In today’s Chamber judgment in the case of Tagayeva and Others v. Russia , the ECtHR ordered Russia to pay compensation of 3 million Euro to 409 Russian nationals who had either been taken hostage and/or injured in the incident, or are family members of those taken hostage, killed or injured. They made allegations of a range of failings by the Russian State in relation to the attack.
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?