CASE OF ABUYEVA AND OTHERS v. RUSSIACONCURRING OPINION OF JUDGE MALINVERNI , JOINED BY JUDGES ROZAKIS AND SPIELMANN
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Document date: December 2, 2010
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CONCURRING OPINION OF JUDGE MALINVERNI , JOINED BY JUDGES ROZAKIS AND SPIELMANN
(Translation)
1. In the present case the Court reached the conclusion that the respondent State was to be held responsible for a violation of Article 2 of the Convention in both its substantive and procedural aspects.
It based its reasoning on the fact that, in the circumstances of the case, the use of lethal force may have been justified and the case should therefore be examined under paragraph 2 of Article 2.
In the light of the information available to it, the Court nevertheless held that “ the use of artillery and aviation bombs in a populated area, ... without prior evacuation of civilians, was impossible to reconcile with the degree of caution expected from a law-enforcement body in a democratic society ” (paragraph 200). It went on to state that “[e] ven when faced with a situation where ... 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 ” (ibid.). In the Court ' s view, “[t] he massive use of indiscriminate weapons stood in flagrant contrast to this aim and could not be considered compatible with the standard of care prerequisite to an operation of this kind involving the use of lethal force by State agents ” (ibid.).
The Court therefore drew the logical conclusion that “the operation ... was not planned and executed with requisite care for the lives of the civilian population ” (paragraph 203).
2. Under the terms of Article 19 of the Convention, the Court ' s task is to ensure the observance of the engagements undertaken by the States in the Convention and the Protocols thereto. It follows that the only provisions in respect of which the Court may find a violation are those contained in the Convention and its Protocols. However, this should not prevent the Court from referring to other sources of international law in support of its arguments, as indeed it has frequently done.
3. I therefore regret the fact that in the present case the Court made no mention whatsoever of the principal rules governing the conduct of combatants in situations such as that dealt with in this case, namely the rules of international humanitarian law. In addition to Article 3 of the Fourth Geneva Convention of 12 August 1949, the conduct of combatants in a non ‑ international armed conflict such as the one in question here is governed first and foremost by the Protocol Additional to the Geneva Conventions (Protocol II) of 8 June 1977 , which was ratified by Russia on 29 September 1989.
Article 13 of this Protocol states that “[t]he civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations” (paragraph 1) and that “[t]he civilian population as such, as well as individual civilians, shall not be the object of attack” (paragraph 2).
I regret the fact that in the present judgment (as indeed in other similar cases [1] ), the Court made no reference to these rules.
A N N E X
No.
Applicant ' s name and date of birth
Relatives killed
Injuries sustained
Non-pecuniary damage
1
Ms Marusa Abuyeva, born in 1948
Mr Ruslan Abuyev, born in 1979, son
EUR 60,000
Sixty thousand euros
2
Ms Malika Abdulkerimova, born in 1957
Mr Sulambek Abdulkerimov, born in 1980, son
EUR 60,000
Sixty thousand euros
3
Ms Larisa Anzorova, born in 1972
Mr Kharis Anzorov, born in 1936, father
EUR 60,000
Sixty thousand euros
4
Ms Malika Akhtakhanova, born in 1965
Several splinter wounds, including piercing of the left lung, severe loss of blood and inflammation
EUR 40,000
Forty thousand euros
5
Ms Maryam Akhtakhanova, born in 1986
A wound to the face and eyelids
EUR 30,000
Thirty thousand euros
6
Mr Mamudtsalya Akhtakhanov, born in 1951
Shell wound to the head and concussion; was granted disability of the first degree
EUR 40,000
Forty thousand euros
7
Mr Avgazar Byut ukayev, born in 1943
Shell wounds to the left leg, frost bite, loss of blood and hypothermia. left leg was amputated; daughter Malika wounded
EUR 70,000
Seventy thousand euros
8
Ms Malizh Byut ukayeva, born in 1957
Shell wound to the right upper part of the torso, open fracture of the right shoulder bones and infection of the wounds
EUR 30,000
Thirty thousand euros
9
Ms Raisa Vakhayeva, born in 1959
Mr Adlan Vakhayev, born in 1989, son
P iercing wound to the chest, shell wound to the right hand and concussion
EUR 100,000
One hundred thousand euros
10
Ms Khava Vakhayeva, born in 1987
S hell wounds to the left waist area and left shoulder (no documents)
EUR 3 0,000
Thirty thousand euros
11
Ms Madina Vakhayeva, born in 1990
S hell wound to the left hand
EUR 30,000
Thirty thousand euros
12
Ms Nurzhan Vakhayeva, born in 1964
Injuries to the back and hands
EUR 30,000
Thirty thousand euros
13
Ms Elita Vakhayeva, born in 1986
Wounds in the face, hands, legs and in the back
EUR 3 0,000
Thirty thousand euros
14
Mr MuslimVakhayev, born in 1981
Wounded
EUR 30,000
Thirty thousand euros
15
Mr Salambek Vakhayev, born in 1992
Wound s to the head
EUR 30,000
Thirty thousand euros
16
Ms Aset Gaskalova, born in 1965
Mr Khasmagamed Vakhayev, born in 1960, husband
Son , Rustam Vakhayev, aged 13, wounded (no documents)
EUR 90,000
Ninety thousand euros
17
Ms Luiz a Guchigova, born in 1969
Ms Larisa Guchigova, born in 1988, sister
EUR 60,000
Sixty thousand euros
18
Ms Khava Dadayeva, born in 1978
Ms Zara Masayeva, born in 1950, mother-in-law
EUR 60,000
Sixty thousand euros
19
Ms Tamara Dzhamaldinova, born in 1966
Mr Adam Dadayev, born in 1976, nephew
Daughter Khava broke collar bone (no documents )
EUR 90,000
Ninety thousand euros
20
Ms Aliya Debirova, born in 1932
Mr Abdul-Muslim Debirov, born in 1928, husband
EUR 60,000
Sixty thousand euros
21
Ms Khadisht Ismailova, born in 1970
Ms Lyuba Shakhayeva, born in 1952, mother-in-law ;
Mr Islam Shakhayev, born in 1988, brother-in-law
Operated upon splinter wounds in the left part of the body
EUR 12 0,000
One hundred and twenty thousand euros
22
Ms Maret Musayeva, born in 1970
Wounded in the back
EUR 30,000
Thirty thousand euros
23
Ms Malizha Osmayeva, born in 1964
Mr Malgabek Osmayev, born in 1957, husband ;
EUR 60,000
Sixty thousand euros
24
Ms Bela Orsamikova, born in 1977
Ms Tamara Mestoyeva, born in 1950, mother,
Mr Islam Orsamikov, born in 1982, brother ;
Mr Umar Orsamikov, born in 1973, brother ;
Mr Ali Orsamikov, born in 1972, brother
EUR 120,000
One hundred and twenty thousand euros
25
Mr Makhmud Satuyev, born in 1967
Ms Zaluba Dakayeva (also spelled Dakhayeva) (also known as Tamara Satuyeva), born in 1937, mother;
Ms Zaibula (also spelled Tulita) Satuyeva, born in 1905, step-mother
EUR 80,000
Eighty thousand euros
26
Ms Zula Soslambekova, born in 1956
Ms Zalpa Soslambekova (also spelled Saslambekova), born in 1936, mother;
Mr Supiyan Soslambekov (also spelled Saslambekov), born in 1959, brother;
Ms Raisa Soslambekova (also spelled Saslambekova), born in 1961, daughter-in-law
EUR 100,000
One hundred thousand euros
27
Ms Zara Sulimanova, born in 1964
Mr Abdulshakhit Sulimanov, born in 1934, father
EUR 60,000
Sixty thousand euros
28
Ms Mani Umalatova, born in 1957
Mr Salambek (also spelled Soslambek) Umalatov, born in 1984, son
EUR 60,000
Sixty thousand euros
29
Ms Roza Khankerkhanova, born in 1962
Mr Idris Dovletmurzayev (also spelled Davletmurzayev), born in 1988, son
EUR 60,000
Sixty thousand euros
[1] . See, for example , Ergi v. Turkey , 28 July 1998 , Reports of Judgments and Decisions 1998 ‑ IV ; Isayeva and Others v. Russia , nos. 57947/00 , 57948/00 and 57949/00 , 24 February 2005 ; Isayeva v. Russia , no. 57950/00 , 24 February 2005; Khatsiyeva and Others v. Russia , no. 5108/02 , 17 January 2008 ; Akhmadov and Others v. Russia , no. 21586/02 , 14 November 2008 ; and Mezhidov v. Russia , no. 67326/01 , 25 September 2008 .