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In December 1999, the Russian government conducted a ‘counter-terrorism’ operation in Urus-Martan, a district of Chechnya. The applicant, who lived temporarily in the village of Martan-Chu (in Urus-Martan district), alleged that he had been wounded as a result of Russian federal forces subjecting the area around the village to indiscriminate shelling on 4 December 1999.
As a consequence of the injury, the applicant is suffering permanent serious disability requiring constant rehabilitation therapy. (§§13, 44) In the Court’s view, this ‘is sufficient to bring the complaint within the ambit of Article 2’ (right to life) of the European Convention on Human Rights. (§58) However, although the Court found a violation of Article 2 (right to life) in its procedural aspect, it did not find a violation of the substantive limb of Article 2.
The applicant submitted that the army had used Grad or Uragan-type ‘multiple rocket launch systems, which were stationed about ten kilometres from the village’. According to the applicant, 28 rockets had hit the village, parts of which were still present in some of the houses of the village years after the attack. (§§44, 73) One of the rockets landed next to the applicant who received numerous splinter wounds, including to the head. (§8)
The Government acknowledged that on 4 December 1999 the applicant received splinter wounds, but they denied that the state was responsible for it, because it was impossible to establish the perpetrators of the injuries. The Government suggested that the applicant could have been injured as the result of an explosion of a mine or of a shell launched by an illegal armed group. (§79)
The Court found that the authorities had ‘failed to carry out an effective investigation into the circumstances of the applicant’s injuries, and that there had therefore been a violation of Article 2 in this respect. (§75) This finding was in part based on the failure of the government to collect and examine weapon fragments left behind in the village after the attack. (§73) No reference is made in the judgment to the dangers that explosive and toxic remnants of war pose to civilians or to the responsibilities of states with regard to averting these dangers.
The Court reiterated that the State bears the burden of providing a plausible explanation for injuries and deaths occurring to persons in areas under the exclusive control of the authorities and where there is prima facie evidence that state agents could be involved. (§78) However, because the investigation was unable to come up with any definitive answers explaining the origins of the explosion, the Court did not find that the applicant had made an arguable claim of the State’s responsibility for the attack in question. (§80)
In the Court’s view, the burden of proof did not shift to the Government in this situation where the applicant had ‘significantly contributed to the investigation’s delay’, and the evidence submitted by the parties was not sufficient to find a violation of the substantive limb of Article 2 of the Convention. (§81)
Because the suffering experienced by the applicant (including his permanent disability) were a result of the use of lethal force the origins of which could not be established, it did not find that any separate issues arose under Article 3 of the Convention. (§84)
Like in other cases where the weapon causing harm could have been used by an actor other than the respondent state (what the Court has termed situations of ‘two-sided violence’ in e.g. Trapeznikova v. Russia), this case raises important questions about what can be expected of survivors and of states regarding the identification of the weapon used and the user.
For survivors, the identification of the weapon user is particularly challenging in cases where the munition is launched from a great distance.
In many cases, however, identification of the weapon can exclude the possibility that non-state actors were responsible, in particular when it can be established that the weapon was air-launched.See, e.g. Kerimova et al. v. Russia, §241: ‘The Court, having regard to the fact that the Government acknowledged that the strike of 2 October 1999 had been carried out by planes, does not find convincing their argument that the identity of those planes remained unknown, as presumably military aircraft are held in the exclusive possession of the State, and, more specifically, of the Russian Armed Forces.’
That the source of the explosion in this case could not be established was mainly due to the government’s failure to collect and analyse the weapon fragments. While this failure contributed to the finding of a breach of Article 2 procedural grounds, it did not lead the Court to find a substantive violation. Whether the Court would have reached the same conclusion if the applicant had not ‘significantly contributed to the investigation’s delayis an open question.
Last updated on: 09 February 2015