ECHR, Art. 2; ECtHR, Isayeva v. Russia, App. No. 57950/00 (2005), excerpts | Samuel Moyn | August 02, 2016

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ECHR, Art. 2; ECtHR, Isayeva v. Russia, App. No. 57950/00 (2005), excerpts

European Court of Human Rights

Isayeva V. Russia, App. No. 57950 (2005)

PROCEDURE

1. The case originated in an application (no. 57950/00) 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 Zara Adamovna Isayeva (“the applicant”), on 27 April 2000.
2. The applicant, who had been granted legal aid, was represented by Mr Kirill Koroteyev, a lawyer of Memorial, a Russian Human Rights NGO based in Moscow, and Mr William Bowring, a lawyer practising in London. The Russian Government (“the Government”) were represented by Mr P.A. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.
3. The applicant alleged that she was a victim of indiscriminate bombing by the Russian military of her native village of Katyr-Yurt on 4 February 2000. As a result of the bombing, the applicant's son and three nieces were killed. She alleged a violation of Articles 2 and 13 of the Convention….

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

9.  The applicant was born in 1954 and is a resident of Katyr-Yurt, Achkhoy-Martan district, Chechnya.

A.  The facts

10.  The facts surrounding the bombardment of Katyr-Yurt and the ensuing investigation were partially disputed. The Court therefore asked the Government to produce copies of the entire investigation file in relation to the bombardment and the civilian casualties. The Court also asked the applicant to produce additional documentary evidence in support of her allegations.

11.  The parties' submissions on the facts concerning the circumstances of the attack are set out in Sections 1 and 2 below. A description of the materials submitted to the Court is contained in Part B.

1.  The attack on Katyr-Yurt

12.  In autumn 1999 Russian federal military forces launched operations in Chechnya. In December 1999 rebel fighters (“boyeviki”) were blocked by the advancing federal forces in Grozny, where fierce fighting took place.

13.  The applicant submits that at the end of January 2000 a special operation was planned and executed by the federal military commanders in order to entice the rebel forces from Grozny. Within that plan, the fighters were led to believe that a safe exit would be possible out of Grozny towards the mountains in the south of the republic. Money was paid by the fighters to the military for information about the exit and for the safe passage. Late at night on 29 January 2000 the fighters left the besieged city and moved south. They were allowed to leave the city. However, once they had left the city they were caught in minefields and the artillery and air force bombarded them along the route.

14.  The applicant referred to the published memoirs of Major-General Viktor Barsukov and to the interview with Major-General Shamanov, the commanders of the operation, concerning its details (see §§ 111-112 below).

15.  A significant group of Chechen fighters – ranging from several hundred to four thousand persons - entered the village of Katyr-Yurt early on the morning of 4 February 2000. According to the applicant, the arrival of the fighters in the village was totally unexpected and the villagers were not warned in advance of the ensuing fighting or about safe exit routes.

16.  The applicant submitted that the population of Katyr-Yurt at the relevant time was about 25,000 persons, including local residents and internally displaced persons (IDPs) from elsewhere in Chechnya. She also submitted that their village had been declared a “safe zone”, which attracted people fleeing from fighting taking place in other districts of Chechnya.

17.  The applicant submitted that the bombing started suddenly in the early hours of 4 February 2000. The applicant and her family hid in the cellar of their house. When the shelling subsided at about 3 p.m. the applicant and her family went outside and saw that other residents of the village were packing their belongings and leaving, because the military had apparently granted safe passage to the village's residents. The applicant and her family, together with their neighbours, entered a Gazel minibus and drove along Ordzhonikidze road, heading out of the village. While they were on the road, the planes reappeared, descended and bombed cars on the road. This occurred at about 3.30 p.m.

18.  The applicant's son, Zelimkhan Isayev (aged 23) was hit by shrapnel and died within a few minutes. Three other persons in the vehicle were also wounded. During the same attack the applicant's three nieces were killed: Zarema Batayeva (aged 15), Kheda Batayeva (aged 13) and Marem (also spelled Maryem) Batayeva (aged 6). The applicant also submitted that her nephew, Zaur Batayev, was wounded on that day and became handicapped as a result.

19.  The applicant submitted that the bombardment was indiscriminate and that the military used heavy and indiscriminate weapons, such as heavy aviation bombs and multiple rocket launchers. In total, the applicant submits that over 150 people were killed in the village during the bombing, many of whom were displaced persons from elsewhere in Chechnya.

20.  The applicant and the wounded members of her family were later taken by a relative to the town of Achkhoy-Martan. They were afraid to return to Katyr-Yurt, and had to bury the applicant's son in Achkhoy-Martan.

21.  The applicant claims that when they were allowed to return to the village some time later, she found her house looted and destroyed. Their car was burnt in the garage.

22.  The applicant stated that no safe exit routes had been provided for the village residents before or after the bombardment started. Those who managed to get out under fire and reach the military road-block were detained there for some time.

23.  According to the Government, at the beginning of February 2000 a large group of Chechen fighters, headed by the field commander Gelayev and numbering over 1,000 persons forced their way south after leaving Grozny. On the night of 4 February 2000 they captured Katyr-Yurt. The fighters were well-trained and equipped with various large-calibre firearms, grenade- and mine-launchers, snipers' guns and armoured vehicles. Some of the population of Katyr-Yurt had already left by that time, whilst others were hiding in their houses. The fighters seized stone and brick houses in the village and converted them into fortified defence points. The fighters used the population of Katyr-Yurt as a human shield.

24.  Early in the morning of 4 February 2000 a detachment of special forces from the Ministry of the Interior was ordered to enter Katyr-Yurt because information had been received about the fighters' presence in the village. The detachment entered the village, but after passing the second line of houses they were attacked by the fighters, who offered fierce resistance using all kinds of weapons. The unit sustained casualties and had to return to its positions.

25.  The federal troops gave the fighters an opportunity to surrender, which they rejected. A safe passage was offered to the residents of Katyr-Yurt. In order to convey the information about safe exit routes, the military authorities informed the head of the village administration. They also used a mobile broadcasting station which entered the village and a Mi-8 helicopter equipped with loudspeakers. In order to ensure order amongst the civilians leaving the village, two roadblocks were established at the exits from the village. However, the fighters prevented many people from leaving the village.

26.  Once the residents had left, the federal forces called on the air force and the artillery to strike at the village. The designation of targets was based on incoming intelligence information. The military operation lasted until 6 February 2000. The Government submitted that some residents remained in Katyr-Yurt because the fighters did not allow them to leave. This led to significant civilian casualties - 46 civilians were killed, including Zelimkhan Isayeb, Zarema Batayeva, Kheda Batayeva and Marem Batayeva , and 53 were wounded.

27.  According to the Government's observations on the admissibility of the complaint, 53 federal servicemen were killed and over 200 were wounded during the assault on Katyr-Yurt. The Government also submitted that, as a result of the military operation, over 180 fighters were killed and over 240 injured. No information about combatant casualties on either side was contained in their observations on the merits. The criminal investigation file reviewed by the Court similarly contains no information on non-civilian casualties.

28.  The events at the beginning of February 2000 were reported in the Russian and international media and in NGO reports. Some of the reports spoke of serious civilian casualties in Katyr-Yurt and other villages during the military operation at the end of January - beginning of February 2000.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

a) The Constitutional provisions

116.  Article 20 of the Constitution of the Russian Federation protects the right to life.

117.  Article 46 of the Constitution guarantees the protection of rights and liberties in a court of law by providing that the decisions and actions of any public authority may be appealed to a court of law. Section 3 of the same Article guarantees the right to apply to international bodies for the protection of human rights once domestic legal remedies have been exhausted.

118.  Articles 52 and 53 provide that the rights of victims of crime and abuse of power shall be protected by law. They are guaranteed access to the courts and compensation by the State for damage caused by the unlawful actions of a public authority.

119.  Article 55 (3) provides for the restriction of rights and liberties by federal law, but only to the extent required for the protection of the fundamental principles of the constitutional system, morality, health, rights and lawful interests of other persons, the defence of the country and the security of the state.

120.  Article 56 of the Constitution provides that a state of emergency may be declared in accordance with federal law. Certain rights, including the right to life and freedom from torture, may not be restricted.

b)  The Law on Defence

121.  Section 25 of the Law on Defence of 1996 (Федеральный закон от 31 мая 1996 г. N 61-ФЗ "Об обороне") provides that “supervision of adherence to the law and investigations of crimes committed in the Armed Forces of the Russian Federation, other Forces, military formations and authorities shall be exercised by the General Prosecutor of the Russian Federation and subordinate prosecutors. Civil and criminal cases in the Armed Forces of the Russian Federation, other forces, military formations and authorities shall be examined by the courts in accordance with the legislation of the Russian Federation.”

c)  The Law on the Suppression of Terrorism

122.  The 1998 Law on the Suppression of Terrorism (Федеральный закон от 25 июля 1998 г. № 130-ФЗ «О борьбе с терроризмом») provides as follows:

“Section 3. Basic Concepts

For the purposes of the present Federal Law the following basic concepts shall be applied:

... 'suppression of terrorism' shall refer to activities aimed at the prevention, detection, suppression and minimisation of the consequences of terrorist activities;

'counter-terrorist operation' shall refer to special activities aimed at the prevention of terrorist acts, ensuring the security of individuals, neutralising terrorists and minimising the consequences of terrorist acts;

'zone of a counter-terrorist operation' shall refer to an individual land or water surface, means of transport, building, structure or premises with adjacent territory where a counter-terrorist operation is conducted; ...

Section 13. Legal regime in the zone of an anti-terrorist operation

1. In the zone of an anti-terrorist operation, the persons conducting the operation shall be entitled:

2) to check the identity documents of private persons and officials and, where they have no identity documents, to detain them for identification;

3) to detain persons who have committed or are committing offences or other acts in defiance of the lawful demands of persons engaged in an anti-terrorist operation, including acts of unauthorised entry or attempted entry to the zone of the anti-terrorist operation, and to convey such persons to the local bodies of the Ministry of the Interior of the Russian Federation;

4) to enter private residential or other premises ... and means of transport while suppressing a terrorist act or pursuing persons suspected of committing such an act, when a delay may jeopardise human life or health;

5) to search persons, their belongings and vehicles entering or exiting the zone of an anti-terrorist operation, including with the use of technical means; ...

Section 21. Exemption from liability for damage

In accordance with and within the limits established by the legislation, damage may be caused to the life, health and property of terrorists, as well as to other legally-protected interests, in the course of conducting an anti-terrorist operation. However, servicemen, experts and other persons engaged in the suppression of terrorism shall be exempted from liability for such damage, in accordance with the legislation of the Russian Federation.”…

f)  Situation in the Chechen Republic

133.  No state of emergency or martial law has been declared in Chechnya. No federal law has been enacted to restrict the rights of the population of the area. No derogation under Article 15 of the Convention has been made.

g)  Amnesty

134.  On 6 June 2003 the State Duma adopted Decree no. 4124-III, by which an amnesty was granted in respect of criminal acts committed by the participants to the conflict on both sides in the period between December 1993 and June 2003. The amnesty does not apply to serious crimes such as murder.

THE LAW…

II.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

162.  The applicant alleged that her right to life and the right to life of her son and other relatives was violated by the actions of the military. She also submitted that the authorities had failed to carry out an effective and adequate investigation into the attack and to bring those responsible to justice. She relied on Article 2 of the Convention, which provides:

“1.  Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2.  Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a)  in defence of any person from unlawful violence;

(b)  in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c)  in action lawfully taken for the purpose of quelling a riot or insurrection.”

A.  The alleged failure to protect life

1.  Arguments of the parties

a)  The applicant

163.  The applicant submitted that the way in which the military operation in Katyr-Yurt had been planned, controlled and executed constituted a violation of Article 2. She submitted that that the use of force which resulted in the death of her son and nieces and the wounding of herself and her relatives was neither absolutely necessary nor strictly proportionate.

164.  The applicant stated that the commanders of the Russian federal forces must have been aware of the route taken by the rebel forces out of Grozny and could have reasonably expected their arrival at Katyr-Yurt, and either prevented it or warned the civilian population. Moreover, there is evidence to suggest that they had knowingly and intentionally organised a passage for the rebels which drew them into villages, including Katyr-Yurt, where they were attacked.

165.  Once the rebels were in the village, the military used indiscriminate weapons such as “Grad” multiple missile-launchers, FAB-250 and FAB-500 heavy aviation bombs with a destruction radius exceeding 1,000 metres and “Buratino” thermobaric, or vacuum, bombs. In the applicant's view, the latter are prohibited by international law on conventional weapons. These weapons cannot be regarded as discriminate, nor as appropriate for the declared aim of “identity checks”. No safe passage was provided for the civilians. Civilians who left the village did so under fire and were detained at the roadblock. As to the military advantage gained by the operation, the applicant referred to the absence of any specific data to that effect in the investigation file. It was not disputed that most of the rebels, together with their commanders, had escaped the village despite the heavy bombardment. There was no exact information about the number or descriptions of the fighters killed or captured during the operation, a description or list of weapons seized etc.

166.  The applicant submitted that the military experts based their conclusion about the appropriateness of the attack on legal acts which permitted or even incited the use of indiscriminate weapons, such as Article 19 of the Army Field Manual, which ordered commanding officers to make use of any available weapons in order to achieve victory.

167.  The applicant also referred to the third party submissions made in the cases of Isayeva v. Russia, Yusupova v. Russia and Bazayeva v. Russia (nos. 57947/00, 57948/00 and 57949/00), in which Rights International, a USA-based NGO, summarised for the Court the relevant rules of international humanitarian law governing the use of force during attacks on mixed combatant/civilian targets during a non-international armed conflict….

b)  The Government

169.  The Government did not dispute the fact of the attack or the fact that the applicant's son and her three nieces had been killed and that the applicant and her other relatives had been wounded.

170.  The Government argued that the attack and its consequences were legitimate under Article 2 § 2 (a), i.e. they had resulted from the use of force absolutely necessary in the circumstances for protection of a person from unlawful violence. The use of lethal force was necessary and proportionate to suppress the active resistance of the illegal armed groups, whose actions were a real threat to the life and health of the servicemen and civilians, as well as to the general interests of society and the state. This threat could not have been eliminated by other means and the actions by the operation's command corps had been proportionate. The combat weapons were specifically directed against previously-designated targets.

171.  The Government further submitted that the applicant and other civilians were properly informed about the ensuing assault and the need to leave the village, for which purpose the military used a helicopter and a mobile broadcasting station equipped with loudspeakers. Military checkpoints were placed at the two exits from Katyr-Yurt. However, the federal forces' attempts to organise a safe exit for the population were sabotaged by the actions of the fighters, who prevented the residents from leaving and provoked fire from the federal forces, using them as a “human shield”. The documents of the criminal investigation file demonstrated, in the Government's opinion, that the majority of the civilian casualties had been sustained at the initial stage of the special operation, i.e. on 4 February 2000, and in the centre of the village, where the most severe fighting between the federal troops and the insurgents occurred.

2.  The Court's evaluation

a)  General principles

172.  Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, from which in peacetime no derogation is permitted under Article 15. Together with Article 3, it also enshrines one of the basic values of the democratic societies making up the Council of Europe. The circumstances in which deprivation of life may be justified must therefore be strictly construed. The object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective.

173.  Article 2 covers not only intentional killing but also the situations in which it is permitted to “use force” which may result, as an unintended outcome, in the deprivation of life. However, the deliberate or intended use of lethal force is only one factor to be taken into account in assessing its necessity. Any use of force must be no more than “absolutely necessary” for the achievement of one or more of the purposes set out in sub-paragraphs (a) to (c). This term indicates that a stricter and more compelling test of necessity must be employed than that normally applicable when determining whether State action is “necessary in a democratic society” under paragraphs 2 of Articles 8 to 11 of the Convention. Consequently, the force used must be strictly proportionate to the achievement of the permitted aims.

174.  In the light of the importance of the protection afforded by Article 2, the Court must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances.

175.  In particular, it is necessary to examine whether the operation was planned and controlled by the authorities so as to minimise, to the greatest extent possible, recourse to lethal force. The authorities must take appropriate care to ensure that any risk to life is minimised. The Court must also examine whether the authorities were not negligent in their choice of action (see McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, pp. 45-46, §§ 146-50 and p. 57, § 194, Andronicou and Constantinou v. Cyprus, judgment of 9 October 1997, Reports 1997-VI, pp. 2097-98, § 171, p. 2102, § 181, p. 2104, § 186, p. 2107, § 192 and p. 2108, § 193 and Hugh Jordan v. the United Kingdom, no. 24746/95, §§ 102 – 104, ECHR 2001-III). The same applies to an attack where the victim survives but which, because of the lethal force used, amounted to attempted murder (see, mutatis mutandis, Yaşa v. Turkey, cited above, p. 2431, § 100; Makaratzis v. Greece [GC], no. 50385/99, § 49-55, 20 December 2004).

176.  Similarly, the State's responsibility is not confined to circumstances where there is significant evidence that misdirected fire from agents of the state has killed a civilian. It may also be engaged where they fail to take all feasible precautions in the choice of means and methods of a security operation mounted against an opposing group with a view to avoiding and, in any event, minimising, incidental loss of civilian life (see Ergi v. Turkey, judgment of 28 July 1998, Reports 1998-IV, p. 1778, § 79).…

b)  Application in the present case

179.  It is undisputed that the applicant and her relatives were attacked when trying to leave the village of Katyr-Yurt through what they had perceived as safe exit from heavy fighting. It is established that an aviation bomb dropped from a Russian military plane exploded near their minivan, as a result of which the applicant's son and three nieces were killed and the applicant and her other relatives were wounded. This brings the complaint within the ambit of Article 2. The Government suggested that the use of force was justified in the present case under paragraph 2 (a) of Article 2 of the Convention being absolutely necessary due to the situation in Katyr-Yurt at the time.

180.  The Court accepts that the situation that existed in Chechnya at the relevant time called for exceptional measures by the State in order to regain control over the Republic and to suppress the illegal armed insurgency. Given the context of the conflict in Chechnya at the relevant time, those measures could presumably include the deployment of army units equipped with combat weapons, including military aviation and artillery. The presence of a very large group of armed fighters in Katyr-Yurt, and their active resistance to the law-enforcement bodies, which are not disputed by the parties, may have justified use of lethal force by the agents of the State, thus bringing the situation within paragraph 2 of Article 2.

181.  Accepting that the use of force may have been justified in the present case, it goes without saying that a balance must be achieved between the aim pursued and the means employed to achieve it. The Court will now consider whether the actions in the present case were no more than absolutely necessary for achieving the declared purpose. In order to do so the Court will examine, on the basis of the information submitted by the parties and in view of the above enumerated principles (see §§ 172-178 above), whether the planning and conduct of the operation were consistent with Article 2 of the Convention.

182.  At the outset it has to be stated that the Court's ability to make an assessment of how the operation was planned and executed is hampered by the lack of information before it. The Government did not disclose most of the documents related to the military action. No plan of the operation, no copies of orders, records, log-book entries or evaluation of the results of the military operation have been submitted and, in particular, no information has been submitted to explain what was done to assess and prevent possible harm to civilians in Katyr-Yurt in the event of deployment of heavy combat weapons.

183.  Bearing this in mind, the documents submitted by the parties and the investigation file nevertheless allow the Court to draw certain conclusions as to whether the operation was planned and conducted in such a way as to avoid or minimise, to the greatest extent possible, harm to civilians, as is required by Article 2 of the Convention.

184.  The applicant submits that the military must have known in advance about the very real possibility of the arrival of a large group of fighters in Katyr-Yurt, and further submits that they even incited such an arrival. The Court notes a substantial amount of evidence which seems to suggest that the fighters' arrival was not so unexpected for the military that they had no time to take measures to protect the villagers from being caught up in the conflict.

185.  The interview of General Shamanov, given on 5 February 2000, referred to a successful plan to incite the armed rebels from Grozny and to prevent their breaking through to the mountains by creating a “corridor” which would be tightly controlled by the federal forces in the area under the responsibility of the Western Zone Alignment (see § 112 above). In his statement to the investigation Mr Shamanov stated that the division commanded by Major-General Nedobitko was deployed to block Katyr-Yurt, as reconnaissance information had been received to the effect that groups of fighters were slipping through (see § 68). The statement by an OMON serviceman stationed in Katyr-Yurt referred to a warning received from his superiors on 3 February 2000 that fighters could be expected to arrive in Katyr-Yurt or Valerik (see § 79 above). At least two civilian witnesses spoke of military roadblocks at the exits from the village which exercised tight control over movements into and out of Katyr-Yurt at least a few days before 4 February 2000 (see §§ 54 and 110 above). Thus, it is difficult to suppose that the fighters' arrival in Katyr-Yurt early in the morning of 4 February 2000, and their number, were a surprise for the commanders of the operation.

186.  In contrast, the applicant and other villagers questioned stated that they had felt safe from fighting due to the substantial military presence in the district, roadblocks around the village and the apparent proclamation of the village as a “safety zone”. An OMON detachment was stationed directly in Katyr-Yurt. The villagers' statements describe the arrival of fighters and the ensuing attack as something unexpected and not foreseen (see §§ 15, 59, 110 above).

187.  The Court has been given no evidence to indicate that anything was done to ensure that information about these events was conveyed to the population before 4 February 2000, either directly or through the head of administration. However, the fact that the fighters could have reasonably been expected, or even incited, to enter Katyr-Yurt clearly exposed its population to all kinds of dangers. Given the availability of the above information, the relevant authorities should have foreseen these dangers and, if they could not have prevented the fighters' entry into the village, it was at least open to them to warn the residents in advance. The head of the village administration, whose role in communicating between the military and the residents of the village appears to have been perceived as a key one, was questioned only once and no questions were put to him about the circumstances of the fighters' arrival or about the organisation of a safe exit for residents.

188.  Taking into account the above elements and the reviewed documents, the Court concludes that the military operation in Katyr-Yurt was not spontaneous. The operation, aimed at either disarmament or destruction of the fighters, was planned some time in advance. In his testimony Major-General Nedobitko stated that the use of artillery and aviation was foreseen as an option and discussed with General Shamanov (see § 74 above). The forward air controller stated that he had been deployed to the command centre near Katyr-Yurt a day before the beginning of the operation (see § 88 above).

189.  The Court regards it as evident that when the military considered the deployment of aviation equipped with heavy combat weapons within the boundaries of a populated area, they also should have considered the dangers that such methods invariably entail. There is however no evidence to conclude that such considerations played a significant place in the planning. …

190.  Once the fighters' presence and significant number had become apparent to the authorities, the operation's commanders proceeded with the variant of the plan which involved a bomb and missile strike at Katyr-Yurt. Between 8 and 9 a.m. on 4 February 2000 Major-General Nedobitko called in fighter jets, without specifying what load they should carry. The planes, apparently by default, carried heavy free-falling high-explosion aviation bombs FAB-250 and FAB-500 with a damage radius exceeding 1,000 metres. According to the servicemen's statements, bombs and other non-guided heavy combat weapons were used against targets both in the centre and on the edges of the village (see §§ 70, 91 above).

191.  The Court considers that using this kind of weapon in a populated area, outside wartime and without prior evacuation of the civilians, is impossible to reconcile with the degree of caution expected from a law-enforcement body in a democratic society. No martial law and no state of emergency has been declared in Chechnya, and no derogation has been made under Article 15 of the Convention (see § 133). The operation in question therefore has to be judged against a normal legal background. Even when faced with a situation where, as the Government submit, the population of the village had been held hostage by a large group of well-equipped and well-trained fighters, the primary aim of the operation should be to protect lives from unlawful violence. The massive use of indiscriminate weapons stands in flagrant contrast with this aim and cannot be considered compatible with the standard of care prerequisite to an operation of this kind involving the use of lethal force by State agents.…

201.  The Court finds that there has been a violation of Article 2 of the Convention in respect of the responding State's obligation to protect the right to life of the applicant, her son Zelimkhan Isayev and her three nieces, Zarema Batayeva, Kheda Batayeva and Marem Batayeva.…

233.  The applicant alleged that as a result of the attack at the village her house and a family car were destroyed. She claimed that that the value of the car was EUR 11,000 and the value of the house and household items was EUR 1,500.

234.  Under the same head the applicant also claimed the loss of earning of her deceased son, Zelimkhan Isayev. She submitted that he was earning about EUR 100 per month as a car mechanic. The applicant, who was born in 1954, is due to retire in 2009 under Russian law. Taking the average life expectancy for women in Russia to be 70 years, the applicant assumed that she could be financially dependant on her son for about 15 years. His earnings for that period, taking into account an average 15 % inflation rate for Russia, would constitute EUR 20,700. The applicant could count on an average of 30 % of that sum, which would constitute EUR 6,210.

235.  The Government found the amount claimed to be exaggerated….

237.  The applicant lost her son and her three nieces, all of whom were very young. She herself was wounded. She was deeply shocked by the attack. She asked the Court to award her EUR 25,000 by way of non-pecuniary damages.

238.  The Government found the amount claimed to be exaggerated.

239.  The Court considers that an award should be made in respect of non-pecuniary damage bearing in mind the seriousness of the violations it has found in respect of Articles 2 and 13 of the Convention.

240.  The Court awards EUR 25,000 to the applicant as non-pecuniary damage, plus any tax that may be chargeable on that amount.

 

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August 02, 2016

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Samuel Moyn

Harvard Law School

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