The case of Budayeva and others V. Russia

The right to life is applicable exclusively in two types of situations: dangerous human-made activities and natural disasters beyond human control. The standards in both types of cases are the same, with the difference that in the case of natural disasters there are specifics regarding the obligation to establish an early warning system and a wider margin of assessment.

1. Basic information and circumstances of the case

The town of Tyrnauz, with a population of 25,000, is situated in the mountain district near Mount Elbrus.  Documentary evidence dating from 1937 indicates the region is prone to mudslides.  Because these mudslides occasionally hit the town, authorities built a retention collector in 1965 and a retention dam in 1999 to protect the town’s citizens.
On 20 August 1999, a mud and debris flow hit the dam, seriously damaging it.  On 17 January 2000, the Prime Minister was warned about the increased risk of mudslides in the coming season.  Reconstruction of the dam appeared unfeasible at that stage.  Consequently, the only way to avoid casualties was to establish observation posts to warn civilians of the threat of an impending mudslide.  This measure was never implemented.
On 18 July 2000, a flow of mud and debris hit the town and flooded some of the residential quarters.  Tyrnauz was then hit by a succession of mudslides until 25 July 2000. 
The six applicants lived in Tyrnauz. Following a mudslide on 18 July 2000, the authorities announced the emergency evacuation of the residents, however no advance warning was given. When the residents returned home the next day a second, more powerful mudslide destroyed a dam and damaged most of the houses in the town killing and injuring some local residents. The applicants’ flats and all their possessions were destroyed. The first applicant’s husband died and her youngest son sustained serious injuries. The applicants complained of violations of Arts. 2, 8 and 13 and Art. 1 of Protocol 1.


2. Application to the ECtHR for alleged violation of article 2 of the Convention

The applicants complained that the authorities had failed to comply with their positive obligations to take appropriate measures to mitigate the risks to their lives against the natural hazards. The first applicant complained that the domestic authorities were responsible for the death of her husband in the mudslide of July 2000. She and the other applicants also complained that the domestic authorities were responsible for putting their lives at risk, as they had failed to discharge the State's positive obligations and had been negligent in the maintenance of the dam, in monitoring the hazardous area and in providing an emergency warning or taking other reasonable measures to mitigate the risk and the effects of the natural disaster. They also complained that they had had no redress, in particular they had not received adequate compensation in respect of their pecuniary and non-pecuniary damage. They relied on Article 2 of the Convention which, in so far as relevant, provides:
“Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law“.

3. Summary of the ECtHR Decision

The Court held unanimously there had been a substantive violation of Article 2 (right to life) on account of Russia’s failure to protect the life of the applicants and the residents of Tyrnauz from mudslides which devastated their town. The authorities had received several warnings, including from the Mountain Institute and the District Administration, which should have made them aware of the risks and should have taken practical measures to ensure the safety of the population. The Court held that the authorities had omitted to implement planning and emergency relief policies exposing the residents to “mortal risk”.

The Court held there was also a violation of the applicants’ procedural rights under Article 2 on account of lack of an adequate judicial enquiry into the mudslide once it had occurred. The domestic courts had not made full use of their powers and had not called on witnesses or experts to establish the facts around the accident. The Court held that there was no violation of Article 1, Protocol No.1 or of Article 13.
Under Article 41 (just satisfaction), the Court awarded in respect of non-pecuniary damage €30,000 to Khalimat Budayeva, €15,000 to Fatima Atmurzayeva and €10,000 to each of the other applicants.

4. Positive Obligations Arising from the Right to Life

The Court held that states must establish legislative and administrative frameworks to deter any threat to the right to life.  The scope of this obligation depends on the origin of the threat and the extent to which it can be mitigated.  The obligation applies to imminent, clearly identifiable natural hazards.  It applies especially to recurring calamities affecting a distinct area developed for human habitation.
Authorities received several warnings in 1999 about the increased risk of mudslides in Tyrnauz.  One specifically stated that record casualties would result if recommended measures were overlooked.  There was no ambiguity in the scope or timing of the work needed to prevent such losses.  However, despite these clear warnings, steps were not taken to prevent harm coming to the citizens of Tyrnauz, and no reason was given as to why.
The Court concluded that there was no justification for authorities’ failure to implement land-planning and emergency relief policies in Tyrnauz.  Moreover, it found a causal link between administrative flaws which impeded implementation of relief policies and the death of Vladimir Budayeva, as well as the injuries sustained by other applicants.  Therefore, the authorities failed to discharge the positive obligation to establish a legislative and administrative framework to deter threats to the right to life required as required by the substantive aspect of art 2.

5. Procedural Obligations Arising from the Right to Life

The Court held that legislative and administrative frameworks must be properly implemented.  Authorities administering these frameworks must:
ascertain the circumstances under which the incident took place and any shortcomings in the operation of the regulatory system; and
identify State officials or authorities involved in the chain of events.
Where lives are lost, the judicial system must conduct an independent, impartial investigation that ensures appropriate penalties are applied to those who are responsible for failure of these legislative and administrative frameworks.
Within a week of the incident, the prosecutor's office commenced a criminal investigation into the circumstances of Vladimir Budayeva's death.  However, it confined the investigation to establishing the immediate cause of death, which was found to be the collapse of the building.  It failed to consider safety compliance and the authorities' responsibility.  Importantly, those questions were not the subject of any enquiry, whether criminal, administrative or technical.  In particular, no action was taken to verify numerous media allegations and victims' complaints concerning inadequate maintenance of the mud-defence infrastructure or the authorities' failure to set up the warning system.  Therefore, for failing to investigate shortcomings in the operation of the regulatory system and identify State officials or authorities involved in the chain of events, the Court concluded that there was a violation of the procedural aspect of art 2.

6. Importance and impact the judgment

The ECtHR considers Article 2 as determinant for the realisation of others’ rights in the Convention. The Court is restrictive, however, in considering Article 2 for environmental issues. There are only a few cases where the Court has found a violation of Article 2 in this context, namely where applicants have been exposed to dangerous activities or natural disasters. This case is one of them and it set the grounds for other to follow.

The Court reiterates that Article 2 does not solely concern deaths resulting from the use of force by agents of the State but also, in the first sentence of its first paragraph, lays down a positive obligation on States to take appropriate steps to safeguard the lives of those within their jurisdiction. This positive obligation entails above all a primary duty on the State to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life.

This case is a useful illustration of the obligations any state must abide by in maintaining the safety and wellbeing if its citizens, and should that obligation fail, the measures that must be exercised in determining how the failure came about.