Lexploria

Information Note on the Court’s case-law 206

April 2017

Tagayeva and Others v. Russia - 26562/07, 14755/08, 49339/08 et al.

Judgment 13.4.2017 [Section I]

Article 2

Positive obligations

Article 2-1

Effective investigation

Article 2-2

Use of force

Breach of State’s obligations to protect life during hostage taking crisis in Beslan in 2004 and lack of effective investigation: violations

Article 13

Effective re medy

Special importance of compensation and access to information under Article 13: no violation

Article 46

Article 46-2

Execution of judgment

Individual measures

General measures

Respondent State required to take measures to ensure adequate legal framework for use of lethal force during security operations

Facts – The case arose out of a terrorist attack on a school in Beslan, North Ossetia (Russia) in September 2004 that resulted in the deaths of some 334 civilians, including 186 children, who had been taken hostage. Shortly after 9 a.m. on 1 September 2004 a gr oup of heavily armed terrorists entered the courtyard of the school during a traditional ceremony to mark the opening of the academic year and forced over 1,100 of those present into a ground-floor gymnasium, which they proceeded to rig with explosive devi ces. Some sixteen male hostages were killed later that day. On 3 September a series of three explosions ripped through the gymnasium where the hostages were being held, causing multiple casualties, either during the explosions or resulting fire, or when th ey were shot when attempting to escape. State forces then stormed the building. Before the European Court the applicants alleged breaches of Article 2 in relation to the positive obligations to protect life and to investigate, the planning and control of t he operation and the use of lethal force.

Law – Article 2

(a) Positive obligation to prevent threat to life – At least several days in advance the authorities had had sufficiently specific information about a planned terrorist attack in the area targeting an educational facility on 1 September. The intelligence information had likened the threat to previous major attacks undertaken by Chechen separatists, which had resulted in heavy casualties. A threat of that kind clearly indicated a real and immediate r isk to the lives of the potential target population. The authorities had had a sufficient level of control over the situation and could have been reasonably expected to take measures within their powers that could reasonably be expected to have avoided, or at least mitigated, that risk. Although some measures had been taken, in general the preventive measures could be characterised as inadequate. The terrorists had been able to successfully gather, prepare, travel to and seize their target, without encounte ring any preventive security arrangements. No single sufficiently high-level structure had been responsible for the handling of the situation, evaluating and allocating resources, creating a defence for the vulnerable target group and ensuring effective co ntainment of the threat and communication with the field teams. The Russian authorities had failed to take measures which, when judged reasonably, could have prevented or minimised the known risk.

Conclusion : violation (unanimously).

(b) Procedural obliga tion – The cause of death of the majority of the victims had been established on the basis of external examinations of the bodies only. No additional examinations had been carried out, for example, to locate, extract and match external objects such as meta l fragments, shrapnel and bullets. On several occasions the relatives of those who had lost their lives at the school had requested that the bodies of the victims be exhumed and additional enquiries performed in order to reach more specific conclusions abo ut the causes of their deaths, but no such requests were granted. A third of the victims had died of causes that could not be established with certainty, in view of extensive burns. Such a high proportion of unestablished deaths seemed striking. The locati on of the hostages’ bodies in the school had not been marked or recorded with any precision. The absence of such basic information as the place of the victims’ deaths had contributed to the ambiguity concerning the circumstances in which they had occurred. An individualised description of their location and a more in-depth examination of the remains should have served as a starting point for many of the important conclusions drawn in the course of the investigation. Failure to ensure this basis for subseque nt analysis constituted a major breach of the requirements of an effective investigation.

The investigation had failed to properly secure, collect and record evidence at the school building. That had resulted in a report being drawn up that was incomplete in many important respects. There existed a credible body of evidence pointing at the use of indiscriminate weapons by State agents in the first hours of the storming. That evidence had not been fully assessed by the investigation. The lack of objective a nd impartial information about the use of such weapons constituted a major failure by the investigation to clarify that key aspect of the events and to create a ground for drawing conclusions about the authorities’ actions in general and individual respons ibility. The investigation’s conclusion that no one among the hostages had been injured or killed by the lethal force used by the State agents was untenable. Coupled with incomplete forensic evidence on the causes of death and injuries, deficiencies in the steps to secure and collect the relevant evidence from the site, any conclusions reached about the criminal responsibility of State agents in that respect were without objective grounds and were thus inadequate.

Conclusion : violation (unanimously).

(c) Planning and control of the operation – The absence of a single coordinating structure tasked with centralised handling of the threat, planning, allocating resources and securing feedback with the field teams, had contributed to the failure to take reasona ble steps that could have averted or minimised the risk before it materialised. That lack of coordination was repeated during later stages of the authorities’ response. The leadership and composition of the body that was responsible for the handling of the crisis was officially determined approximately thirty hours after it had started. Such a long delay in setting up the key structure that was supposed to prepare and coordinate the responses to the hostage-taking had not been explained. Even once it had be en set up its configuration was not respected. The absence of formal leadership of the operation had resulted in serious flaws in the decision-making process and coordination with other relevant agencies. No plan for a rescue operation was prepared and com municated to the services concerned until two and a half days after the unfolding of the crisis. No sufficient provision had been made for forensic work, body storage and autopsy equipment. It was unclear when and how the most important decisions had been taken and communicated with the principal partners, and who had taken them.

Conclusion : violation (five votes to two).

(d) Use of lethal force – Overall, the evidence established a prima facie claim that State agents had used indiscriminate weapons while the terrorists and hostages were intermingled. Presumptions could be drawn from the co-existence of that evidence and the absence of a proper fact-finding into the cause of death and the circumstances of the use of arms. Despite that lack of individual cer tainty, the known elements of the case allowed the Court to conclude that the use of lethal force by the State agents had contributed, to some extent, to the casualties among the hostages. After the first explosions in the gymnasium and the opening of fire by the terrorists on the escaping hostages, the risk of massive human loss became a reality, and the authorities had had no choice but to intervene by force. The decision to resort to the use of force by the State agents was justified in the circumstances .

Operational command should have been able to take rapid and difficult decisions about the means and methods to employ so as to eliminate the threat posed by the terrorists as soon as possible. Apart from the danger presented by the terrorists the comman ders had to consider the lives of over 1,000 people held hostage, including hundreds of children. The acute danger of the use of indiscriminate weapons in such circumstances should have been apparent to anyone taking such decisions. All relevant factors sh ould have been weighed up and carefully pondered over in advance, and the use of such weapons, if unavoidable in the circumstances, should have been subject to strict supervision and control at all stages to ensure that the risk to the hostages was minimis ed. The security forces had used a wide array of weapons, some of them extremely powerful and capable of inflicting heavy damage upon the terrorists and hostages, without distinction.

The primary aim of the operation should have been to protect lives from unlawful violence. The massive use of indiscriminate weapons stood in flagrant contrast with that aim and could not be considered compatible with the standard of care prerequisite to an operation of that kind involving the use of lethal force by State age nts. Such use of explosive and indiscriminate weapons, with the attendant risk for human life, could not be regarded as absolutely necessary in the circumstances.

Furthermore, the domestic legal framework had failed to set out the most important principle s and constraints of the use of force in lawful anti-terrorist operations, including the obligation to protect everyone’s life by law, as required by the Convention. Coupled with wide-ranging immunity for any harm caused in the course of anti-terrorism ope rations, that situation had resulted in a dangerous gap in regulating situations involving deprivation of life. Russia had failed to set up a framework of a system of adequate and effective safeguards against arbitrariness and abuse of force.

Conclusion : violation (five votes to two).

Article 13: All the applicants had received State compensation as victims of the terrorist attack. The authorities’ choice to allocate compensation on the basis of the degree of damage suffered, regardless of the outcome of t he criminal investigation, appeared to be victim-based and thus justified. Efforts had been made to commemorate the grief and help the entire community of Beslan reconstruct after the devastating events. Those measures had to be seen as part of general mea sures aiming to benefit all those who had been affected by the events.

What appeared to be of special importance under Article 13, apart from the compensation mechanisms, was access to information and thus the establishment of truth for the victims of the violations alleged, as well as ensuring justice and preventing impunity for the perpetrators. In addition to the criminal investigation into the terrorist act, a number of other proceedings had taken place. The trial of the one terrorist captured alive ha d resulted in his conviction and life imprisonment; two sets of criminal proceedings against police officers had resulted in them being charged and put on trial and there had been extensive and detailed studies of the events by members of the parliamentary commissions of the North Ossetian Parliament and State Duma. Those reports had played an important role in collecting, organising and analysing the scattered information on the circumstances of the use of lethal force by State agents and ensured access by the applicants, and the public in general, to knowledge about aspects of the serious human-rights violations that would have otherwise remained inaccessible. In that sense, their work could be regarded as an aspect of effective remedies aimed at establish ing the knowledge necessary to elucidate the facts, distinct from the State’s procedural obligations under Articles 2 and 3 of the Convention.

Conclusion : no violation (six votes to one).

Article 46: The Court set out a variety of both individual and gener al measures to be taken under Article 46, including further recourse to non-judicial means of collecting information and establishing the truth, public acknowledgement and condemnation of violations of the right to life in the course of security operations , and greater dissemination of information and better training for police, military and security personnel in order to ensure strict compliance with the relevant international legal standards. The prevention of similar violations in the future had also to be addressed in the appropriate legal framework, in particular by ensuring that the national legal instruments pertaining to large-scale security operations and the mechanisms governing cooperation between military, security and civilian authorities in suc h situations were adequate, and by clearly formulating the rules governing the principles and constraints of the use of lethal force during security operations, reflecting the applicable international standards.

Article 41: Awards ranging between EUR 3,000 and EUR 50,000 to each of the applicants in respect of non-pecuniary damage; claims in respect of pecuniary damage dismissed.

(See also Finogenov and Others v. Russia , 18299/03 and 27311/03, 20 December 2011, Information Note 147 ; and, more generally, the Factsheet on the Right to life )

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