issued by the Registrar of the Court no. 273 29.03.2011 Russian authorities failed to account for air raid killing five people and destroying Chechen village In today s Chamber judgment in the case Esmukhambetov and Others v. Russia (application no. 23445/03), which is not final 1, the European Court of Human Rights held, unanimously, that there had been: A violation of Article 2 (right to life: obligation to conduct an effective investigation) of the European Convention on Human Rights in respect of the circumstances surrounding the deaths of the relatives of five of the applicants; A violation of Article 2 (right to life: obligation to protect) in respect of the deaths of the relatives of five of the applicants; A violation of Article 13 (right to an effective remedy) taken together with Article 2 in respect of five of the applicants; A violation of Article 13 taken together with Article 8 (right to respect to private and family life and the home) and Article 1 of Protocol No. 1 (protection of property) in respect of all applicants; A violation of Article 8 and Article 1 of Protocol No. 1 in respect of all applicants; A violation of Article 3 (prohibition of inhuman or degrading treatment) in respect of one applicant s mental suffering endured because of the death of his wife and two sons. The case concerned a Russian military air strike on a village in Chechnya in September 1999 which killed five people and destroyed houses and property. Principal facts The applicants are 27 Russian nationals who lived at the time of the events in the village of Kogi (Shelkovskiy District, Chechen Republic) at the border between Dagestan and Chechnya. In the afternoon of 12 September 1999, two Russian military planes raided the village, firing machine gun shots and dropping a number of bombs, resulting in the deaths of two children and three women. One of the applicants (Mr Esmukhambetov) witnessed the death of his two young sons and of his wife, the latter dying in his arms fatally wounded with shrapnel. The air raid also left approximately 30 houses destroyed or 1 Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on that day. Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution
severely damaged. Many of the villagers left Kogi the same day, driving off to the nearby village of Kumli in Dagestan. The following day, the bodies of all the victims were buried and the administration of Kogi issued certificates in respect of each victim, stating that they had been killed during the bombing. When the villagers subsequently returned to Kogi to collect their belongings, they witnessed Russian federal servicemen demolishing further buildings. Most of the applicants did not return to Kogi after that; they spent the following winter in a refugee camp in Dagestan. Following the attack, the applicants repeatedly applied to various State bodies, including prosecutors at different levels, the district and regional departments of the interior, several federal ministries and the State Duma, describing in detail the events of 12 September 1999 and asking for assistance and details of the investigation. The enquiries remained largely unanswered, or only formal responses were given, stating that the applicants requests had been forwarded to various prosecutors offices. About a month after the attack, one of the applicants was questioned by an investigator from a military prosecutor s office in Dagestan and he inspected and photographed the ruins and the places where the victims had been killed. Criminal proceedings in connection with the air raid were instituted in January 2002, of which the applicants were informed in May 2003. The proceedings were subsequently closed and reopened, and in September 2005 they were finally discontinued, as no constituent elements of a crime punishable under the relevant provisions of the Russian Criminal Code (inflicting death by negligence) had been found in federal servicemens actions. The prosecutor s decision stated that the pilots of the military plane had bombed the village, following their superiors binding order, and that that order had been justified by the necessity to prevent terrorist attacks which had been planned by members of illegal armed formations and to eliminate the danger to the public. According to the applicants submissions, however, Kogi had been a peaceful village; no rebel fighters had ever lived there. Following their court claim, three of the applicants were awarded compensation of 1,500 and 500 euros (EUR) respectively in connection with the deaths of their relatives by the Dagestan Supreme Court in July 2005. The court decision was based on a presidential decree providing for payment of a fixed amount to relatives of each individual killed as a result of the hostilities in the Chechen Republic. Complaints, procedure and composition of the Court The applicants complained about the air strike, relying on Articles 2 (right to life), 3 (prohibition of inhuman or degrading treatment), 8 (right to respect to private and family life and the home), 13 (right to an effective remedy) and Article 1 of Protocol No. 1 (protection of property). The application was lodged with the European Court of Human Rights on 21 July 2003. Judgment was given by a Chamber of seven, composed as follows: Nina Vajić (Croatia), President, Anatoly Kovler (Russia), Christos Rozakis (Greece), Peer Lorenzen (Denmark), Khanlar Hajiyev (Azerbaijan), George Nicolaou (Cyprus), Julia Laffranque (Estonia), Judges, and also Søren Nielsen, Section Registrar. 2
Decision of the Court Article 2 (alleged inadequacy of the investigation) The Court noted that the Government had acknowledged the fact that the relatives of five of the applicants had been killed as a result of the aerial attack of the Russian federal military. Accordingly, the applicants had an arguable claim under Article 2. Despite the Court s repeated requests for a copy of the file on the criminal investigation concerning the attack, the Government had refused to disclose any document from that file, referring to the classified nature of the documents under the Russian Code of Criminal Procedure and stating that their disclosure would be contrary to the interests of the investigation. The Court therefore had to assess the complaint on the basis of the scarce information submitted by the Government and the documents produced by the applicants. The Government had not advanced any justification for the considerable delay of more than two years in instituting criminal proceedings, which had to have significantly undermined the effectiveness of the investigation. The results of a large-scale attack involving aircraft should have become known to the authorities immediately afterwards and it fell to the State to ensure that agents participating in the attack duly reported on it and that the competent authorities checked its results without delay. It was reasonable to assume that the investigation had been stayed and reopened on several occasions, given that it had remained pending for three years and eight months, which exceeded by far the time-limits for a preliminary investigation under domestic law. The applicants had received almost no information on the investigation. In particular, they had only been informed of the institution of proceedings more than a year later. The Government had failed to indicate clearly whether the applicants had been granted victim status in the case. Against that background, the Court was not convinced by the Government s argument that the applicants could have applied to a court against any of the procedural decisions taken in the context of the investigation. The Court concluded that the authorities had failed to carry out a thorough and effective investigation into the circumstances surrounding the deaths of the applicants five relatives. It was therefore not necessary to examine the question as to whether the compensation awarded to three of the applicants in connection with the deaths of their family members had been adequate. There had accordingly been a violation of Article 2 in respect of the inadequacy of the investigation. Article 2 (alleged failure to protect the right to life) The Government having acknowledged its resposibilty for the air raid that killed the applicants relatives, it was for the State to to demonstrate that the force used by the federal servicemen had been absolutely necessary for the purpose of Article 2. While claiming that the federal servicemen involved in the air raid had acted in compliance with national legislation for securing the safety of the civilian population, the Government had failed to indicate the legal instruments to which they referred, thus preventing the Court from assessing whether an appropriate legal framework concerning the use of lethal force by military personnel was in place and, if so, whether it contained clear safeguards to prevent arbitrary deprivation of life. As the Government had produced no evidence to corroborate the argument concerning the presence of illegal fighters in the vicinity of Kogi, the Court was sceptical about that assertion. Even assuming that the authorities had had information as to the existence of a terrorist base there, the Government had failed to demonstrate that that information had been evaluated carefully so as to avoid or minimise the risk of loss of lives. In particular, it did not appear that the authorities had taken any steps to inform the 3
villagers of the attack beforehand and to secure their evacuation. The Court further did not see why the Russian Government could not have attained the aim pursued by any other means, in particular by using ground troops. In the light of those considerations, the Court considered that the State had failed in its obligation to protect the right to life of the applicants relatives. There had accordingly been a violation of Article 2 on that account. Article 13 The Court considered that the compensation three of the applicants had received for the deaths of their relatives could not be considered an effective remedy for the purpose of Article 13 taken together with Article 2, as, under the relevant presidential decree a lump-sum was paid to relatives of people killed as a result of the hostilities in the Chechen Republic without distinguishing between deaths inflicted by private individuals and those caused by State agents. Moreover, as the Court had held in other cases where the criminal investigation into the applicants relatives deaths had been ineffective and the effectiveness of any other remedy that might have existed was consequently undermined the State had failed in its obligation under Article 13. There had accordingly been a violation of Article 13 in respect of the violations of Article 2 concerning the deaths of the family members of five of the applicants. The Court considered that its finding regarding the ineffectiveness of the investigation into the deaths of the five persons also applied to the the investigation into the destruction of the applicants homes and property, given that all those offences had been investigated within the same set of criminal proceedings. In the absence of any meaningful results of the investigation into the destruction of the property in question, a civil claim for damages on that account, which according to the Russian Government could have been lodged by the applicants, would hardly have had any prospects of success. The Court also referred to the practice of the Russian courts, which had consistently refused to award any compensation for damage caused by the federal forces during the conflict in the Chechen Republic. It therefore found that the applicants had no effective domestic remedies in respect of the alleged violation of their rights under Article 8 and Article 1 of Protocol No. 1. Accordingly, there had been a violation of Article 13 of the Convention on that account. Article 8 and Article 1 of Protocol No. 1 The air raid having resulted in the destruction of a number of buildings in the village of Kogi, it was clear that there had been an interference with the applicants rights under Article 8 and Article 1 of Protocol No. 1. As regards the lawfulness of the interference, the Government had referred to the Suppression of Terrorism Act as a legal basis. The Court had already noted in other cases concerning the conflict in the Chechen Republic, that that Act did not define with sufficient clarity the scope of those powers and the manner of their exercise so as to afford an individual adequate protection against arbitrariness. The law could not serve as a sufficient legal basis for such a drastic interference as the destruction of an individual s housing and property. The interference with the applicants rights had not been lawful, within the meaning of Article 8 of the Convention and Article 1 of Protocol No. 1. There had accordingly been a violation of Article 8 of the Convention and Article 1 of Protocol No. 1 Article 3 While there was no doubt as to the profound suffering caused to those applicants who had lost their relatives, killed by an indiscriminate bombing, the Court found no violation of Article 3 on that account, observing that four of those applicants had not witnessed the killing and given that it had already found a violation of Article 2 as regards the 4
death of the applicants relatives. With regard to the destruction of the applicants property, the Court held that it had hardly been the purpose of the attack to subject the applicants to inhuman treatment and to cause them moral suffering; the Court was therefore unable to find a violation of Article 3 on that account. The Court reached a different conclusion with regard to the first applicant, Mr Esmukhambetov, however, who witnessed the killing of his entire family. Having regard in particular to eyewitness statements to the effect that he had appeared to have been in a state of deep shock after his family members had been killed, the Court considered that the suffering endured by Mr Esmukhambetov had been of such severity for the acts in question to be categorised as inhuman treatment within the meaning of Article 3. There had thus been a violation of Article 3 on account of his moral suffering. Article 41 Under Article 41 (just satisfaction) of the Convention, the Court held that Russia was to pay 41,000 euros (EUR) to the first applicant, EUR 39,000 to the second and third applicants and EUR 38,000 to each of the other applicants in respect of pecuniary damage; EUR 120,000 to the first applicant, EUR 30,000 to the second applicant, EUR 60,000 to the third applicant, EUR 15,000 to each of the 13th and 22nd applicants and EUR 10,000 to each of the remaining applicants in respect of non-pecuniary damage. The judgment is available only in English. This press release is a document produced by the Registry. It does not bind the Court. Decisions, judgments and further information about the Court can be found on its Internet site. To receive the Court s press releases, please subscribe to the Court s RSS feeds. Press contacts echrpress@echr.coe.int tel: +33 3 90 21 42 08 Nina Salomon (tel: + 33 3 90 21 49 79) Emma Hellyer (tel: + 33 3 90 21 42 15) Tracey Turner-Tretz (tel: + 33 3 88 41 35 30) Kristina Pencheva-Malinowski (tel: + 33 3 88 41 35 70) Céline Menu-Lange (tel: + 33 3 90 21 58 77) Frédéric Dolt (tel: + 33 3 90 21 53 39) The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. 5