issued by the Registrar of the Court

922

02.12.2010

Russia condemned for continued failure to investigate

indiscriminate bombardment of a Chechen village

In today’s Chamber judgment in the case Abuyeva and Others v. Russia (application

no. 27065/05), which is not final¹, the European Court of Human Rights held,

unanimously, that there had been a:

Violation of Article 2 (right to life) of the European Convention on Human Rights, in

respect of the applicants and their 24 relatives who were killed;

Violation of Article 2 (right to life: lack of effective investigation into the use of

lethal force by State agents)

Violation of Article 13 (right to an effective remedy) in conjunction with

Article 2

The case concerned the applicants’ allegation that 24 of their relatives died during the

bombardment on their village in February 2000. Some of the applicants also complained

about injuries they had sustained during the attack.

The Court found in particular that, despite its finding in a previous judgment (Isayeva v.

Russia of 24 February 2005²) concerning the same events, the ensuing new

investigation into the bombardment had been plagued by exactly the same defects and

invited the Committee of Ministers, the executive arm of the Council of Europe, which

supervises the execution of the Court’s judgments, to address the issue.

Principal facts

The applicants are 29 Russian nationals. In February 2000 they resided in the village of

Katyr-Yurt (Achkhoy-Martan district, Chechnya), which, from the beginning of military

operations by the Russian military and security forces in Chechnya in the autumn of

1999, was treated as a “safe zone”. In February 2000, up to 25,000 people lived there.

The case concerned the attack by the Russian military forces between 4 and 7 February

2000 on the village of Katyr-Yurt following its capture by a large group of Chechen

fighters who had escaped from Grozny. The assault, during which the Russian forces

used heavy free-falling aviation bombs, missiles and other arsenal, resulted in the

deaths of 24 of the applicants’ close relatives (including minor children and elderly

parents), all mostly sheltering in basements during the attacks. Ten of the applicants

were wounded, mainly by shrapnel and had to have surgery; one of them had to have

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

As a result of the February 2002 bombardment, Zara Isayeva’s son and three nieces were killed.

his left leg amputated as a result of gangrene developed from a shell wound. The

applicants alleged that they had difficulty escaping from the shelling as the military had

controlled the two exits leading out of the village.

A criminal investigation was launched by the Russian authorities into the incident and in

2000-2001 most of the applicants or members of their families, as well as other people

who had been in Katyr-Yurt at the time, were apparently interviewed. The applicants

submitted that during the interviews they had been assured that the authorities would

keep them informed of the progress of the investigation and that they would be granted

compensation. The investigation was closed in March 2002, as the actions of the military

were found to have been legitimate in the circumstances, as a large group of illegal

fighters had occupied the village and refused to surrender.

The applicants complained about that decision and in March 2006 the courts decided to

send the investigation back to the military prosecutor’s office. In the meantime,

however, the investigation had already been resumed in November 2005 following the

conclusions of the Court in the Isayeva case, where the applicant was a party to the

same set of domestic proceedings as the applicants in the present case. During this

second set of proceedings a number of additional witnesses were interviewed, including

ten of the applicants and some of their relatives. In June 2007 the investigation was

closed, with the same conclusions as in March 2002. In particular, the decision referred

to an additional military expert report – not submitted to the Court – which upheld the

experts’ findings during the first investigation: namely that civilians’ evacuation had

been properly organised but obstructed by Chechen rebels and that weapons – localised

fire – had been correctly chosen.

The Government argued that the attack and its consequences, motivated by the active

resistance of illegal armed groups, had been absolutely necessary for the protection of

the population of Katyr-Yurt. The organised civilian exit corridors had been sabotaged by

the Chechen fighters who had used the residents as a “human shield” to prevent defeat

and capture. They further argued that the investigation had been carried out by an

independent body – the military prosecutor’s office. It had interviewed and granted

victim status to 95 people, interviewed over 50 witnesses, and called for several expert

reports. The second set of proceedings had collected an important body of additional

evidence which had allowed the circumstances of the events that took place between 4

and 7 February 2000 in Katyr-Yurt to be further clarified. An additional expert report had

been carried out by the Military Academy of the Armed Forces.

Complaints, procedure and composition of the Court

Relying on Article 2 (right to life), the applicants argued, with direct reference to the

Isayeva judgment, that their dead relatives’ right to life as well as their own – given the

level of danger to which they had been exposed – had been breached. Relying on Article

13 (right to an effective remedy), they further submitted that the investigation into the

attack had been ineffective – both prior to the resumption of proceedings in 2006 and

after that date –, in particular that the military prosecutor’s office had failed to address

numerous omissions noted by the Court and to inform them of the most important

developments.

The application was lodged with the European Court of Human Rights on 26 July 2005.

Judgment was given by a Chamber of seven, composed as follows:

Christos Rozakis (Greece), President,

Anatoly Kovler (Russia),

Elisabeth Steiner (Austria),

Dean Spielmann (Luxembourg),

Sverre Erik Jebens (Norway),

Giorgio Malinverni (Switzerland),

George Nicolaou (Cyprus), Judges,

and also André Wampach, Deputy Section Registrar.

Decision of the Court

Article 2

The Court had accepted in the Isayeva case that the operation in Katyr-Yurt on 4 to 7

February had pursued a legitimate aim, but found that it had not been planned and

executed with the requisite care for the lives of the civilian population, in violation of

Article 2.

Having examined the submissions of the parties in the present case, the Court found no

reasons to depart from the findings made in the Isayeva judgment. As no copy of the

additional expert report cited in the decision of 2007 to terminate the investigation had

been submitted to the Court, there were no documents to uphold the earlier

Government’s conclusions about the proper organisation of the civilians’ evacuation, the

correct choice of weapons and the responsibility of the fighters for the failures of the

“humanitarian corridor”.

While the operation in Katyr Yurt between 4 and 7 February 2000 pursued a legitimate

aim, it was not planned and executed with requisite care for the lives of the civilian

population. Accordingly, there had been a violation of Russia’s obligation to protect the

right to life of the applicants and their relatives who died or who were wounded during

the operation.

Investigation

In the Isayeva judgment the Court concluded that the domestic investigation had been

inefficient. It criticised a delay of seven months before the opening of the investigation,

the lack of crucial information about the “safe passage”, about the persons responsible

for the safety of the evacuation and about the instructions given to the soldiers. The

Court further criticised the failure to examine the allegation by certain high-ranking

servicemen that the inhabitants of Katyr-Yurt had been “punished” for what was

perceived as a lack of cooperation with the military and to comprehensively assess

human losses. Those who had victim status had also not been notified of the most

important procedural decision taken in the criminal proceedings. Lastly, the Court found

that the expert report of February 2002 – on the basis of which the investigation had

been closed – did not appear to tally with the documents contained in the case file.

On the basis of the documents reviewed, the Court concluded that all the major flaws of

the investigation indicated in 2005 had persisted throughout the second set of

proceedings, in particular concerning the crucial issues of responsibility for the safety of

the civilians’ evacuation and of the “reprisal” character of the operation against the

population of Katyr-Yurt. No additional questions about these aspects were posed to

persons involved at ground level and no one was charged with any crime. Furthermore,

the decisions to terminate the proceedings by the military prosecutor’s office, on the

basis of the expert reports prepared by army officers, raised serious doubts about the

independence of the investigation. The Court noted again the surprising failure, even

after seven years, to compile an exhaustive list of victims and to communicate

information to the applicants during the proceedings.

To sum up, the investigation carried out after the adoption of the Isayeva judgment had

suffered from exactly the same defects as those identified in respect of the first set of

proceedings, which, aside from the issues under Article 2, raised a matter under Article

46 of the Convention (see below).

The Court therefore concluded that no effective investigation has been carried out to

date into the circumstances of the attack on Katyr-Yurt between 4 and 7 February 2000,

in breach of the procedural aspect of Article 2.

Article 13

As the criminal investigation into the bombardment had been ineffective and the

effectiveness of any other remedy that might have existed, including civil remedies

suggested by the Government, had consequently been undermined, the Court concluded

that there had been a violation of Article 13 in conjunction with Article 2.

Article 41

Under Article 41 (just satisfaction) of the Convention, the Court held that Russia was to

pay the applicants a total of 1,720,000 euros (EUR) – sums ranging from EUR 30,000 to

EUR 120,000 – in respect of non-pecuniary damage and EUR 2,266 in respect of costs

and expenses.

Article 46

In carrying out the investigation in the present case, Russia manifestly disregarded the

specific findings of the binding judgment Isayeva v. Russia of 24 February 2005

concerning the ineffectiveness of the investigation. The Court emphasised in this respect

that any measures adopted within the execution process must be compatible with the

conclusions set out in the Court’s judgment.

On the practical side, the investigation compiled a large amount of data about the

events. Individual omissions appeared to be easily rectifiable on the basis of the existing

documents. However, to this day, no independent study of the proportionality and

necessity of the use of lethal force or investigation by an independent – preferably

judicial – body to establish individual responsibility for the death of the victims had been

carried out.

While the Court found that it fell to the Committee of Ministers, acting under Article 46 of

the Convention, to address the issue of what – in practical terms – may be required of

the Russian Government by way of compliance, it considered it inevitable that a new and

independent investigation should take place, which would bear due regard to the

conclusions in respect of the failures of the investigation carried out to date.

Separate opinion

Judge Malinverni, joined by judges Rozakis and Spielmann, expressed a concurring

opinion. This opinion is annexed to the judgment.

The judgment is available only in English.

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