Case of European Court of Human Rights, March 20, 2008 (case CASE OF BUDAYEVA AND OTHERS v. RUSSIA)

Actor:BUDAYEVA AND OTHERS
Defense:Russia
Resolution Date:March 20, 2008
 
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FIRST SECTION

CASE OF BUDAYEVA AND OTHERS v. RUSSIA

(Applications nos. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02)

JUDGMENT

STRASBOURG

20 March 2008

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Budayeva and Others v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Christos Rozakis, President,

Nina Vajić,

Anatoly Kovler,

Elisabeth Steiner,

Khanlar Hajiyev,

Giorgio Malinverni,

George Nicolaou, judges,

and Søren Nielsen, Section Registrar,

Having deliberated in private on 28 February 2008,

Delivers the following judgment, which was adopted on the last-mentioned date:

PROCEDURE

1. The case originated in five applications (nos. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by six Russian nationals, Ms Khalimat Khuseyevna Budayeva and Ms Fatima Khuseynovna Atmurzayeva on 15 March 2002, by Ms Raya Meliyevna Shogenova on 10 April 2002, by Ms Nina Nikolayevna Khakhlova on 18 February 2002 and by Mr Andrey Aleksandrovich Shishkin and Ms Irina Ilyinichna Shishkina on 9 March 2002 ("the applicants").

2. The applicants, who had been granted legal aid, were represented by Mr Dzagashtov, a lawyer practising in Nalchik, Mr Manov, a lawyer practising in Moscow and Mr Serdyukov, a lawyer practising in Pyatigorsk. The Russian Government ("the Government") were initially represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their Representative, Mrs V. Milinchuk.

3. Relying on Articles 2, 8 and 13 of the Convention and on Article 1 of Protocol No. 1 to the Convention, the applicants alleged that the national authorities were responsible for the death of Mr Budayev, for putting their lives at risk and for the destruction of their property, as a result of the authorities' failure to mitigate the consequences of a mudslide which occurred in Tyrnauz on 18-25 July 2000, and that no effective domestic remedy was provided to them in this respect.

4. The Chamber decided to join the proceedings in the applications (Rule 42 § 1).

5. By a decision of 5 April 2007 the Court declared the applications admissible.

6. The applicants and the Government each filed further written observations (Rule 59 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

7. The applicant in the first application (no. 15339/02), Ms Khalimat Khuseyevna Budayeva, was born in 1961 and lives in Tyrnauz, in the Elbrus District of the Republic of Kabardino-Balkariya (KBR), Russia (the first applicant).

8. The applicant in the second application (no. 21166/02), Mrs Fatima Khuseynovna Atmurzayeva, was born in 1963 and lives in Tyrnauz (the second applicant).

9. The applicant in the third application (no. 20058/02), Ms Raya Meliyevna Shogenova, was born in 1953 and lives in Nalchik in the KBR (the third applicant).

10. The applicant in the fourth application (no. 11673/02), Ms Nina Nikolayevna Khakhlova, was born in 1955 and lives in Tyranuz (the fourth applicant).

11. The applicants in the fifth application (no. 15343/02), Mr Andrey Aleksandrovich Shishkin and Mrs Irina Ilyinichna Shishkina, were born in 1958 and 1955 respectively and live in Tyrnauz (the fifth and the sixth applicants).

12. The facts of the case are partially in dispute between the parties. Their submissions on the circumstances in which a mudslide swept through the town of Tyrnauz in 2000 are set out in Section A below. The manner in which these events affected the individual applicants is set out in Section B. A description of the materials submitted to the Court by the applicants is given in Section C.

A. The circumstances concerning the mudslide

1. Background facts

13. The town of Tyrnauz is situated in the mountain district adjacent to Mount Elbrus, in the central Caucasus. Its population is about 25,000 inhabitants. The general urban plan of the town was developed in the 1950s as part of a large-scale industrial construction project. Two tributaries of the Baksan River passing through Tyrnauz, the Gerhozhansu and the Kamyksu, are known to be prone to causing mudslides.

14. The first documentary evidence of a mudslide in the Gerhozhansu River dates back to 1937. Subsequently mudslides were registered almost every year; occasionally they hit the town, causing damage. The heaviest mudslides registered prior to 2000 occurred on 1 August 1960, on 11 August 1977 and on 20 August 1999. According to the Government, the series of mudslides of 18-25 July 2000 were the strongest and most destructive of all.

15. The inhabitants and authorities of Tyrnauz are generally aware of the hazard, and are accustomed to the mudslides which usually occur in the summer and early autumn.

16. The first technical research into a scheme to protect Tyrnauz from the mudslides was carried out in the 1950s, and by 1959 a number of proposals had been made. The scheme chosen by the authorities following a comparative feasibility study provided for the construction of a feed-through mud retention collector. Construction work began, but in 1960 this was disrupted by an exceptionally strong mudslide, and the project had to be corrected and extended accordingly. The construction of the collector was finished in 1965 and operated successfully for 35 years, apparently providing sufficient defence against the mudslides. In 1977 a technical review was carried out following a particularly strong mudslide which seriously damaged some sections of the collector, and it was considered necessary to carry out repair work. The collector was fully repaired by 1982.

17. In addition, in early 1999 the local authorities put into operation a mud retention dam in the river gorge of Gerhozhan, upstream from the mud retention collector. The dam was intended to enhance the protection of Tyrnauz from mud and debris flows. It measured 160 m x 38 m x 40 m and was built with 6,000 cubic metres of reinforced concrete and 2,000 tons of metal structures.

2. The condition of the dam in the summer of 2000

18. On 20 August 1999 a mud and debris flow hit the dam, seriously damaging it.

19. On 30 August 1999 the director of the Mountain Institute, a state agency whose mandate included monitoring weather hazards in high-altitude areas, called for an independent survey of the damage caused to the dam by the mudslide. He made recommendations to the Minister responsible for Disaster Relief of the KBR concerning the composition of a State Commission for the survey.

20. On the same day he also sent a letter to the President of the KBR, calling for emergency clean-up and restoration work to the dam and for an early warning system to be set up to raise the alarm in the event of a mudslide (see the full text in Section C "Documents submitted by the applicants").

21. On 17 January 2000 the acting director of the Mountain Institute sent a letter to the Prime Minister of the KBR, warning about the increased risk of mudslides in the coming season. He stated that the dam was seriously damaged, that its reconstruction appeared unfeasible at that stage and that, consequently, the only way to avoid casualties and mitigate the damage was to establish observation posts to warn civilians in the event of a mudslide, for which he requested a mandate and financial support (see the full text in Section C below).

22. On 7 March 2000 the Head of the Elbrus District Administration sent a letter to the Prime Minister of the KBR in which he referred to the imminent large-scale mudslide and requested financial aid to carry out certain emergency work on the dam. In his request he invoked possible "record losses" and casualties (see the full text in Section C below).

23. On 7 July 2000 the assistant director and the head of research of the Mountain Institute attended a session at the Ministry for Disaster Relief of the KBR. At the meeting they reiterated the warning about the risk of mudslides in that period and requested that observation points be set up in the upper sections of the Gerhozhansu River, in order to monitor the river at all times and to issue an emergency warning in the event of a mudslide.

24. On 10 July 2000 the assistant director of the Mountain Institute reported to the agency director that he had warned the Ministry for Disaster Relief of the KBR of the forthcoming mudslide and requested the setting up of twenty-four hour observation posts.

25. It would appear that none of the above measures were ever implemented.

3. The mudslide of 18-25 July 2000

26. At about 11 p.m. on 18 July 2000 a flow of mud and debris hit the town of Tyrnauz and flooded some of the residential quarters.

27. According to the Government, this first wave caused no casualties. However, the applicants alleged that at least one person was killed. In particular, the second applicant claimed to have witnessed the death of her neighbour Ms B, born in 1934, who was trapped in the debris and drowned in the mud before anybody could help her. She also alleged that she had witnessed a Zhiguli vehicle with four men in it being carried away by the mudslide.

28. According to the Government, following the mudslide of 18 July 2000 the authorities ordered the emergency evacuation of the residents of Tyrnauz. The police and local officials went round people's homes to notify them of the mudslide and to help evacuate the elderly and disabled. In addition, police vehicles equipped with loudspeakers drove round the town, calling on residents to evacuate because of the mud hazard.

29. The Government did not specify when exactly these measures were taken. The applicants agreed that the alarm was indeed raised through loudspeakers once the mudslide had struck, but no advance warning was given. They claimed that they...

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