Gasangusenov v. Russia and the right to life: When the ECtHR establishes state responsibility with the wrong reasoning

Dr Dilek Kurban (Fellow and Lecturer, Hertie School, and Max Weber post-doctoral fellow, EUI, 2021-2022)

What should a supranational human rights court do when faced with a case concerning extrajudicial execution of civilians by a state agent? Certainly not what the European Court of Human Rights (ECtHR or the Court) has done in the case of Gasangusenov v. Russia: framing the case as an unintended consequence of counter-terrorism.

In a unanimous judgment issued on 30 March 2021, the Third Chamber of the ECtHR found a substantive violation of Article 2 of the European Convention on Human Rights (ECHR) in a case concerning the killing of two civilians.  It based its finding on the disproportionate use of lethal force during an alleged special anti-terrorism operation, rather than on an intentional and arbitrary killing by a state agent, seemingly covered up by the entire state apparatus. Doing that, the Court contradicted its own statement of the facts of the case. It also engaged in inconsistent judicial reasoning by, on the one hand, concluding that the authorities had “staged” the crime scene and, on the other, not accepting the applicant’s claim that the aim was to cover up an extrajudicial execution. More broadly, the ECtHR demonstrated, once again, its lack of appreciation for the indispensable role of supranational courts for victims of state violence in authoritarian contexts. In calling for an effective domestic investigation into the killings, the ECtHR acted with the presumption that Russian courts are able and willing to hold the law enforcement accountable for gross human rights violations – presumption disproven by its own jurisprudence on Russia.

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