Isayeva v. Russia (ECtHR)
The facts surrounding the bombardment of Katyr-Yurt and the ensuing investigation were partially disputed. The Court established that ‘an aviation bomb dropped from a Russian military plane’ exploded near the Applicant’s minivan while they were trying to flee the fighting in Katyr-Yurt.[The facts of this case are related to the case of Abuyeva et al. v. Russia.] As a result, the applicant's son and three nieces were killed and the applicant and her other relatives were wounded. (§179)
Relying on Article 2 of the European Convention on Human Rights, the applicant alleged that her right to life and the right to life of her son and other relatives were violated by the actions of the Russian military. She also submitted that the authorities had failed to carry out an effective and adequate investigation into the attack and to bring those responsible to justice. (§162)
The Government did not dispute the fact that the applicant's son and her three nieces had been killed and that the applicant and her other relatives had been wounded. But according to the Government, the attack was legitimate under Article 2§2(a) of the Convention in that they constituted use of force absolutely necessary in the circumstances for protection of a person from unlawful violence. According to the Government, illegal armed groups created a real threat to the life and health of Russian servicemen and civilians as well as to the general interests of society and the state, which could not be eliminated by other means. (§§169–70)
The Court accepted ‘that the situation that existed in Chechnya at the relevant time called for exceptional measures by the State in order to regain control over the Republic and to suppress the illegal armed insurgency’. Given the context of ‘the conflict in Chechnya’ at the relevant time, ‘those measures could presumably include the deployment of army units equipped with combat weapons, including military aviation and artillery’, in the Court’s view, which could possibly be justified under Article 2(2) of the Convention. However, as no martial law and no state of emergency had been declared in Chechnya, and no derogation had been made under Article 15 of the Convention, the Court judged the operation in question against a normal legal background. (§191) It noted that ‘Even when faced with a situation where, as the Government submit, the population of the village had been held hostage by a large group of well-equipped and well-trained fighters, the primary aim of the operation should be to protect lives from unlawful violence’ (§191) and ‘a balance must be achieved between the aim pursued and the means employed to achieve it’. (§180)
The Court concluded that the military operation in Katyr-Yurt was not spontaneous, but planned in advance, including the use of artillery and aviation.(§188) Apparently by default, the planes were carrying ‘heavy free-falling high-explosion aviation bombs FAB-250 and FAB-500 with a damage radius exceeding 1,000 metres’. Such ‘bombs and other non-guided heavy combat weapons’ were used against targets in the centre and on the edges of the village. (§190)
The Court regarded it as evident that
when the military considered the deployment of aviation equipped with heavy combat weapons within the boundaries of a populated area, they also should have considered the dangers that such methods invariably entail.’§189.
The Court could not find evidence that any serious calculations were made about the evacuation of civilians (between 18,000 and 25,000 persons) and other measures to protect civilians from the dangers of these weapons. The Court considered that
using this kind of weapon in a populated area, outside wartime and without prior evacuation of the civilians, is impossible to reconcile with the degree of caution expected from a law-enforcement body in a democratic society. … The massive use of indiscriminate weapons stands in flagrant contrast with [the primary aim of the operation, i.e. to protect lives from unlawful violence] and cannot be considered compatible with the standard of care prerequisite to an operation of this kind involving the use of lethal force by State agents.§191.
Altough accepting that the operation pursued a legitimate aim, the Court concluded that it was not ‘planned and executed with the requisite care for the lives of the civilian population’, (§200) and found a violation of Article 2 of the Convention. (§201)
The Court further found that ‘the authorities failed to carry out an effective investigation into the circumstances of the assault on Katyr-Yurt’ and found that the State had not met its obligations under Article 13 of the Convention. (§§224-230)
According to witness statements, a range of other explosive weapons were used in the assault on Katyr-Yurt, including
- Grad multiple barrel rocket launchers (MBRL)§§56, 110, 111, 165, Footnote 2.
- Uragan MBRL§111, Footnote 5.
- Artillery cannon§111.
- Mine-launchers§111.
The applicant claimed the military used ‘heavy and indiscriminate weapons, such as heavy aviation bombs and multiple rocket launchers’, (§19) but the Court did not make a determination about the appropriateness of the use of tube or rocket artillery, including MBRLs, in or near a populated area, such as Katyr-Yurt.
According to a witness statement, the assault on Katyr-Yurt also involved the use of a TOS-1 Buratino type weapon, which is a multiple-barrel launcher for rockets with an incendiary or a thermobaric warhead.
The Court did not make a determination about the appropriateness of the use of this weapon in or near a populated area, such as Katyr-Yurt.
Last updated on: 09 February 2015