European Court of Human Rights has declared its decision about Beslæn!
Avrupa İnsan Hakları Mahkemesi'nde Beslan'da yakınlarını yitiren ve zarar görenler tarafından Rusya Federasyonu aleyhine 2007 yılında açılan davanın 16 Mart'ta alınan nihai kararı bugün yayınlandı. Mahkemenin kararında olayların gelişimi ve ardından yaşananlar oldukça ayrıntılı ve tarafsız olarak yazıldı.
( http://hudoc.echr.coe.int/eng#{"itemid":"001-172660"} )
Mahkemenin karar özetinin ve 2 hakim tarafından yazılan şerh yazısını aşağıda bulabilirsiniz. Mahkeme toplam 4 milyon Euro kadar bir cezaya çarptırdı RF'yi, maddi tazminat miktarlarını da genel olarak belirledi ancak herbir davacının tazminat talebinin tek tek belirlemenin mahkemenin imkanlarını aştığını bildirdi.
Mahkeme RF'yi dört farklı suçlamadan dolayı tazminata mahkum etti. Bunlar:
1. Bu tür can kaybına sebep olabilecek saldırıların önlenmesi, olursa zararın minimize edilmesi için gerekli önleyici tedbirleri -yeterince- almamak;
2. Müdahale ile ilgili soruşturmayı gerekli ciddiyette yapmamak ve operasyonda kullanılan müdahale cinsi ve miktarının gerekli olup olmadığını sorgulamamak;
3. Operasyonda kullanılan öldürücü silahlarla yapılan müdahalenin plansız ve kontrol dışı bir şekilde yapılmış olması dolayısıyla can kaybını minimize etmeyi amaçlamamış olması;
4. Müdahalede güvenlik güçlerinin kullandığı, özellikle hedef gözetmeyen, imha silahlarının müdahale için mutlak gerekli olan miktardan fazla olması dolayısıyla can kaybının artması. (Paragraf 639)
Mahkeme RF'nu bu kararda belirtilen hususları terörizmle olan mücadelesinde ve gerekli kanuni düzenlemeleri yaparken dikkate almaya çağırdı ancak henüz RF bünyesindeki Ulusal soruşturma / Mahkemenin ( no. 20/849 ) devam etmekte olduğunu göz önüne alarak "gerekli soruşturmanın yapılmaması" suçlamasını bir karara bağlanmadı ancak RF'nu özellikle "hedef gözetmeyen silahların kullanımı" konusunu araştırmaya davet edip elindeki belgeleri, özellikle de uzman raporlarını, davacılarla paylaşması konusunda uyardı. (Paragraf 641) İki hakim şerh yazılarında rehineleri siper eden onlarca teröriste müdahale etmenin kaçınılmaz olarak büyük ölçekli olması gerektiğini ve can kaybının çok olmasının bunun doğal bir sonucu olduğunu söylemişler, mealen.
Buna göre:
Ölenlerin yakınlarına: 10.000 Euro;
Ağır yaralananlara: 7.000 Euro;
Orta dereceli yaralananlara: 5.000 Euro;
Hafif yaralı ve kaçıp kurtulan rehinelere : 3.000 Euro
Manevi Tazminat ödenecek.
Not: Rusya mahkemeleri güvenlik güçlerinin müdahale biçimiyle ilgili tazminat taleplerini reddetmişti. Ancak devlet kendi kararıyla ailelere yardımda bulunmuş, örneğin yakınlarını yitirenlere, RF'deki uygulamalara paralel olarak, sadece dört duvarı olan, zemini, kapıları vb. olmayan, birer daire vermişti.
AİHM'in bu kararı sadece yakınların yüreğine biraz su serpti: müdahaleyi orantısız ve hedef gözetmeyen güç kullanmaktan mahkum ederek...
Raporun sonuç kısmı, şerh yazıları ve tazminat miktarları:
" V. APPLICATION OF ARTICLES 41 AND 46 OF THE CONVENTION
633. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
634. Article 46 of the Convention provides:
“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”
A. Non-monetary measures
635. The first group of applicants sought that an investigation compliant with the requirements of Article 2 of the Convention be conducted into the events. They were of the opinion that no previous case was comparable to theirs in terms of the number of victims, including children, for whose deaths and injuries the authorities of the respondent Government had been responsible, whether by act or omission. Even if the investigation had failed in effectively establishing the facts, those responsible, acting under the Government’s control, were still easily identifiable and could be brought to justice if there was a fresh investigation into the facts of the present case. Independently from the request to have a new investigation, the applicants asked that domestic criminal case file no. 20/849 be fully disclosed to them.
636. The Government did not make any comments on this request.
637. The Court considers that this claim falls to be examined under Article 46 of the Convention, which, as interpreted in the light of Article 1, imposes on the respondent State a legal obligation to implement, under the supervision of the Committee of Ministers, appropriate general and/or individual measures to secure the right of the applicants which the Court has found to have been violated. The Court points out that, in the context of the execution of judgments in accordance with Article 46 of the Convention, a judgment in which it finds a breach imposes on the respondent State a legal obligation under that provision to put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach. If, on the other hand, national law does not allow – or allows only partial – reparation to be made for the consequences of the breach, Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate. It follows, inter alia, that a judgment in which the Court finds a violation of the Convention or its Protocols imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court and to make all feasible reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (see Assanidze v. Georgia GC, no. 71503/01, § 198, ECHR 2004‑II).
638. As the Court’s judgments are essentially declaratory, the respondent State remains free, subject to the supervision of the Committee of Ministers, to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court’s judgment (see Scozzari and Giunta v. Italy GC, nos. 39221/98 and 41963/98, § 249, ECHR 2000‑VIII). However, exceptionally, with a view to helping the respondent State to fulfil its obligations under Article 46 of the Convention, the Court will seek to indicate the type of measure that might be taken in order to put an end to a situation it has found to exist. In a number of exceptional cases, where the very nature of the violation found was such as to leave no real choice between measures capable of remedying it, the Court has indicated the necessary measures in its judgments (see, inter alia, Abuyeva and Others, cited above, § 237, and the cases cited therein; Nihayet Arıcı and Others v. Turkey, nos. 24604/04 and 16855/05, §§ 173-76, 23 October 2012; and Benzer and Others v. Turkey, no. 23502/06, § 217, 12 November 2013).
639. In the present case, the Court notes its findings under Article 2 of the Convention: firstly, the failure to take preventive measures that should have been able, when judged reasonably, to prevent or minimise the known risk to life; secondly, that the investigation into the events was not effective in that it was not capable of leading to a determination of whether the force used had or had not been justified in the circumstances, and the public scrutiny requirement was breached; thirdly, that the operation involving use of lethal force was not planned and controlled so as to ensure that any risk to life was minimised; and, fourthly, that the use of lethal force by the State agents, and in particular indiscriminate weapons, was more than absolutely necessary, and the weakness of the applicable legal framework contributed to the latter finding.
640. It is incumbent on the Committee of Ministers, acting under Article 46 of the Convention, to address the issue of what may be required of the respondent Government by way of compliance, through both individual and general measures (see also McCaughey and Others v. the United Kingdom, no. 43098/09, § 145, ECHR 2013). In the Court’s view, the above found violations should be addressed by a variety of both individual and general measures consisting of appropriate responses by the State institutions, aimed at drawing lessons from the past, raising awareness of the applicable legal and operational standards and deterring new violations of a similar nature. Such measures could include further recourse to non-judicial means of collecting information and establishing the truth, public acknowledgement and condemnation of violations of the right to life in the course of security operations, and greater dissemination of information and better training for police, military and security personnel in order to ensure strict compliance with the relevant international legal standards (see Abakarova, cited above, § 112). The prevention of similar violations in the future should also be addressed in the appropriate legal framework, in particular ensuring that the national legal instruments pertaining to large-scale security operations and the mechanisms governing cooperation between military, security and civilian authorities in such situations are adequate, as well as clearly formulating the rules governing the principles and constraints of the use of lethal force during security operations, reflecting the applicable international standards (see paragraphs 598-599 above).
641. With respect to the failure to investigate, the Court notes that investigation no. 20/849 is still open at national level, and that a number of important factual findings have been made in the context of other relevant proceedings. Having regard to these documents, the Court considers that the specific measures required of the Russian Federation in order to discharge its obligations under Article 46 of the Convention must be determined in the light of the terms of the Court’s judgment, and with due regard to the above-mentioned conclusions in respect of the failures of the investigation carried out to date. In particular, this investigation should elucidate the main circumstances of the use of indiscriminate weapons by the State agents and evaluate their actions in consideration of all the known facts. It should also ensure proper public scrutiny by securing the victims access to the key documents, including expert reports, which had been crucial for the investigation’s conclusions on the causes of death and the officials’ responsibility (see paragraphs 521-526 and 534-537 above).
B. Damage
1. The first group of applicants
642. Each applicant in the first group claimed non-pecuniary damage in connection with the violations found. They left the amounts to the Court’s discretion.
643. Those who had suffered injuries sustained during the security operation claimed damages related to the costs of their medical treatment and for loss of income due to their disabilities. They argued that, while some of their medical expenses had been covered by public funds or charities, those payments had not been made as a consequence of the unlawfulness of the actions of the State agents. The applicants invited the Court to make awards based on the severity of the injuries. Other applicants also claimed for future loss of earnings owing to the deaths of actual or future breadwinners. They submitted a detailed breakdown of the pecuniary damages claimed, based on the above considerations, the applicable retirement ages and the average income in North Ossetia in 2014.
2. The second group of applicants
644. The second group of applicants stressed that they should be awarded non-pecuniary damages for the violations found, in view of the unprecedented suffering they had encountered. The applicants stressed that their suffering had been enhanced by complete disappointment and loss of faith in the justice system and the entire State, which could not protect the most precious part of the society – its children. No one among the officials had been found responsible for the failure to protect the victims from the terrorist attack, or for the problems during the operation and the investigation. They asked the Court to decide on the awards that would be commensurate with their suffering.
645. This group of applicants also claimed pecuniary damage for future loss of earnings owing to the deaths of actual or potential breadwinners. They used a similar method as the first group of applicants and submitted a table detailing their alleged losses.
3. The Government
646. The Government reiterated that they had already submitted detailed information to the Court about the monetary compensation and non-monetary services provided to all applicants, their relatives and all victims of the terrorist act. They argued that, in the circumstances, the finding of a violation of the Convention would be sufficient just satisfaction. They stressed that the amounts of compensation provided by the State to the victims of the terrorist attack had exceeded the maximum that could be awarded by the Court for just satisfaction.
647. In so far as the applicants claimed pecuniary damage, the Government again drew the Court’s attention to the monetary and non-monetary compensation and services provided to all applicants and other victims of the terrorist acts. All victims, including the applicants, had been provided with medical assistance and medical treatment in the years following the events. They had been offered a wide range of social services and non-monetary compensation. Taking into account the scope and amount of help provided by the State to all victims, the Government considered that obliging the State to pay the applicants an additional amount of compensation would amount to “double responsibility” under international law. In any event, the Government asked the Court to apply an individualised approach in assessing the pecuniary damages claimed by the applicants.
4. The Court’s assessment
648. In so far as the applicants claimed pecuniary damages for their medical treatment, disabilities and loss of income from actual and future breadwinners, the Court reiterates that there must be a clear causal connection between the damage claimed and the violation of the Convention. Noting the absence of individual fact-finding about the circumstances of the deaths and injuries caused and the extensive schemes for medical and social rehabilitation put in place for the victims of the terrorist act, the Court does not find it appropriate in the circumstances of this case to make an award under this head.
649. In so far as the applicants claimed non-pecuniary damages, the Court reiterates that it has found a number of violations under Article 2 of the Convention. These violations relate to the authorities’ response to the terrorist attack and their failure to effectively investigate the State agents’ actions. Having regard to these findings, other steps taken with the aim of compensating and rehabilitating the victims of the terrorist act (see paragraphs 418-424 above), the seriousness of the damage caused, family links with the deceased and other individual circumstances, and acting on an equitable basis, the Court awards the amounts as detailed in the Appendix below.
C. Costs and expenses
1. The first group of applicants
650. The first group of applicants claimed reimbursement of the costs and expenses incurred in the domestic proceedings and in the proceedings before the Court. Three applicants, Mrs Ella Kesayeva, Mrs Emiliya Bzarova and Mrs Svetlana Margiyeva, represented themselves and other applicants in this group. They claimed a joint award of 97,900 euros (EUR), corresponding to 1,958 hours of work at a rate of EUR 50 per hour. The applicants also claimed EUR 9,190 for postal expenses incurred by the