Isayeva and Others v. Russia

Avrupa İnsan Hakları Mahkemesi

Karar Metni

Information Note on the Court’s case-law No. 72

February 2005

Isayeva and Others v. Russia - 57947/00

Judgment 24.2.2005 [Section I]

Article 2

Article 2-2

Use of force

Bombing of convoy by Russian military jets during Chechen war, with loss of civilian life: violation

Article 35

Article 35-1

Exhaustion of domestic remedies

Effective domestic remedy

Relatives of civilian casualties in military attacks not required to pursue civil-law remedies: preliminary objection dismissed

Article 1 of Protocol No. 1

Article 1 para. 1 of Protocol No. 1

Peaceful enjoyment of possessions

Bombing of convoy by Russian military jets during Chechen war, leading to destruction of property: violation

Facts: The three applicants were part of a large convoy of vehicles that was trying to travel from Grozny to Ingushetia in October 1999, at a time of intense military operations in Chechnya. The road was blocked by the Russian military at the border between Chechnya and Ingushetia. After several hours it was announced that no passage would be permitted that day. The large convoy began to turn around. Shortly afterwards, two Russian military aircraft flew over the column and dropped bombs. The vehicle carrying the first applicant and her relatives stopped. Her two children and her daughter-in-law were the first to get out and were killed by a bomb blast. The first applicant was injured and lost consciousness. The second applicant was wounded in the same attack and witnessed the death of the first applicant’s relatives. While the applicants maintained that they had seen only civilians in the convoy, the Government asserted that the two aircraft had been flying reconnaissance when they had been attacked by large calibre infantry firearms fired from a truck in the convoy. The pilots were then granted authorisation to attack, destroying the truck and several other vehicles.

Law:Article 2 (obligation to protect the right to life) – It was undisputed that the applicants had been subjected to an aerial missile attack, during which the first applicant’s two children had been killed and the first and the second applicants wounded. While the Court’s ability to assess the legitimacy of the attack had been hampered by the Government’s failure to submit a copy of the complete investigation file, the materials submitted nevertheless allowed certain conclusions to be drawn as to whether the operation had been planned and conducted in such a way as to avoid or minimise, to the greatest extent possible, damage to civilians.

The Government had claimed that the aim of the operation had been to protect persons from unlawful violence within the meaning of Article 2 § 2 (a) of the Convention. Given the context of the conflict in Chechnya at the relevant time, the Court assumed that the military had reasonably considered that there had been an attack or a risk of attack, and that the air strike had been a legitimate response to that attack.

The applicants and other witnesses to the attack had testified that they had been aware in advance of the “humanitarian corridor” to Ingushetia for Grozny residents on 29 October 1999, and that there had been numerous civilian cars and thousands of people on the road. They also referred to an order from a senior military officer at the roadblock telling them to return to Grozny and to his giving them assurances as to their safety. The result of that order had been a traffic jam several kilometres long. This should have been known to the authorities who were planning military operations anywhere near the Rostov-Baku highway on that day and should have alerted them to the need for extreme caution as regards the use of lethal force. Yet it did not appear that those responsible for planning and controlling the operation, or the pilots themselves, had been aware of this. This had placed the civilians on the road, including the applicants, at a very high risk of being perceived as suitable targets by the military pilots. Each of the twelve missiles had created several thousand pieces of shrapnel and its impact radius had exceeded 300 metres. Anyone who had been at that time on that stretch of road would have been in mortal danger. The Government had failed to invoke the provisions of domestic legislation at any level governing the use of force by its agents in such situations, and this was also directly relevant to the proportionality of the response to the alleged attack. It followed that, even assuming that the military had been pursuing a legitimate aim, the operation had not been planned and executed with the requisite care for the lives of the civilians.

Conclusion: violation (unanimously).

Article 2 (obligation to conduct an effective investigation) – A criminal investigation had been opened only with considerable delay and the Court noted a number of serious and unexplained failures to act once the investigation had commenced. It did not appear, for example, that an operations record book, mission reports and other relevant documents produced immediately before or after the incident had been requested or reviewed. There appeared to have been no efforts to establish the identity and rank of the senior officer at the relevant military roadblock who had ordered the refugees to return to Grozny and allegedly promised them safety on the route, and to question him. No efforts had been made to collect information about the declaration of the “safe passage” for 29 October 1999, or to identify someone among the military or civil authorities who would have been responsible for the safety of the exit. The investigation had not taken sufficient steps to identify other victims and possible witnesses of the attack. There had also been a considerable delay before the applicants were questioned and granted victim status in the proceedings. The authorities had therefore failed to carry out an effective investigation.

Conclusion: violation (unanimously).

Article 3– No separate issue.

Article 1 of Protocol No. 1 – Mrs Bazayeva had been subjected to an aerial attack, which had resulted in destruction of her family’s vehicles and household items. This had constituted grave and unjustified interference with her peaceful enjoyment of her possessions.

Conclusion: violation (unanimously).

Article 13– The applicants’ complaints were clearly “arguable” for the purposes of Article 13. They should accordingly have been able to avail themselves of effective and practical remedies capable of leading to the identification and punishment of those responsible and to an award of compensation. In the present cases the criminal investigation had been ineffective in that it had lacked sufficient objectivity and thoroughness, and the effectiveness of any other remedy, including the civil remedies, had been consequently undermined.

Conclusion: violation (unanimously).

Article 41 – The Court awarded EUR 12,000 to the third applicant in respect of pecuniary damage. It further awarded EUR 25,000 to the first applicant, EUR 15,000 to the second applicant and EUR 5,000 to the third applicant in respect of non-pecuniary damage. It also made an award in respect of costs and expenses.

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