Hostages and Human Rights at the European Court of Human Rights: The Tagayeva and Others v Russia Case

By Dr Sofia Galani, Lecturer in Law (University of Bristol Law School).

On Thursday, 13 April 2017, the European Court of Human Rights released one of the most anticipated decisions in the Court’s history – the Tagayeva and Others v Russia case. The judgment concerned the siege of the Beslan School, North Ossetia by Chechen fighters in September 2004 and the ensuing rescue operation by the Russian forces. During these tragic incidents, 330 people lost their lives, including more than a hundred children. Almost 180 of the victims were burnt to an extent that the identification of the remains and establishment of the cause of death were impossible.

The purpose of this blog is to summarise the key findings of the Court’s 239-page decision and provide a brief overview of the human rights obligations of states in the context of hostage-taking as discussed by the Court. Although this hostage-taking incident was of an unprecedented scale, terrorist groups have never stopped taking hostages within or outside Europe, and as a result European states have been involved in a number of rescue operations. Therefore, this judgment can help clarify the obligations that states have before, during and after a hostage-taking incident occurs.

The Facts

On 1 September 2004, only five minutes after a traditional Day of Knowledge ceremony had started to mark the opening of the academic year at School No. 1 in Beslan, a group of more than 30 separatist gunmen stormed the school taking almost 1,100 people hostage, including up to 800 children aged between several months and eighteen years. Although the security forces had been on high alert for heightened terrorist activity in the area and had received information that separatists had been planning to target a civilian object with the intention of causing massive loss of life, the school was protected by only one unarmed police officer during the day of the attack. Following the attack, the hostages were assembled in a gymnasium which was soon surrounded by a system of improvised explosive devices.

During the siege, the hostages were held in cramped conditions, and from the second day until the end of the siege, hostages were given neither food nor water. The Court heard that hostages and especially children had started drinking their urine to quench their thirst during the hot days of early September. On the third day of the siege, people started to lose consciousness and some children were hallucinating, having seizures and vomiting. Witnesses said to the Court that the ‘dry hunger strike’ was the reaction of the hostage-takers to the false reports released by the Russian agencies that only about 300 people had been taken hostage, and their failed attempts to establish negotiations with the Russian authorities. At 1 p.m. of the third day, two powerful explosions took place. One of them resulted in the roof of the gymnasium catching fire. The fragments of the burning ceiling fell on the hostages underneath killing and injuring dozens of them. At this stage, the Russian authorities intervened.

While hostages were trying to escape, many of them were caught up in crossfire between the Russian forces and the hostage-takers. Soon after, a third powerful explosion took place destroying the walls and roof of the gymnasium. Two tank hulls started firing at the hostage-takers who were using hostages as human shields. The last hostages were evacuated at around 4 p.m. – after almost three hours of fighting – while the gunfire and explosions lasted until after midnight. The next morning, the Russian authorities started collecting the bodies and clearing the debris. Later during the day, the debris were collected by bulldozers and trucks.

Numerous investigations took place following the siege, but, with the exception of the report prepared by the North Ossetian Parliament, the others concluded that no errors could be found in relation to the responses of the Russian authorities to the siege. The victims and families of the victims complained before the Court that the Russian authorities breached article 2 (right to life) of the European Convention of Human Rights because (1)  they failed to prevent the taking of hostages, although they knew there was a real risk of civilians being targeted; (2) the investigation failed to establish the causes of death of 116 victims and the type of ammunition employed during the operation; and (3) the planning and control of the rescue operation was inadequate leading to the use of excessive and indiscriminate lethal force.

The Judgment

The Court found in favour of the victims regarding the failure of the Russian authorities to prevent the terrorist attack. It was concluded that the repeated internal directives indicating a heightened terrorist threat in the area as well as the nature of the threat of hostage-taking of a civilian object prior to the attack sufficed to prove that the Russian authorities knew that there had been a real and immediate risk to life. However, the competent authorities failed both to warn the local population of the imminent threats as well as to take preventive security measures to protect the educational facilities in the region.

The Court also concluded that the investigation fell short of the article 2 ECHR requirements for an adequate investigation. A breach under the procedural limb of article 2 ECHR was found because of the failure of the relevant authorities to establish the cause of death of at least one third of the victims, and the exact circumstances and location of many more; to secure, collect and record evidence at the school building after the siege; to collect objective and impartial information about the type of ammunition and the use of weapons during the rescue operation; and to provide access to the victims to the key expert reports.

A number of failures were also identified in relation to the planning and control of the operation, particularly because of the lack of coordination amongst the key agencies leading the Court to find Russia in breach of its substantive obligations under article 2 ECHR. The Court reached the same conclusion in relation to the use of force employed by the Russian force during the operations which, although justified under the circumstances, was massive and indiscriminate.

Hostage-Taking and Human Rights

Given that the taking of hostages by definition has a very specific purpose to seize, detain, injure or threaten to kill a person for the purposes of compelling a third party to do or abstain from an act, it is time that the human rights of hostages came to the forefront. The Court’s findings have made a significant contribution towards the recognition and crystallisation of the obligations of states towards hostages. Despite the flexibility that states might retain in the fight against terrorism, the Court made it clear that states might bear human rights obligations towards hostages at three stages: before the taking of hostages – states have to take preventive measures, when they know or ought to have known of a real and imminent risk of hostage-taking; during the siege – states have to adequately plan and control a rescue operation aimed at releasing hostages; and in the aftermath of a hostage-taking situation – states have to effectively investigate the hostage-taking incident and the rescue operations by state authorities that caused loss of life.

While the Court repeatedly acknowledged the complexities of counter-terrorism operations and the challenges states face in balancing security interests with human rights, the Court appeared less deferential than it had been in the Finogenov v Russia case. In Finogenov, the Court had again been asked to examine the compliance of the Russian responses to the taking of hostages by Chechen fighters at the Dubrovka Theatre, Moscow with the Convention. In that case, the Court concluded that Russia could not have prevented the attack as there was no adequate information of an imminent and real risk of loss of life, and the use of gas that rendered the hostage-takers unconscious before the Russian forces stormed the theatre was not indiscriminate as the victims had a high chance of a survival depending on the effectiveness of the subsequent rescue efforts.

In contrast, in Tagayeva and Others the Court concluded unanimously that the information available to the Russian authorities was clear about the nature, imminence and location of the attack, and therefore Russia was under an obligation to take measures to prevent the taking of hostages. The Court was also firmly against the use of heavy ammunition during the rescue operation that was not more than absolutely necessary to minimise loss of life. To that conclusion also led the finding that, although Russia had more than two days to plan a rescue operation, the competent authorities had been unable to coordinate in an effective manner.

In relation to Russia’s procedural obligations under article 2 ECHR, the unanimous conclusion of the Court on the failures of the investigation reinforced the Court’s position (see Al-Skeini v the United Kingdom and Jaloud v the Netherlands) that states cannot rely on the challenges of investigations to avoid responsibility. This case further adds to the Court’s case-law by establishing that procedural obligations remain the same even in large-scale killings. Of particular importance is the Court’s finding with regards to the lack of forensic evidence and the failure of establishing the cause and circumstances of a death of a third of the victims. While the Court acknowledged the difficulties of the state in storing the bodies in the local mortuary, it was also adamant that the Russian authorities should have expected that the storming of the school would result in mass casualties as well as that they remained under their obligation to establish the circumstances of death of the victims, which was the core of the applicants’ grievance.

A regrettable omission on behalf of the Court is that it did not examine in more detail the problematic responses of the Russian authorities during the first two days of the siege. While the Court was critical of the lack of coordination amongst the competent authorities, there was no real evaluation of either the false information published by the Russian authorities in relation to the number of victims or the lack of a negotiation strategy that according to the victims infuriated the hostage-takers and worsened the conditions of the hostages. The numerous failures of the Russian authorities might justify the lack of focus by the Court on these specific aspects of the Russian response to the siege of the school. However, the Court’s assessment on the responses of states to hostage-taking situations that do not only fail to safely release the hostages, but also worsen their conditions of captivity would have been welcome.


In light of the recent opposition of Russia to the judgments of the Court, it remains uncertain whether the respondent state will comply with this decision, which also awarded damages to more than 300 victims. However, this cannot undermine the importance of the case, which after almost thirteen years made the voices of the victims of the Beslan School siege be heard, and set out clear human rights obligations for future hostage-taking situations.

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