Lexploria

Information Note on the Court’s case-law 189

October 2015

Abakarova v. Russia - 16664/07

Judgment 15.10.2015 [Section I]

Article 2

Article 2-1

Effective investigation

Article 2-2

Use of force

Disproportionate use of lethal force by the State and lack of effective investigation: violations

Article 46

Article 46-2

Execution of judgment

Individual measures

Measures of a general character

Respondent State required to reopen criminal proceedings and to ensure effective protection of applicant’s rights as a vulnerable victim: violations

Fact – In 2000, when the applicant was eight years old, the Russian military conducted an aerial attack on a village in Chechnya which killed the applicant’s family and left her severely injured. A criminal investigation into the attack was opened that same year. The investigation was terminated on several occasions and then reopened following the Court’s judgm ents in the cases of Isayeva v. Russia (57950/00, 24 February 2005, Information Note 72 ) and Abuyeva and Others v. Russia (27065/05, 2 December 2010, Information Note 136 ), respectively. The applicant learned about the ongoing criminal investigation only in 2006 and subsequently informed the military prosecutor of the deaths of her five family member s and of the injuries she had suffered in the course of the airstrike. The last set of proceedings was ultimately discontinued in 2013 on account of the alleged legitimacy of the military action in the circumstances.

Law – Article 2

(a) Substantive limb – In the Isayeva and Abuyeva and Others cases, the Court had concluded that the planning and execution of the airstrike on the applicant’s village had been carried out in violation of Article 2 because the use of lethal force by State agents had been dispro portionate. In the present case the Court could not but reach the same conclusion and reaffirm that, while the military operation at issue had pursued a legitimate aim, it had not been planned or executed with the requisite level of care with respect to th e lives of the civilian population.

Conclusion : violation (unanimously).

(b) Procedural limb – In the Abuyeva and Others case the Court had found that all the major flaws of the investigation into the events of February 2000 indicated in the 2005 Isayeva case had persisted throughout the second set of proceedings, which ended in 2007. However, in the present case it also appeared that, to date, none of the issues raised in the Abuyeva and Others judgment had been resolved. In particular, the names of the v ictims’ deceased relatives had not been recorded by the investigation and nothing had been done by the domestic authorities to acknowledge the applicant’s situation as a vulnerable victim and to take measures in order to ensure the effective protection of her rights in the course of the proceedings. In particular, when the applicant was finally questioned and granted victim status in the criminal case this had occurred without the participation of a legal guardian or representative, in breach of the domesti c legal norms. Moreover, she had not been informed in 2007 of the decision to terminate the proceedings and her deceased relatives had not been named in the 2013 decision to terminate the investigation as being among those who had died in the impugned even ts. Therefore, the inadequacy of the investigation had not been the result of objective difficulties that could be attributed to the passage of time or the loss of evidence, but rather of the investigating authorities’ unwillingness to establish the truth and punish those responsible.

Conclusion : violation (unanimously).

The Court also found, unanimously, a violation of Article 13 in conjunction with Article 2 on account of the flaws of the criminal investigation, which had in turn undermined the effectiven ess of any other remedy that might have existed.

Article 46: In carrying out the investigation in the applicants’ case the respondent State had manifestly disregarded the specific findings of the Court in the Isayeva and Abuyeva and Others cases and no pre viously identified defect of the investigation had been resolved to date. In fact, the criminal investigation had still not succeeded in establishing the relevant factual circumstances concerning the events, including a complete list of the victims and of the causes of the deaths and injuries, in carrying out an independent expert report of the compatibility of the lethal force used with the principle of “absolute necessity”, or in attributing individual responsibility between the commanders and the civilia n authorities for the aspects of the operation which led to the breach of Article 2.

It was therefore incumbent on the Committee of Ministers , acting under Article 46 of the Convention, to continue to add ress the issue of what could be required from the respondent Government by way of compliance, through both individual and general measures. In the light of the Court’s findings, these measures should focus not only on the continued criminal investigation, but also on non-judicial mechanisms aimed at ensuring that similar occurrences do not recur in the future, and that the applicant’s rights are adequately protected in any new proceedings, including through access to measures for obtaining reparation for th e harm suffered.

Article 41: EUR 300,000 in respect of non-pecuniary damage; EUR 12,600 in respect of pecuniary damage.

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