ 248-49, both cited above). 56. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
57.
The applicant alleged that she had sustained non‐pecuniary damage and claimed compensation in the amount of 10,000 euros (EUR). The applicant also requested that the Court order the respondent State to disclose the information regarding the circumstances of her husband’s burial, including the whereabouts of his grave, and to allow unrestricted access to the gravesite for the applicant and other relatives of her deceased husband. 58. The Government submitted that those claims were unfounded and generally excessive, and requested that the Court follow the approach it had taken in its judgment in Sabanchiyeva and Others (cited above). 59. The Court considers that, in the circumstances of the present case, the finding of a violation of Article 8 of the Convention, taken alone and in conjunction with Article 13, constitutes sufficient just satisfaction for the applicant (see Sabanchiyeva and Others, § 171, and Maskhadova and Others, § 258, both cited above). 60. The applicant also claimed EUR 5,271.95 for the legal and other costs and expenses incurred in the Strasbourg proceedings. She requested that any award under this head be paid directly to Stichting Russian Justice Initiative. In support of her claim, the applicant submitted a conditional fee agreement signed between her and Stichting Russian Justice Initiative and an invoice for the above-mentioned sum. 61. The Government submitted that the amounts claimed were excessive and unjustified. In particular, they noted that the applicant had not incurred any costs and expenses, as the obligation to pay for the services of her representative was conditional on the conclusions reached by the Court. 62. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. 63. Having regard to the material in its possession, the Court considers it reasonable to award the applicant EUR 2,000 in respect of costs and expenses, plus any tax that may be chargeable to her on that amount, to be paid directly into the bank account of Stichting Russian Justice Initiative. 64. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,000 (two thousand euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant on the above amount, to be converted into the currency of the respondent State at the rate applicable at the date of settlement and to be paid into the bank account indicated by the applicant’s representatives;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 20 April 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Olga Chernishova Paul LemmensDeputy RegistrarPresident
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Pavli is annexed to this judgment.
P.L.O.C. PARTLY DISSENTING OPINION OF JUDGE PAVLI
1.
I voted in favour of the unanimous findings of violations of the applicant’s rights under Articles 8 and 13 of the Convention. I regret, however, that I cannot agree with the majority’s conclusion that no separate examination is required under Article 9 of the Convention. 2. In her complaint under Article 9, the applicant alleged that “the Respondent Government’s refusal to swiftly release the corpse [of the applicant’s husband] and its choice to cremate instead of burying the corpse constitute[d] a serious interference with her freedom of religion”. While the authorities’ refusal to return the body for burial was raised by the applicant under both Articles 8 and 9, the authorities’ decision to cremate the body was only raised as part of her complaint under Article 9. To substantiate the latter complaint, the applicant provided a description of burial rituals prescribed by her Islamic religion. The claim based on the strict rejection of cremation in the Muslim tradition is also clear from the applicant’s statements made in the context of her complaint under Article 3: “According to the Caucasian traditions and Islam this [cremation] is categorically unacceptable” (§ 18 of the applicant’s observations of 22 April 2014). Thus, the applicant raised a genuine and sufficiently argued Article 9 claim with respect to the cremation of her husband’s remains. 3. The majority’s decision not to carry out a separate examination of the Article 9 complaint follows the approach adopted in previous cases concerning substantially the same events, in which the Court examined the Russian authorities’ refusal to return the bodies of the applicants’ relatives under Article 8. The Article 9 complaints based on the same grounds were, in effect, subsumed under the Article 8 examination (see Sabanchiyeva and Others v. Russia, no. 38450/05, § 158, ECHR 2013 (extracts); Arkhestov and Others v. Russia, no. 22089/07, § 114, 16 January 2014; and Zalov and Khakulova v. Russia, no. 7988/09, § 108, 16 January 2014). 4. In my view, however, the current applicant’s Article 9 claim, insofar as it concerns the authorities’ decision to cremate her husband’s body, raises a different issue. It is one thing not to return the body to the family; it is something else to dispose of the body in a manner which the applicant alleges is incompatible with the basic tenets of her religion. 5. In the Islamic tradition (as well as in certain other religions), cremation is considered to violate the dignity of the human body and is therefore strictly forbidden. [1] The practice of forced cremation raises serious issues from the standpoint of religious freedom, as demonstrated by the recent controversies on the disposal of the bodies of COVID-19 victims. For example, the International Committee of the Red Cross expressed its concern “about the impact on bereaved families whose loved ones have been cremated against their religious beliefs due to fear of the spread of COVID-19”. [2] In the same vein, four United Nations special rapporteurs concluded in a joint statement that “[t]he imposition of cremation as the only option for handling the bodies confirmed or suspected of COVID-19 amounts to a human rights violation”, calling on States to respect and protect the dignity of the dead and their cultural and religious traditions or beliefs. [3] In particular, the objections of the Jewish and Muslim religious communities in March 2020 led the United Kingdom Government to amend a bill that would have allowed cremations against the express wishes of the deceased and their next of kin. [4]
6.
As regards Article 9 itself, it is settled case-law that an act of worship or devotion that forms part of the practice of a religion or belief in a generally recognised form constitutes a “manifestation” of religion or belief within the meaning of Article 9 (see S.A.S. v. France [GC], no. 43835/11, § 55, ECHR 2014 (extracts), and Eweida and Others v. the United Kingdom, no. 48420/10, § 82, 15 January 2013). As to the manner of burying the dead, the Court dealt specifically with that issue in Johannische Kirche and Peters v. Germany ((dec.), no. 41754/98, 10 July 2001). In that case, the applicants, who wished to build a cemetery with a specific layout in line with their religious beliefs, argued that the refusal to authorise the construction of the cemetery violated their rights under Article 9. The Court held that a refusal to authorise the construction of a cemetery can be construed as a restriction of the right to manifest one’s religion within the meaning of Article 9 § 2 of the Convention in so far as the manner of burying the dead and cemetery layout represented an essential aspect of the religious practice of the applicant religious community and its members. It seems obvious that the manner of disposal of mortal remains could give rise to an even more significant interference with religious beliefs. 7. In view of the above, I am unable to agree with the majority’s decision to dismiss the genuine Article 9 claim raised by the applicant, and to do so without explanation. Such an approach sits ill with the Court’s mandate under Article 19 of the Convention to “ensure the observance of the engagements undertaken” by the States Parties and to uphold all the fundamental rights guaranteed by the Convention. [1] See Ahmed Al-Dawoody and Oran Finegan, “COVID-19 and Islamic burial laws: Safeguarding dignity of the dead” (Humanitarian Law & Policy, 30 April 2020), at blogs.icrc.org/law-and-policy/2020/04/30/covid-19-islamic-burial-laws. [2] See www.icrc.org/en/document/covid-19-authorities-must-urgently-plan-ahead-ensure-dead-bodies-are-properly-handled. . [3] See www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=26686&Lang ID=E. [4] Catherine Fairbairn, “Coronavirus: Powers to direct between burials and cremation” (House of Commons Library, 27 March 2020), at commonslibrary.parliament.uk/ coronavirus-powers-to-direct-between-burials-and-cremation.