Published: 29 May 2012

Damayev v Russia

Case Summary

Case No. 36150/04
Judgment date: 29 May 2012

Facts

The applicant alleged that on 8 April 2004, two Russian military aircraft bombed the village of Rigakhoy in the Chechen Republic, destroying his house and causing the deaths of his wife and five of his children. An investigation opened a few days later concluded that the house had not been bombed, but had been destroyed in an explosion caused from within by an artillery shell kept there. For these reasons, no criminal investigation was opened. The applicant and his elder son survived as they were out of house at the time.

Judgment

The Court found a violation of Article 2 in respect of the deaths of the applicant’s wife and five children. On the issue of State responsibility, the Court rejected the Government’s argument regarding the cause of the explosion. Furthermore, the failure of the Government to provide key documents and information allowed the Court to draw inferences from such conduct. The deaths were therefore imputable to the State. The Court did not consider it necessary to establish whether the use of lethal force was justified. The Government’s failure to provide any justification for the use of lethal force against civilians was sufficient in itself to lead the Court to conclude that the deaths were the result of the disproportionate use of lethal force by State agents, and thus in violation of Article 2.

Additionally, the Court found a violation of the procedural limb of Article 2. The unjustifiably long delay in commencing the investigation eight days after the incident and in taking the necessary investigative steps, contributed to the investigation’s ineffectiveness. The Court also considered that the applicant was not properly informed of the investigation’s progress (including its termination) and could not therefore challenge the authorities’ actions before a court.

However, the Court rejected the applicant’s arguments under Article 3. Given that the applicant’s relatives were neither detained nor missing before their deaths, the Court was not persuaded that despite its gruesome circumstances, the applicant sustained uncertainty, anguish and distress characteristic of the specific phenomenon of disappearances.

The applicant was awarded 300,000 EUR in damages. The Court refused to order an investigation into the deaths, stating that it was the responsibility of the Government to choose how best to discharge its obligation under Article 46 (binding force and execution of judgments).

Comments

Note that Russia had not declared a state of emergency, and made no derogations under Article 15, such that the Court would be required to consider the case against the “normal legal background”.