Grebelskiy: the law prohibiting the bodies of terrorists to be handed over to relatives runs contrary to the Constitution

The legislative norms prohibiting the bodies to be handed over to relatives, adopted recently in Russia, run contrary to the European convention on human rights and fundamental freedoms and other international norms on human rights, and to the Constitution of Russia, said Alexander Grebelskiy, Moscow lawyer, international law expert, to the "Caucasian Knot" correspondent. "In particular, with regard to the freedom of religion, non-implication of relatives of international criminals in their crimes and the right of each person to bury his/her relatives in conformance with the customs and confessional norms existing in their community, " explained Grebelskiy in his interview to the "National Interests" news agency.

"In line with the presumption of innocence, no person may be recognized as a criminal prior to a court ruling, whereas no in absentia legal proceedings are held in this country after the person's death. The case is closed due to the defendant's death. Therefore, the person may not be recognized as guilty of committing some act. Now, if the guilt can not be proved, no exceptional measures may be taken with regard to the person's body. This would be illogical and contravene one of the basic principles of law. This norm has not been disputed in the Constitutional Court because, in my view, it is unfortunately rather widely spread in Western countries. In particular, for the first time it has been applied in the legislation of Israel. In the context of fighting terrorism, it is still effective so far, but, in my view, it is a survival of times past," said Alexander Grebelskiy.

"This norm of the Russian law could be appealed against in the European Court on Human Rights. But the procedure requires going through court instances in Russia, at least up to the level of a city or regional court presidium. However, no lawyer is entitled to do it alone - an applicant is needed here. I could represent an applicant, and we need someone whose rights have been violated, some relatives who are not allowed to get the body of the diseased because of the law. If there are volunteers, I am ready to act!" said Grebelskiy to Alexander Nikolaev, IA "National Interests" correspondent.

The lawyer explained to the "Caucasian Knot" correspondent that he was ready to represent the interests of families of Aslan Maskhadov or Abdul-Halim Sadulaev, the killed Chechnya separatists, whose remains would not be handed over to the relatives by the Constitutional Court (CC) of Russia: "By virtue of the lawyer's ethics, I can not refuse their request to represent their interests. It is a legal, rather than a moral issue."

"I am prepared to take this case within the framework of the constitutional process: I have an experience of preparing and defending such cases in the Constitutional Court, but I can not deal with the prelude, bringing the plaintiffs' complaints on the refusal to hand out the bodies to the common courts at the defendants' location. If this were in Moscow I would probably agree. But not in Chechnya  or another region of the Southern Federal Province. I do not work in provinces, it is just not possible," claims the lawyer.

According to Alexander Grebelskiy, a similar case has recently been considered by the Constitutional Court and a ruling has been formulated. The complaint was filed by relatives of the militants killed in the course of armed clashes in Nalchik on 13-14 October last year, whose bodies would not be handed out. "That attempt was not altogether professional, assumes the lawyer, the plaintiffs failed to get the ruling on the merits of the case: the Court Secretariat declined the appeal on formal grounds."

Grebelskiy says that, if Aslan Maskhadov's relatives are not able to come to the Russian Federation for defending their interests in court, they can lawfully instruct their representative to deal with their case on the basis of a power of attorney.

Earlier the "Caucasian Knot" reported that the General Prosecutor's Office of the Russian Federation had declined the address by Oleg Orlov, member of the Council on the development of civil society and human rights institutions under the RF President, Chairman of the "Memorial" human rights center (HRC), with a request to hand out the body of Aslan Maskhadov , the Chechnya separatists' leader killed last Match, for its burial by relatives.

"In conformance with item 3 of the "Regulation on the burial of persons who died as a result of suppression of the terrorist act committed by them," approved by the RF Government Resolution No 164 of 20.03.2003, such persons are to be buried by specialized services dealing with funerals, created by executive agencies of the Russian Federation subject provinces or by local self-government institutions. The bodies of such persons shall not be handed over for burial and the place of their burial shall not be disclosed," concludes V.Kravchenko, counselor of state of class 2, deputy chief of the Main Department of the RF General Prosecutor's Office in the Southern Federal Okrug (SFO). The letter is dated 6 June.

"The information on the A.Maskhsdov's death, reports on the progress of the court proceedings and the ruling adopted on the criminal case of the persons arrested at the place of his death lead to the conclusion that Maskhadov's death did not result from suppression of a terrorist act committed by them." Even the prosecution does not assert this in its response," declared Sergei Davidis, a lawyer, member of the "Memorial" human rights center and leader of the Anti-war club, to the "Caucasian Knot" correspondent.

"Article 14.1 of the Federal Law (FL) "On Burial and Funeral Activity" establishes that "burial of persons whose criminal prosecution in connection with their involvement in terrorist activity has been stopped due to their death which resulted from suppression... of a terrorist act, shall be executed following the procedure prescribed by the Government of the Russian Federation. The bodies of the said persons shall not be handed over and their burial place shall not be disclosed. " The legislator's will embodied in this article seems to be unambiguous and inapplicable to the death of Aslan Maskhadov. The fact of criminal prosecution in connection with "involvement of the person in terrorist activity" is not sufficient for applying this norm and the Resolution of the RF Government which widens its provisions, to his burial. This would require the death of the person "to result from suppression of his terrorist act." No such circumstances took place," says Sergei Davidis.

"Moreover, the FL "On Keeping in Custody of Persons Suspected of and Charged with Crimes", Art. 24, stipulates that, "in case of death of the persons suspected of or charged with a crime,... the body of the diseased... shall be handed over to the persons who requested it." Thus, in case the person dies after being put into custody as a measure of restraint, his body must be handed over to relatives or other persons who request the body. Proceeding from a systemic interpretation of the law, there is no ground to believe that the procedure should be different if the person dies before the ruling on his placement into custody as a measure of restraint has been implemented," reflects Davidis.

On April 21, the Main Department of the General Prosecutor's Office in SFO informed the Anti-war club that it was impossible to hand over the body of Aslan Maskhadov to his relatives. Irina Vologhina, the action coordinator, informed the "Caucasian Knot" correspondent that this was in response to the address to President Putin with a request for the body to be handed over, signed by 478 people.

Aslan Maskhadov's relatives also try to get his body to be handed over to them. They appealed with a request to help them in this issue to leaders of the world community and to the Union of Soldiers' Mothers in Russia.

It was officially reported that Aslan Maskhadov, the former president of the self-proclaimed Republic of Ichkeria, had been killed on March 8, 2005 in the village of Tolstoy-Yurt in Grozny district, Chechnya, in the course of a secret operation conducted by the FSS. It was claimed that Maskhadov had perished during the attack on the underground shelter where the separatist leader had been in hiding together with his confidants. According to mass media, shortly before his death, Aslan Maskhadov had proposed a truce to the federal authorities and even declared a unilateral moratorium on combat actions.

"Relatives of those killed in the course of events on October 13-14, 2005 in Nalchik, and the movement "For Human Rights" have repeatedly applied to the General Prosecutor's office and the Ombudsman with a request to undertake measures for the bodies of the diseased to be handed over. The bodies have been kept in the Nalchik morgue for half a year. Each time the answer is that, since the implication in terrorism of the diseased has not been established, the bodies may not be handed over until such guilt is established. The refusals have been appealed against in court. Since the anti-terrorist legislation applicable to the persons charged with terrorism has changed, the court refers to the provision of Art. 14.1 of the law "On Burial and Funeral Activity". Following this, the relatives of the diseased applied to the Constitutional Court stating that the provision prohibiting the bodies to be handed over "to relatives for burial under their religious and national customs (rituals) is a form of intimidation and collective punishment of the relatives of the diseased whose religious and ethical feelings are brutally offended and humiliated. By the essence of the norm under dispute, the fact of refusal to hand over the bodies, even under the pretext of their identification, is regarded as involvement in terrorism, and this inflicts unjustified moral suffering on their relatives." On May 16, the Constitutional Court Secretariat responded that the issue of applicability would be considered at the next CC plenary session "in June-July 2006 at the earliest." However, already on May 29, P.Kondratov, chief of CC department of constitutional foundations of criminal justice, prior to the plenary session, stated that the complaint had been declined by the CC Secretariat since "from the materials you sent over it does not follow that the disputed norm of the Federal Law "On Burial and Funeral Activity" has been applied in your case and thereby violated constitutional rights and freedoms," claims the movement "For Human Rights."