CEDH · CASELAW;CLIN;ENG — 2 décembre 2010

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .sA36B60A1 { font-family:Arial; font-style:italic } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 136 December 2010 Abuyeva and Others v. Russia - 27065/05 Judgment 2.12.2010 [Section I] Article 46 Individual measures Respondent State required to hold new, independent investigation into proportionality of use of lethal force   Facts – The applicants and their relatives lived in a Chechen village, which was bombed by the Russian military forces in February 2000. As a result, twenty-four of the applicants’ relatives died and some of the applicants and their relatives suffered grave bodily injuries. A criminal investigation was opened and the applicants were interviewed. The investigation was closed in March 2002 since the military action was found to have been legitimate in the circumstances. Following the Court’s judgment in the Isayeva v.   Russia case (no.   57950/00, 24   February 2005, Information Note no.   72), the investigation was reopened in late 2005 and the authorities conducted further interviews with ten more applicants granting them victim status. In June 2007 the investigation was once again closed with the same conclusion as in March 2002. That conclusion was further upheld by an additional military expert report – never submitted to the Court – which stated that the civilian evacuation had been properly organised but obstructed by Chechen rebels and that localised fire had been correctly chosen. Law – Article 2 (a)     Substantive aspect – The Court had accepted in the Isayeva judgment that the military operation at issue had pursued a legitimate aim, but found that it had not been planned and executed with the requisite care for the lives of the civilian population. There was no reason to depart from such a conclusion in the applicants’ case, in particular given that the Government had never submitted the additional military report allegedly confirming the proper organisation of the civilian evacuation and the correct choice of weapons. The respondent State had therefore failed to protect the right to life of the applicants and their relatives who had died or been wounded in the military operation. Conclusion : violation (unanimously). (b)     Procedural aspect – In the Isayeva judgment the Court had concluded that the domestic investigation had been inefficient. It criticised the substantial delay before the opening of the investigation, the lack of crucial information about the civilian evacuation and the failure to comprehensively assess human losses. Those who had been granted victim status had never been notified of the most important procedural decision taken in the criminal proceedings. Lastly, the Court found that the expert report of February 2002 – on the basis of which the investigation had been closed – did not appear to tally with the documents contained in the case file. A new investigation had taken place between November 2005 and June 2007. During this time, a number of additional witnesses were interviewed, including ten of the applicants and some of their relatives, and several people were granted victim status in the proceedings. However, all the major flaws of the investigation had persisted throughout that second set of proceedings, in particular concerning the crucial issues of responsibility for the safety of the civilian evacuation. No additional questions about these aspects were posed to persons involved at ground level and no one was charged with any crime. Furthermore, the decisions of the military prosecutor’s office to terminate the proceedings, on the basis of the expert reports prepared by army officers, raised serious doubts about the independence of the investigation. The Court noted again the surprising failure, even after seven years, to compile an exhaustive list of casualties in the attack and to communicate information to the applicants during the proceedings. In sum, the investigation carried out after the adoption of the Isayeva judgment had suffered from exactly the same defects as those identified in respect of the first set of proceedings and had not been effective within the meaning of Article 2. Conclusion : violation (unanimously). The Court also found a violation of Article   13 in conjunction with Article   2. Article 46: In carrying out the investigation in the applicants’ case, the respondent State had manifestly disregarded the specific findings of the Court’s judgment in the Isayeva case. To date, there had been no independent study of the proportionality and necessity of lethal force. Nor has there been any attribution of individual responsibility for the aspects of the operation which had caused loss of life and the evaluation of such aspects by an independent body, preferably of a judicial nature. It fell to the Committee of Ministers, acting under Article   46, to address the issue of what – in practical terms – might be required of the respondent State by way of compliance. However, the Court considered that a new, independent investigation should take place, which would bear due regard to the above conclusions in respect of the failures of the investigation carried out to date. Article 41: Awards to each applicant ranging between EUR   30,000 and EUR   120,000 in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes