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According to the applicants, residents of the town of Urus-Martan in the Chechen Republic, the town came under aerial attacks by Russian forces on 2 and 19 October 1999, resulting in the death of several residents, the wounding of others, including several children, and the destruction of a number of homes.
According to the Government, the attack formed part of a counterterrorism operation in the Northern Caucasus for the disarmament and ‘liquidation’ of illegal armed groups and restoration of constitutional order. The government submitted that rebel fighters had established positions in the centre of Urus-Martan and on the outskirts of the town, from where they attacked government aircraft with ‘surface-to-air missile systems and large-calibre firearms’. According to the Government, ‘almost no local residents remained’ in the town at the material time. On 18 October 1999 ‘pinpoint aerial strikes’ were ordered on ‘fighters’ bases, ammunition depots and other important targets outside the reach of the federal artillery fire’. Pursuant to that order, two military SU-24 M planes carrying 18 high-explosive fragmentation aerial bombs of calibre 250-270kg ‘carried out strikes on concentrations of illegal fighters one kilometre to the east of Urus-Martan’ and inside town, including on a school and residential buildings where fighters had established positions. (§§30-35)
Relying on Articles 2 and 8 of the European Convention on Human Rights and Article 1 of Protocol No. 1 to the Convention, the applicants complained, in particular, that their family members had died, their own lives had been put at risk, and their houses and other property had been severely damaged as a result of the aerial attacks ‘with high-explosive aerial bombs against heavily populated residential areas’ of the town. They also complained that there had been no effective investigation into the incidents.
Whilst the government acknowledged that the aerial attack of 19 October had been carried out by federal forces, they disputed their responsibility for the attack of 2 October, arguing that this strike had been carried out by ‘unidentified aircraft’. The Court was not convinced by this argument, however, ‘as presumably military aircraft are held in the exclusive possession of the State, and, more specifically, of the Russian Armed Forces’, and because weapon fragments found at the scene were identified as stemming from ‘an exploded aerial bomb’, a type of weapon that is presumably held in the exclusive possession of the state. The Court therefore found that the attack of 2 October was also carried out by aircraft belonging to the federal armed forces, that it fell within the ambit of Article 2, and that it was incumbent on the state to demonstrate that this use of force was absolutely necessary and therefore strictly proportionate to the achievement of one of those aims set out in Article 2(2) of the Convention. (§241-2)
As in other cases concerning Chechnya, the Court accepted that the ‘difficult situation’ at the material time called for ‘exceptional measures’ which ‘could presumably comprise the deployment of armed forces equipped with combat weapons, including military aircraft’ and it considered that the government’s argument that ‘the use of land troops would have involved unjustified casualties’ was not without foundation. (§246-7) Accepting in principle that the Russian Government may have had ‘no choice other than to carry out aerial strikes in order to be able to take over Urus-Martan’ in pursuit of a legitimate aims, the Court was nevertheless not convinced that ‘the necessary degree of care was exercised in preparing the operations of 2 and 19 October 1999 in such a way as to avoid or minimise, to the greatest extent possible, the risk of a loss of life, both for persons at whom the measures were directed and for civilians’. (§248)
The Court noted the lack of cooperation on the part of Russia to provide details concerning the planning and control of the airstrikes and criticised the destruction of documents and other information relatively soon after the attack.‘[S]uch time-limits for storage of information concerning the planning, control, performance and results of large-scale military actions, in particular aerial bomb attacks, which may entail multiple deaths or injuries, massive destruction or damage to property, or other drastic consequences, are too tight to be accepted as adequate’. (§244) The Court criticised, in particular, that the Government had failed to demonstrate what information they had about the presence of fighters at the targeted locations, and what measures they had taken to safely evacuate civilians, of whose presence they were clearly aware. (§§249–52)
As to the weapons used, the Court was ‘struck by the Russian authorities’ choice of weapon’, using ‘aerial bombs’, which the Court described as ‘a high-explosive indiscriminate type of weapon’ for strikes on residential quarters. The Court reiterated that using 'high-explosive fragmentation bombs of calibre 250-270kg' in 'a populated area' is impossible to reconcile with the degree of caution expected from a law-enforcement body in a democratic society. Considering that no state of emergency had been declared, and that the operation was to be evaluated against ‘a normal legal background’, the Court considered that the ‘use of indiscriminate weapons’ stood in flagrant contrast to the primary aim of the operation to protect lives from unlawful violence. (§253)
The Court noted that it found some indication in witness statements by federal pilots that ‘the use of missiles, as opposed to the use of high-explosive aerial bombs, might have been more appropriate in the circumstances’, and regretted that the Government had offered no explanation about their choice of weapon. (§254) The Court pointed out that according to statements by pilots, bombs were only to be used ‘at a distance of no less than three kilometres from any inhabited settlement’, whereas targets situated closer than three kilometres were to be hit with missiles. The only pre-selected target was, however, located at a distance of one kilometre from the town, whereas the residential quarter that came under attack on 19 October had not been mentioned in any military documents. (§255)
The Court concluded that the ‘authorities failed to exercise appropriate care in the organisation and control of the operations of 2 and 19 October 1999’ and that there had been a violation of Article 2. (§§256, 258)
the bombing with indiscriminate weapons of residential quarters of Urus-Martan inhabited by civilians was manifestly disproportionate to the achievement of the purposes listed under Article 2 § 2 (a) and (c).§257.
Last updated on: 09 February 2015