Published: 29 Mar 2011

Esmukhambetov and others v Russia

Case Summary

Case No. 23445/03
Judgment date: 29 March 2011

Facts

The applicants are 27 Russian nationals who lived in the village of Kogi in the Chechen Republic. On 12 September 1999 an aerial strike carried out by two military planes resulted in the destruction of all the applicants’ houses and the deaths of the family members of five of the applicants. One of the applicants witnessed the death of his wife and two young sons. Following the attack, the applicants repeatedly applied to multiple State bodies for redress. A criminal investigation was instituted in January 2002 but was discontinued in September 2005 owing to the absence of constituent elements of a crime punishable under Russian law. The decision stated that the order to bomb the village was justified by the need to prevent terrorist attacks. In separate civil proceedings, three of the relatives sought and were awarded compensation of EUR 1,500 and 500.

Judgment

The Court held that there was a violation of Article 2 in relation to the deaths of the relatives of five applicants, in that the Government had failed to demonstrate that it had carefully evaluated the situation so as to avoid or minimise the risk of loss of lives. The Court questioned why the Russian Government could not have attained the aim pursued by any other means, in particular by using ground troops.

The Court further found a violation of Article 2 on account of the authorities’ failure to carry out an adequate and effective investigation into the deaths of the five applicants’ relatives.

There was also a violation of Article 8 and Article 1 of Protocol 1 as a result of the destruction of a number of buildings in the village of Kogi. The Suppression of Terrorism Act, referred by the Government, did not define with sufficient clarity the scope provided and the manner of their exercise so as to afford an individual adequate protection against arbitrariness, thus  could not serve as a legal basis for interference with applicants rights under this provisions.

As to effectiveness of the available remedies, the Court found violation of Article 13 in conjunction with Article 2 in relation to the applicants whose relatives had died, and violation of Article 13 together with Article 8 and Article 1 of Protocol 1 in relation to all applicants.

The Court held that the first applicant, Mr Esmukhambetov, who witnessed the killing of his entire family had experienced suffering to amount to violation to Article 3, but rejected the same claim in relation to other applicants who had not witnessed the killings of the their relatives.

The Court awarded EUR 41,000 to the first applicant, EUR 39,000 to the second and third applicants and EUR 38,000 to each of the other applicants in respect of pecuniary damages; EUR 120,000 to the first applicant, EUR 30,000 to the second applicant, EUR 60,000 to the third applicant, EUR 15,000 to each of the 13th and 22nd applicants and EUR 10,000 to each of the remaining applicants in respect of non-pecuniary damages.

Comment

The Russian Government questioned the admissibility of the alleged violation of Article 2 by submitting that the relevant applicants could not still claim to be ‘victims’ of the violation due to the initial payment of compensation. The Court reiterated that whilst compensation for damages flowing from a breach of Article 2 should be available as part of the range of redress, violations of Article 2 in cases of fatal assault by State agents cannot be remedied only by awarding damages to the relatives of victims. For “if the authorities could confine their reaction to such incidents to the mere payment of compensation, while not doing enough to prosecute and punish those responsible, this might result in the wrongful use of lethal force by State agents who would be placed in a position of virtual impunity”.