088
24.2.2005
Press release issued by the Registrar
CHAMBER JUDGMENTS IN SIX APPLICATIONS AGAINST
The
European Court of Human Rights (First Section) has today notified in writing
three separate judgments[1] in the
cases of Khashiyev and Akayeva v. Russia (nos. 57942/00 and 57945/00), Isayeva, Yusupova and Bazayeva v.
in the case of Khashiyev and Akayeva
Under Article 41 of the Convention (just
satisfaction) the Court unanimously awarded 15,000 euros (EUR) to the first
applicant and EUR 20,000 to the second applicant in respect of
non-pecuniary damage, and EUR 10,927 in respect of costs and expenses.
in the case of Isayeva,
Yusupova and Bazayeva,
unanimously,
Under Article 41 of the Convention the
Court awarded EUR 12,000 to the third applicant in respect of pecuniary damage;
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; and EUR 10,926
in respect of costs and expenses.
in the case of Zara Isayeva
Under Article 41 of the Convention the Court
unanimously awarded EUR 18,710 in respect of pecuniary damage,
EUR 25,000 in respect of non-pecuniary damage and EUR 10,926 for
costs and expenses.
1. Summary of the facts
Magomed
Khashiyev and Rosa Akayeva, who were born in 1942 and 1955 respectively, were
at the material time residents of
Medka
Isayeva, Zina Yusupova and Libkan Bazayeva, born in 1953, 1955 and 1949
respectively, lived in
Zara
Isayeva was born in 1954 and lived in
2. Procedure and composition of the Court
The
applications Khashiyev v. Russia and Akayeva v. Russia were lodged with
the European Court of Human Rights respectively on 25 May and 20 April 2000. Isayeva
v. Russia, Yusupova v. Russia
and Bazayeva
v. Russia were lodged with the Court respectively on 25, 27 and 26
April 2000 and Zara Isayeva v. Russia on 27 April 2000. They were declared
admissible on 19 December 2002. A hearing took place in public in the
Judgment
was delivered by a Chamber of 7 judges, composed as follows:
Christos Rozakis
(Greek), President,
Peer Lorenzen (Danish),
Giovanni Bonello (Maltese),
Françoise Tulkens (Belgian),
Nina Vajić (Croatian),
Anatoli Kovler (Russian),
Vladimiro Zagrebelsky (Italian), judges,
and also Søren Nielsen, Section
Registrar.
3. Summary of the judgments[2]
Complaints
Mr Khashiyev and Ms Akayeva alleged that
their relatives had been tortured and murdered by members of the Russian Army,
that the investigation into their deaths had been ineffective and that they had
had no access to effective remedies at national level. They relied on
Article 2 (right to life), Article 3 (prohibition of torture and inhuman or
degrading treatment) and Article 13 (right to an effective remedy) of the
European Convention on Human Rights.
Ms Isayeva, Ms Yusupova and Ms Bazayeva claimed that their relatives’
and their own right to life and to protection from inhuman and degrading
treatment had been violated. Ms Bazayeva also complained that the destruction
of her cars containing the family’s belonging constituted an infringement of
her property rights. The applicants further argued that the investigation
undertaken had been ineffective and that they had had no access to an effective
remedy at national level. They relied on Articles 2, 3 and 13 of the Convention
and (Ms Bazayeva) Article 1 of Protocol No. 1 (protection of property).
Zara Isayeva claimed that her relatives’ right to life had been
violated, that the investigation had been ineffective and that she had had no
access to an effective remedy. She relied on Articles 2 and 13 of the
Convention.
Decision of the Court
The
Government’s preliminary objection in all three cases (exhaustion of domestic
remedies)
The Government
submitted that Russian law provided two avenues of recourse for the victims of
illegal and criminal acts attributable to the State or its agents, namely civil
procedure and criminal remedies.
As
regards a civil action, two possibilities had been advanced: an application to the
Supreme Court or filing a complaint with other courts. However, at the date of
the admissibility decisions in these three cases, no example had been produced of
the Supreme Court or other courts being able, in the absence of results from
the criminal investigation, to consider the merits of a claim relating to
alleged serious criminal actions.
In the
course of the proceedings Mr Khashiyev had brought an action before a district court.
However, despite a positive outcome in the form of a financial award, without
the benefit of the conclusions of a criminal investigation, this action was incapable
of leading to findings as to the perpetrators of assaults or their
responsibility.
The
applicants had accordingly not been obliged to pursue the civil remedies, and
the preliminary objection was in that respect unfounded.
As to
criminal law remedies, the objection raised issues concerning the effectiveness
of the criminal investigation and was joined by the Court to the merits.
Alleged
violation of Article 2 of the Convention
The
applicants in all three cases alleged failure on the part of the State to
protect the right to life in breach of Article 2. They also submitted that the
authorities had failed to carry out an effective and adequate investigation.
A. The alleged failure to protect life
The Court set out its case-law in this area
and notably the following general principles. First, in assessing evidence as
to the violation of Article 2, the relevant standard of proof was “beyond
reasonable doubt”. The Court recalled, however, that strong presumptions of
fact arose in respect of injuries and death occurring during detention. In such
circumstances the burden of proof lay with the authorities to provide a
satisfactory and convincing explanation. It then noted that, where potentially
lethal force was used in pursuit of a permitted aim, the force used had to be
strictly proportionate to the achievement of that aim. Operations involving
potential use of lethal force had to be planned and controlled by the
authorities so as to minimise the risk to life. Authorities had to take all
feasible precautions in the choice of means and methods with a view to avoiding
and, in any event, minimising incidental loss of civilian life.
Case of Khashiyev and Akayeva
The Court
first noted that, in reply to its request, the Government had submitted only
about two-thirds of the criminal investigation file. The rest was, in the
Government’s view, irrelevant. It was inherent in proceedings related to cases
of this nature that in certain instances solely the respondent Government had access
to information capable of corroborating or refuting the applicant’s allegations.
A failure on the Government’s part to submit such information without a
satisfactory explanation could give rise to the drawing of inferences as to the
well-founded character of such allegations.
On the
basis of the material in its possession the Court found it established that the
applicants’ relatives had been killed by military personnel. No other plausible
explanation as to the circumstances of the deaths had been forthcoming, nor had
any justification been relied on in respect of the use of lethal force by the
State agents. There had been accordingly a violation of Article 2 of the
Convention.
Case of Isayeva,
Yusupova and Bazayeva
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.
At the
outset the Court noted that its ability to assess the legitimacy of the attack,
as well as how the operation had been planned and executed, had been hampered
by the failure to submit a copy of the complete investigation file. The
documents submitted by the parties, including the part of the investigation
file which had been disclosed, 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, which had resulted in the
losses suffered by the applicants, had been to protect persons from unlawful
violence within the meaning of Article 2 § 2 (a) of the
Convention. In the absence of corroborated evidence that any unlawful violence had
been threatened or likely, the Court retained certain doubts as to whether the
aim could at all be applicable. However, given the context of the conflict in
The
applicants and other witnesses to the attack had testified that they had been aware
in advance of the “humanitarian corridor” to Ingushetia for
This
should have been known to the authorities who were planning military operations
anywhere near the Rostov-Baku highway on 29 October 1999 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.
A very
powerful weapon had been used - according to the domestic investigation, 12
S-24 non-guided air-to-ground missiles had been fired. On explosion, each
missile created several thousand pieces of shrapnel and its impact radius
exceeded 300 metres. Anyone who had been at that time on that stretch of road would
have been in mortal danger.
In
addition, 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 that the military had been pursuing a
legitimate aim, the Court did not accept that the operation of 29 October 1999 had
been planned and executed with the requisite care for the lives of the civilians.
There had therefore been a violation of Article 2 of the Convention.
Case of Zara Isayeva
It was undisputed that the applicant and her
relatives had been attacked when trying to leave Katyr-Yurt through what they
had perceived as a safe exit as they fled from heavy fighting. A bomb dropped
from a military plane had exploded near their minivan, as a result of which the
applicant’s son and three nieces had been killed and the applicant and her
other relatives had been wounded.
The Government had suggested that the use of
force had been justified under paragraph 2 (a) of Article 2 of the
Convention.
The Court accepted that the situation that
existed in
At the
outset the Court observed that its 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. The documents submitted by the parties and the investigation
file 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, harm to civilians, as was required by
Article 2 of the Convention.
The Court concluded that the military
operation in Katyr-Yurt, aimed at either disarmament or destruction of the
fighters, had not been spontaneous. The Court regarded it as evident that when
the military had contemplated the deployment of aviation equipped with heavy
combat weapons within the boundaries of a populated area, they should also have
considered the inherent dangers. There was however no evidence to conclude that
such considerations played a significant role in the planning.
The military used heavy free-falling
high-explosion aviation bombs FAB-250 and FAB-500 with a damage radius
exceeding 1,000 metres. Using this kind of weapon 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.
It was further noted that no martial law and
no state of emergency had been declared in
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 be 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.
The documents reviewed by the Court confirmed
that some information about a safe passage had been conveyed to the population.
However, no document or statement by the military referred to an order to stop
the attack or to reduce its intensity. While there were numerous references in
the servicemen’s statements to the declaration of a humanitarian corridor,
there was not a single one which referred to its observance.
The military experts’ report of
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 operation in
Katyr-Yurt on 4-7 February 2000 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. There had therefore been a violation of
Article 2.
B. The alleged inadequacy of the
investigation
The Court
recalled its case-law in this area and notably the need, in cases involving
state agents or bodies, to ensure their accountability for deaths occurring
under their responsibility. The obligations under Article 2 could not be satisfied
merely by awarding damages. The investigation had to be timely, effective and
not to be dependent for its progress on the initiative of the survivors or the
next of kin.
Case of Khashiyev and Akayeva
An
investigation had been carried out into the killings of the applicants’
relatives. However, it had been flawed by serious failures once it commenced,
which it had done only after a considerable delay. In particular, the
investigation did not seem to have pursued the possible involvement of a certain
military unit directly mentioned by several witnesses.
The
Government pointed out that the applicants could have appealed the results of
the investigation. The Court was not persuaded that such appeal would have been
able to remedy its defects, even if the applicants had been properly informed
of the proceedings and had been involved in it. The applicants must therefore be
regarded as having complied with the requirement to exhaust the relevant
criminal-law remedies.
The Court
accordingly found that the authorities had failed to carry out an effective criminal
investigation into the circumstances surrounding the deaths of the applicants’
relatives. There had therefore been a violation of Article 2 also in this respect.
Case of Isayeva, Yusupova, Bazayeva
A
criminal investigation had been carried out in this case. There had been,
however, a considerable delay before an investigation had been opened into
credible allegations of numerous civilian casualties and an attack on the Red
Cross vehicles. The Court also 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 “Kavkaz-1” military
roadblock who had ordered the refugees to return to
The
authorities had therefore failed to carry out an effective investigation into
the circumstances of the attack on the civilian convoy on 29 October 1999.
The Court accordingly dismissed the Government’s preliminary objection in this
respect and held that there had been a violation of Article 2 under this
head as well.
Case of Zara Isayeva
An investigation had been opened only upon
communication of the complaint to the respondent Government in September 2000.
There had thus been an unexplained delay of several months before an
investigation into credible allegations of dozens of civilian deaths commenced.
However, the Court also noted the significant amount of work carried out by the
investigation in an attempt to put together an account of the assault.
The Court nevertheless observed several
serious flaws in the part of the investigation file submitted to it, such as
the lack of reliable
Information about the decision of
The
decision to close the investigation had been based on the military experts’
report of February 2002. The applicant had not had any realistic possibility of
challenging its conclusions and, ultimately, those of the investigation.
The authorities had therefore failed to carry
out an effective investigation into the circumstances of the assault on
Katyr-Yurt on 4-7 February 2000. The Court accordingly dismissed the
Government’s preliminary objection in this respect and held that there had been
a violation of Article 2 under this head too.
Alleged
violation of Article 3 of the Convention
Case of Khasiyev and Akayeva
The Court
was unable to find that beyond all reasonable doubt the applicants’ relatives had
been subjected to treatment contrary to Article 3 of the Convention.
On the
other hand, having regard to the lack of a thorough and effective investigation
into credible allegations of torture, the Court held that there has been a
violation of the procedural requirements of Article 3.
Case of Isayeva,
Yusopova and Bazayeva
The Court
considered that the consequences described by the applicants had been a result
of the use of lethal force by the State agents in breach of Article 2. The
Court did not find that separate issues arose under Article 3.
Alleged
violation of Article 1 of Protocol No. 1 (Bazayeva)
Mrs
Bazayeva had been subjected to an aerial attack, which had resulted in
destruction of her family’s vehicles and household items. This constituted grave
and unjustified interference with her peaceful enjoyment of her possessions. There
had thus been a violation of Article 1 of Protocol No. 1.
Alleged
violation of Article 13 of the Convention in conjunction with Articles 2 and 3
(Khashiyev and Akayeva), Article 2 of
the Convention and Article 1 of Protocol No. 1 (Isayeva, Yusopova and Bazayeva) and Article 2 of the Convention (Zara
Isayeva)
In view
of the findings in respect of the relevant provisions, 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, for the purposes of Article 13.
In the
present cases the criminal investigation had been ineffective in that it lacked
sufficient objectivity and thoroughness, and the effectiveness of any other
remedy, including the civil remedies, had been consequently undermined. The
Court therefore found that the State had failed in its obligation under
Article 13 of the Convention.
In the case of Khashiyev and Akayeva Judge Kovler and Judge Zagrebelsky expressed
partly dissenting opinions. These opinions are annexed to the judgment.
The Court’s judgments are accessible on its
Internet site (http://www.echr.coe.int).
***
Registry of
the European Court of Human Rights
F – 67075
Contacts: Roderick Liddell (telephone:
+00 33 (0)3 88 41 24 92)
Emma Hellyer (telephone:
+00 33 (0)3 90 21 42 15)
Stéphanie Klein
(telephone: +00 33 (0)3 88 41 21 54)
Fax: +00 33 (0)3 88 41 27 91
The European Court of Human Rights was set up in
[1] Under Article 43 of the European Convention on Human Rights, within
three months from the date of a Chamber judgment, any party to the case may, in
exceptional cases, request that the case be referred to the 17‑member
Grand Chamber of the Court. In that event, a panel of five judges considers
whether the case raises a serious question affecting the interpretation or
application of the Convention or its protocols, or a serious issue of general
importance, in which case the Grand Chamber will deliver a final judgment. If
no such question or issue arises, the panel will reject the request, at which
point the judgment becomes final. Otherwise Chamber judgments become final on
the expiry of the three-month period or earlier if the parties declare that
they do not intend to make a request to refer.
[2] This summary drafted by the Registry is not binding on the Court.