Kosumova v. Russia (ECtHR)

The applicant alleged that the mortar fire was carried out at the request of federal security forces and that her daughter had, thus, been killed by agents of the state. The applicants further argued that ‘the use of heavy ordnance in peacetime and with no precautions taken did not comply with the extent of diligence expected from law enforcement bodies in a democratic society’. According to the applicant, even if the operation had pursued a legal objective, the operation had not been planned and carried out with due concern for the lives of civilians’, resulting in a violation of Article 2 (right to life) of the European Convention on Human Rights in its substantive aspect. The applicants further argued that the authorities had failed to carry out an effective investigation into the event, in violation of its procedural obligations under Article 2. (§73)

The Government argued that the involvement of state agents in the shelling could not be proven, as official investigations into the events were unable to determine whether the road was shelled by illegal armed groups or whether it had been carried out in support of the security forces on request of the Federal Security Bureau (FSB). (§§64, 74)

The Court considered that the material in the case file did not provide a sufficient evidential basis to enable it to find ‘beyond reasonable doubt’ that the Russian authorities were responsible for the mortar fire, and it found no violation of Article 2 in its substantive aspect. (§86) However, it found that there had been a violation of Russia’s procedural obligation under Article 2 of the Convention, inter alia, due to significant shortcomings in the preliminary investigative measures, unlawful and frequent suspensions of the investigation, the failure of the military and security authorities to provide the investigating authority with the military action logbook, information about the mortar batteries used on 7 June 2003 by military units and divisions deployed in the area, and information on the flying range of mortar shells of specific calibres, as well as the fact that the case was still pending 11 years after the events. (§§91-96)

The applicant further complained that as a result of her daughter’s death and the state’s failure to investigate it properly, she and her late husband had endured mental suffering in breach of Article 3 (Prohibition of torture) of the Convention.Her husband had been ill and died shortly after he learned of the death of his daughter. The Court rejected that complaint. With reference to the ‘instantaneous death’ of the applicant’s daughter, the Court referred to ‘its practice by which the application of Article 3 is usually not extended to the relatives of persons who have allegedly been killed in violation of Article 2, as opposed to the relatives of the victims of enforced disappearances’, and argued that although the suffering was ‘profound’, it was not of a ‘continuous nature’. (§100) Note, however, with regard to the complaint under Article 3, that the Court has found in Esmukhambetov et al. v. Russia that witnessing the instantaneous death of ones whole family from an explosive weapon, a missile in that case, can amount to a violation of Article 3.'the first applicant, who witnessed the killing of his whole family … experienced a shock of such intensity that he suffered from a temporary loss of memory. The Court further considers that the suffering endured by the first applicant was of such severity for the authorities’ acts resulting in the deaths of the first applicant’s family members to be categorised as inhuman treatment within the meaning of Article 3'. (§191)