Information Note on the Court’s case-law No. 141
May 2011
Khamzayev and Others v. Russia - 1503/02
Judgment 3.5.2011 [Section I]
Article 2
Positive obligations
Article 2-2
Use of force
Bombing of residential buildings by Russian military jets during Chechen war, with loss of civilian life: violation
[This summary also covers the judgment in the case of Kerimova and Others v. Russia, no 17170/04, 3 May 2011]
Facts – These two cases concern two aerial strikes in 1999 by Russian military aircraft on a town in Chechnya which resulted in civilian casualties. In the first attack, a bomb hit a block of flats in which Ms Kerimova lived with her family, killing her brother and husband and wounding her and her three minor children. In the second attack, the bombing resulted in the deaths of six people and injuries to sixteen others, including three of the applicants, and in the destruction or damage of forty houses.
In the proceedings before the European Court, the applicants complained that, as a result of the aerial attacks on the town, their family members had died, their lives had been put at risk and their houses and other property had been severely damaged. The Government denied that the first attack had been carried out by federal forces but acknowledged that the second attack had been and had resulted in human casualties and the destruction of property. They argued, however, that pinpoint aerial strikes had been necessary to enable the federal forces to regain control of the town and to suppress the criminal activity of illegal armed groups who were offering active and organised resistance, had fortified the town and were preparing for long-term defence. They maintained that using land troops would have led to considerable losses among federal servicemen.
Law – Article 2: Obligation to protect the right to life – The Court found it established on the evidence before it that Russian federal forces had carried out both aerial strikes. It was therefore for the State to account for the use of lethal force on both occasions and to demonstrate it had been used in pursuit of one of the aims set out in paragraph 2 of Article 2 and was absolutely necessary and therefore strictly proportionate to that aim. In that connection, the Court noted at the outset that the Government had provided only general information on the situation and had not furnished any details concerning the planning and control of the aerial strikes. They had also failed to submit relevant documents such as copies of plans of the operations, orders and reports. Indeed, certain documents of direct relevance had been destroyed within a few months or at most a year of the attacks, far too short a period to be acceptable on a matter of this importance.
The Court said that it might be prepared to accept that, faced with well-equipped extremists armed with large-yield weaponry and conducting large-scale military actions against federal forces, the Russian authorities had had no choice but to carry out aerial attacks and that their actions were in pursuit of one or more of the aims set out in paragraph 2 (a) and (c) of Article 2. However, it was not convinced from the materials before it that the necessary degree of care had been exercised to avoid or minimise, to the greatest extent possible, the risk of loss of life. The military’s insistent denial for a period of several years that the attacks had taken place or been planned had to cast doubt on the Government’s argument that pinpoint aerial strikes had been duly organised. No detailed explanation had been given as to whether information regarding the use of residential buildings for long-term defence and the presence of fighters there had been verified. The authorities did not appear to have taken any meaningful steps to inform civilians of the impending attacks or to secure their evacuation. The Court was not satisfied, on the evidence, that local residents had, as the Government alleged, been informed by leaflets and local mass-media of possible aerial strikes and artillery shelling, but even assuming they had been, such measures could hardly be regarded as adequate in a situation where the authorities knew they would be prevented from leaving by illegal fighters who intended to use them as human shields. While the Court accepted that the evacuation of inhabitants in such a situation might have been particularly difficult, the Government had not demonstrated that the authorities had taken any steps to assure their safety, such as attempting to organise a safe exit or negotiating their evacuation with the fighters. The Court was also struck by the decision to use large calibre high-explosive fragmentation bombs. The use of such weapons in a populated area was impossible to reconcile with the degree of caution expected from a law-enforcement body in a democratic society. In sum, the bombing with indiscriminate weapons of a residential quarter inhabited by civilians was manifestly disproportionate.
Conclusion: violation (unanimously).
The Court also found procedural violations of Article 2 on account of the authorities’ failure to conduct an effective investigation into the circumstances of the two attacks, and violations of Article 8 (damage to the applicants’ homes) and of Article 1 of Protocol No. 1 (damage to property).
Article 41: Awards ranging from EUR 4,500 to EUR 35,450 in respect of pecuniary damage, and from EUR 10,000 to EUR 120,000 in respect of non-pecuniary damage.
(See also Isayeva and Others v. Russia, no. 57947/00, and Isayeva v. Russia, no. 57950/00, both 24 February 2005, Information Note no. 72)
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This summary by the Registry does not bind the Court.
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