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In 2000, the applicant in this case lived with her husband in a three-room apartment in a block of flats in Grozny. According to the applicant, on 4 January 2000 the apartment block was hit by a missile fired by the Russian armed forces during an attack on Grozny (§8). In respect of the missile strike, the applicant complained about the destruction of her property and the unfairness of the proceedings for compensation, relying on Article 6 (right to a fair trial) of the European Convention on Human Rights and Article 1 (protection of property) of Protocol No. 1 to the Convention.The right to life aspect of this case relates to the killing, on 6 January, of the applicant’s husband by an intoxicated man shooting with a machine gun into the basement where they were sheltering from the bombardment. A domestic court allowed in part the applicant’s compensation claim for her husband’s death, but the compensation was not paid until years later. The applicant complained about the delayed enforcement of the final judgment. This aspect of the case is not addressed below.
The Court found that the applicant’s complaints as to the State’s responsibility for the damage to her property, and the claims for compensation, had not been substantiated, and rejected the complaint (§111).
In domestic proceedings, a district court had noted that the state was liable only for damages caused by its agents’ actions which were unlawful, and found that the actions of the Russian federal troops in Chechnya had been lawful, as the military operation in Chechnya had been launched under decrees that had been found to be constitutional (§30). The court further stated that the applicant had submitted no evidence proving a causal link between the state’s actions and the damage sustained by her, noting that military actions had been carried out by both parties to the conflict (§31). The domestic court also held that although, in principle, damage inflicted by a ‘source of increased danger’ was to be compensated for by the person or entity using that source,
weapons and military equipment, in the circumstances of the present case, could not be regarded as a “source of increased danger”, since they had been used strictly for the purposes they were designed for and under the firm control of the relevant personnel.
Finally, the domestic court criticized that the applicant had not adduced any evidence which would enable the court to establish the type and ownership of the weapon which had destroyed the applicant’s housing (§32).
The applicant submitted to the European Court of Human Rights (the Court) that the domestic court had unjustifiably rejected her arguments that her flat and her belongings had been destroyed by Russian federal armed forces, and that the weapons used by the armed forces should be regarded as a 'source of increased danger' with the result that the armed forces should be liable for compensation for damage caused by such a 'source' (§98). She further contended that her claims had been based on generally known facts concerning ‘the use of heavy force and indiscriminate shelling by the federal armed forces in Chechnya’, reported in the mass media, and that she had been under no obligation to prove those facts. The domestic court’s requirement for her to submit evidence as to the type of weapon used and the weapon user was, in her view, unjustified, as she had clearly been unable to identify that weapon, or to find out which party had used it (§98). In the absence of any specific knowledge regarding military equipment or access to any information about the details of the military operation in Chechnya apart from that made public in the mass media, the applicant argued, she was not in a position to obtain any evidence as to what type of weapon destroyed her property or to what unit of the federal forces it had belonged (§88).
The Court agreed with the Government that it was open to the applicant to seek a domestic court’s assistance to obtain the necessary evidence, and rejected the complaint that the proceedings had been unfair (§§101–03).
As to the alleged destruction of the applicant's property, the applicant insisted that the block of flats in which she lived had been destroyed as a result of a missile strike, and argued that the missiles had presumably been in the exclusive possession of the federal armed forces (§104). The Court, however, noted that the applicant had not furnished it with any document proving that she had a property right in the destroyed flat (§107)On 21 June 2000, a housing authority issued the applicant with a certificate confirming that her flat 'was destroyed and burnt completely during the military actions on 4 January 2000', but the certificate contained no other information relating to the destruction. and argued, with reference to applicant's duty to provide prima facie evidence to the effect that his or her rights were interfered with and the Court's subsidiary role in assessing evidence brought before domestic courts (§106), that ‘the general situation prevailing in the region at the material time’ was one of ‘two-sided violence’ involving the federal armed forces and rebel fighters, 'resulting in destruction of the property of many residents of Chechnya'.
The Court was
not convinced that in such circumstances the State may or should be presumed responsible for any damage inflicted during the military operation, and that the State’s responsibility is engaged by the mere fact that the applicant’s property was destroyed. (§109)
In light of the finding that the proceedings before domestic courts had not be unfair, the Court was unable to depart from the findings of the domestic courts and reach the conclusion that the applicant’s possessions were destroyed, as alleged, by the Russian troops. The Court therefore found that the applicant’s complaints as to the State’s responsibility for the damage to her property, and the claims for compensation, had not been substantiated.
From a weapons law perspective and with regard to the rights of victims, this case raises interesting questions about what can be expected of survivors and states in respect of the source of material destruction, the weapon used and the weapon user, especially in situations where actors other than the respondent state could be responsible for the harm caused.
In this case, the applicant made the argument that missiles were presumably in the exclusive possession of the state. Although the Judgment does not say whether the missile in question was air- or ground-launched, it is noteworthy that the Court has in another case involving ‘a situation of two-sided violence’ allowed for a presumption that the state is responsible for harm done with air-launched weapons on the basis that 'presumably military aircraft are held in the exclusive possession of the State, and, more specifically, of the Russian Armed Forces'.
Although it ultimatetly rejected the applicant's claim in this case, the Court was careful to point out that 'the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective'. Bearing this in mind, the Court did 'not exclude the possibility that in certain circumstances Article 6 § 1 of the Convention might require the domestic courts to assist the most vulnerable party to the proceedings in collecting evidence in order to enable that party to submit argument properly and satisfactorily so that the principle of fairness is respected' (§100).
The Court would, however, have expected the applicant to seek a domestic court’s assistance in that respect (§101), and it also noted that the applicant had not submitted any photographs, if they existed, to the Court, or given any reasons preventing her from submitting this evidence. The Court further pointed out that the applianct had not relied on any independent sources to confirm that on the date in question there was an attack by federal forces resulting in the damage alleged (§108).
Last updated on: 09 March 2015