Information Note on the Court’s case-law No. 72
February 2005
Isayeva v. Russia - 57950/00
Judgment 24.2.2005 [Section I]
Article 2
Article 2-2
Use of force
Civilian casualties in air attack on convoy: 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
Facts:The applicant was previously a resident of the village of Katyr-Yurt in Chechnya. Following the take-over of Grozny by Russian forces in February 2000, a significant group of Chechen fighters entered her village. At that time, the population of the village had swelled to some 25,000 persons, including many who were displaced from other parts of the country. Chechen fighters arrived without any warning and the villagers were forced to take shelter from the heavy Russian bombardment that commenced shortly afterwards. When the shelling ceased the next day, the applicant and her family, along with other villagers, tried to flee. As their vehicles left the village, they were attacked from the air. The applicant’s son was fatally wounded. Three other persons travelling in the same vehicle were also wounded. The applicant also lost three young nieces in the attack, and her nephew was left disabled as a result of his injuries. She lost her house, her possessions and her car. A criminal investigation, opened in 2000, confirmed the applicant’s version of events. The investigation was closed in 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.
Law:Article 2 (obligation to protect the right to life)– The Court accepted that the situation that existed in Chechnya at the relevant time called for exceptional measures by the State. The undisputed presence of a very large group of armed fighters in Katyr-Yurt and their active resistance might have justified use of lethal force by the State agents, thus bringing the situation within paragraph 2 of Article 2. A balance nevertheless had to be struck between the aim pursued and the means employed to achieve it. Although the Court’s ability to make an assessment had been hampered by the fact that the Government had not disclosed most of the documents related to the military action, it was able to conclude that the military operation in Katyr-Yurt, aimed at either disarmament or destruction of the fighters, had not been spontaneous. The use of heavy free-falling high-explosion aviation bombs with a damage radius exceeding 1,000 metres in a populated area, outside wartime and without prior evacuation of the civilians, was impossible to reconcile with the degree of caution expected from a law-enforcement body in a democratic society. As no martial law and no state of emergency had been declared in Chechnya, and no derogation has been entered under Article 15 of the Convention the operation therefore had to be judged against a normal legal background. Even when faced with a situation where, as the Government had submitted, the villagers had been held hostage by a large group of fighters, the primary aim of the operation should have been to protect lives from unlawful violence. The use of indiscriminate weapons stood in flagrant contrast with this aim and could not be considered compatible with the standard of care prerequisite to an operation of this kind involving the use of lethal force by State agents.
While the documents reviewed by the Court confirmed that some information about a safe passage had been conveyed to the population, there was not a single reference anywhere to indicate that such a passage had been observed. The Government’s failure to invoke the provisions of any domestic legislation governing the use of force by State agents in such situations was, in the circumstances, also directly relevant to the Court’s considerations with regard to the proportionality of the response to the attack. To sum up, accepting that the military operation had pursued a legitimate aim, the Court did not find that it had been planned and executed with the requisite care for the lives of the civilian population.
Conclusion: violation (unanimously).
Article 2 (obligation to conduct an effective investigation) – An investigation had been opened only upon communication of the complaint to the respondent Government in September 2000. The Court observed several serious flaws in the part of the investigation file submitted to it, such as the lack of reliable information about the declaration of the “safe passage” for civilians. No persons had been identified among the military or civil authorities as responsible for the declaration of the corridor and for the safety of those using it. No clarification had been provided on the absence of coordination between the announcements of a “safe exit” and the apparent lack of consideration given to this by the military in planning and executing their mission.
Information about the decision by which the proceedings had been closed and the decisions to grant victim status quashed had not been communicated to the applicant and other victims directly, as the domestic relevant legislation prescribed. The Court thus did not accept that the applicant had been properly informed of the proceedings and could have challenged its results. The authorities had therefore failed to carry out an effective investigation into the circumstances of the military operation.
Conclusion: violation (unanimously).
Article 13 – The applicant’s complaint was clearly “arguable” for the purposes of Article 13. She should accordingly have been able to avail herself of effective and practical remedies capable of leading to the identification and punishment of those responsible and to an award of compensation, for the purposes of Article 13. Nevertheless, 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 (6 votes to 1).
Article 41 – The Court awarded the applicant EUR 18,710 in respect of pecuniary damages and EUR 25,000 in respect of non-pecuniary damages. It also made an award for costs and expenses.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
Click here for the Case-Law Information Notes
Full & Egal Universal Law Academy