“Positive obligation of the State to prevent any threat to life”

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April 15, 2017 by AK

The Kremlin has called the ECHR’s ruling on the 2004 Beslan attack “absolutely unacceptable.” And yet, unless Russia wins a reversal, it will have to accept it. After all, what did it expect? Everyone who has been paying attention knows that Russia bungled the siege and blocked attempts by victims’ relatives to get at the truth. Now the ECHR has concluded that the cause of the preventable deaths (330 people died in the attack and the siege, including 180 children) went beyond mere incompetence.

The court mostly found violations of Article 2 (right to life) of the European Convention on Human Rights. It was divided, 5-2, on whether the rescue operation was properly planned and whether more than necessary lethal force was used. The majority answered “yes” to both while the Azeri and Russian judges dissented. Typical, one’s tempted to say, but that’s not all there is to this ruling.

Remarkably, the court was unanimous in finding two other breaches of the right to life: a failure to take preventive measures and a failure of the “procedural obligation,” “primarily because the investigation had not been capable of leading to a determination of whether the force used by the State agents had or had not been justified in the circumstances.”

Judges Hajiyev (Azerbaijan) and Dedov (Russia), who dissented on the issues of adequate planning and excessive force, leave no doubt in their opinion about their support for the majority on the lack of prevention:

We take the view that the most important issue in the present case is positive obligation of the State to prevent any threat to life. We agree that there was a violation of the Convention on that point. Notwithstanding that the authorities knew that the threat was real, and that the terrorist group had gathered in a forested area, training and preparing for their next attack… no reasonable preventive measures had been taken by the authorities to locate the terrorists, isolate them, prevent their moving to any other populated area and destroy them. Also, no measures had been taken in Beslan, and the terrorists had reached the school unhampered.

Judge Pinto de Albuquerque of Portugal would go further than the majority in finding for the complainants – in contrast to Hajiyev and Dedov – but, like them, he acknowledges the importance of the “failure to prevent” finding by the court. Here’s one of the two reasons the ruling deserves praise, according to Pinto de Albuquerque:

…this judgment innovates, in so far as a positive obligation to prevent terrorist acts has been acknowledged in certain circumstances.

Obviously, such “positive obligation” should not be taken as a license to take away people’s liberties and everyday freedoms in the name of safety. I suspect that the judges were moved to introduce this innovation when they realized that the authorities had prior knowledge of the planned attack and even gave appropriate orders to the local police force but still, somehow, left School No. 1 defenseless – for reasons that seem by themselves an indictment of the Russian political system, now no less than then. (The quotes below are from the ECHR’s judgment.)

On 18 August 2004 the North Ossetian Ministry of the Interior issued the following telex (no. 1751) to all local departments of the interior:

“[The North Ossetian Ministry of the Interior] has received information indicating the movement of participants of [illegal armed groups] from the plains of [Ingushetia] and [Chechnya] to the mountainous and forested area along the border of [Ingushetia] and [North Ossetia]. A meeting of the fighters is presumably planned for mid-August of this year, following which they are intending to commit a terrorist act in [North Ossetia] similar to that in Budennovsk. According to the available information, the fighters plan to capture a civilian object with hostages in the territory of [North Ossetia]…”

Chechen separatists captured a hospital with some 1,500 people in Budennovsk in 1995 to demand a ceasefire in Chechnya. More than a hundred hostages died as a result. The reference to Budennovsk made it perfectly clear what kind of attack was to be expected in August or September 2004. The Ossetian police ministry sent out orders in late August putting the force on high alert for potential terrorist incursions.

However, when 1,200 people, including children up from kindergarten age, gathered in the courtyard of the Beslan school on September 1, it appears that there was only one unarmed policewoman present. The court provides this likely explanation:

According to some sources, on the morning of 1 September 2004 the Beslan traffic police were called to secure the passage of Mr Dzasokhov, the North Ossetian President, through the town. The applicants referred to the testimony of the traffic policemen and servicemen of the Pravoberezhny ROVD, saying that they had been instructed to take various positions along the route of Mr Dzasokhov’s convoy, and thus leave the school unprotected.

This sounds so much like Russia that it’s eminently plausible, although of course it would be a poor legal argument to claim “it’s true because it’s how things are in Russia.” Whether Mr. Dzasokhov’s passage was to blame or not, the fact is that the authorities had known about the attack and left the school unprotected.

Most facts of the case are not new to the Russian public, thanks to the independent media and the victims’ relatives. However the ECHR’s fact-finding procedure has validated them for a larger audience, and the court’s unanimous recognition of the Russian authorities’ failure in its duty to protect vindicates the view long held by many of the victims’ relatives.


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