Strasbourg Judgment on the Beslan Hostage Crisis

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The European Court today issued a landmark right to life judgment in Tagayeva and Others v. Russia, dealing with the hostage crisis in the school in Beslan in 2004, in which hundreds of hostages lost their lives. The exceptionally detailed (and for the most part unanimous) judgment does the Court great credit, as does the nuance it shows in much of its factual assessment. (Kudos are also due to Kirill Koroteyev and the EHRAC/Memorial team representing some of the applicants). Together with the Finogenov v. Russia judgment, on the Dubrovka theatre hostage crisis, this will be a leading case on the right to life in extraordinary situations. Unlike in Finogenov, the Court here finds a violation of the preventative aspect of Article 2 – indentifying the risk engaging the positive obligation is perhaps the most innovative part of the judgment. The Court also finds violations with regard to the effectiveness of the investigation and the planning of the operation. All in all its approach is somewhat less deferential towards the state than in Finogenov. UPDATE: Ed Bates has some early comments here.

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Jakob Cornides says

April 13, 2017

Many years ago, I traveled through what was then still the Soviet Union, and during an hours-long train-ride one passenger told me about how the Soviet authorities dealt with terrorists. The anecdote was about an airplane kidnapping, where the kidnappers had asked for the flight to be diverted to Finland. What did the Soviet authorities do? They had an airstrip somewhere in Russia dressed up as a "Finnish" airport, and some military officers dressed up as "Finnish police". Then the airplane was allowed to land on that airstrip, and all passengers, the kidnappers included, were allowed to leave the plane. When they had left the plane, they were all shot. All of them, the kidnappers and the other passengers, without distinction.

I don't guarantee the truth of this story, but that is what I heard. Against this backdrop, the condemnation does seem to have some plausibility.

However, one does wonder how exactly the ECtHR comes to its conclusions in a case like this. Whether measures to prevent such attacks or to free hostages are adequate is mostly a quaestio facti, which can be resolved only through the hearing of experts and direct witnesses. There is reference in the judgment to some experts reports, which were done by "independent experts" - however, they were "submitted by the applicants". The Russian government apparently did not submit any such reports - and while the summary of the case mentions the existence of one report drawn up by the North Ossetian Parliament, another one drawn up at the request of the Russian Federation Council, and a third one drawn up by a certain Yuri Saveleyev, it does not really come out very clearly how the Court used these various reports to establish the facts: were all of them saying the same, or if not, how were contradictions dissolved and the true facts established?

I don't see in this judgment any trace that the Court itself appointed and heard any experts, or that it heard any eyewitnesses. And I don't see such experts and witnesses appear in the videocast of the Court hearing.

In these circumstances, while one might appreciate that the ECtHR is establishing abstract principles for how such situations as the one at question should be dealt with, I feel rather unconfortable with the Court arriving at the conclusion that there have been human rights violations in the concrete circumstance. And I would feel equally uncomfortable had the outcome of the decision been the opposite.

If the ECtHR assumes competence to hear and decide such a case, should it not make greater efforts to establish the facts?

Hakimi Abdul Jabar says

April 15, 2017

Hi Marko!

Thanks for the post!

Amazingly, I'd just written a reply to Tanja de Bie on the Leiden Terrorism and Counter-Terrorism Facebook Group that I'm in at, about the discerning failure of the major prevention of major acts of terrorism despite the beginning of the historical notion of the punishment and prevention of such acts of terrorism from the days of the demised League of Nations to the declaration of the UNGA Res 49/60 (December 1994) and various UNSC Resolutions such as 1373 (2001) etc., there are hardly any case on major acts of terrorism that have been successfully prevented that have been reported. The latest judgment by the European Court of Human Rights proves my solemn observation.

Thus, it is quite disheartening and rather sad to note this particular piece of judgment :
To conclude, the Court finds it established that at least several days in advance the authorities had sufficiently specific information about a planned terrorist attack in the areas in the vicinity of the Malgobek District in Ingushetia and targeting an educational facility on 1 September.

Sadly, there are a number of us who actually studied the duties to punish and prevent such criminal acts and of course those trained to actually prevent such, but the fact remains vividly so. The glaring failure to prevent criminal acts of terrorism is quite discernible.