Communicated on 19 June 2017
THIRD SECTION
Application no 56120/13
Gasan Mamatovich BAYSULTANOV
against Russia
lodged on 24 July 2013
STATEMENT OF FACTS
The applicant, Mr Gasan Baysultanov, is a Russian national, who was born in 1980 and lives in Khasavyurt, Dagestan, Russia. He is represented before the Court by Mr G.K. Kostrov, a lawyer practising in Makhachkala. The applicant is the husband of Ms Saniyat Magomedova, who was born in 1983.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. Killing of the applicant’s wife and surrounding circumstances
At the material time the applicant and his wife, Ms Saniyat Magomedova, who was pregnant, resided in 83 Schorsa Street in Khasavyurt.
On 2 November 2006 the law-enforcement authorities obtained information that Mr A.B., who was wanted as a leader of an illegal armed group involved in terrorist activities, would sleep at the applicant’s house that night.
At about 3 or 4 a.m. on 3 November 2006 police officers from the Kazbekovskiy district police station (“the ROVD”), the Novolakskiy district police station, the Khasavyurt town police station and the consolidated police unit of the Russian Ministry of the Interior in Dagestan (“the police unit”) organised a special operation against Mr A.B. The police arrived in the vicinity of the applicant’s house in numerous vehicles, including armoured personnel carriers (“APCs”), cordoned off the area around the applicant’s house and waited for sunrise in the nearby houses of local residents and other buildings.
At about 6 a.m. on 3 November 2006 the applicant and his wife stepped out from the house and walked to the outhouse. The police officers of the ROVD, who were waiting across the street in the applicant’s neighbours’ house at 85 Schorsa Street, opened fire and threw grenades. As a result, the applicant’s wife, Ms Magomedova, was shot dead next to the outhouse. Her body had multiple gunshot and some grenade explosion wounds. The applicant, who had been walking next to her, received a perforating gunshot to the chest and fell bleeding to the ground. Then he was arrested and taken to hospital.
Mr A.B. did not stay at the applicant’s house on the night of the special operation.
After the special operation ended, the authorities found a Kalashnikov model machine gun no. ХГ 7195 from 1960 with ammunition in the courtyard. The machine gun was set on automatic fire; its chamber was empty. Also, sixty-four spent cartridges and a beanie were found at the scene.
On 3 November 2006 the Khasavyurt town prosecutor’s office opened criminal case no. 2-27/07 against the applicant on suspicion of involvement in illegal armed groups and assaulting police officers during the special operation conducted in his house.
On 7 November 2006 the applicant was charged with, inter alia, membership of an illegal armed group, assault on police officers and unlawful possession of firearms.
In February and March 2007 the Dagestan Supreme Court examined the criminal case against the applicant. During the trial the applicant stated that he had known Mr A.B. as a former colleague and that on the night of 2 and 3 November 2006 he had not stayed in his house. He also stated that early in the morning on 3 November 2006 he had been walking with his wife, Ms Magomedova, to the outhouse, when they had been shot. The police, who had opened fire, had killed his wife and wounded him in the chest. He had lost consciousness and had regained it only when the police officers were putting him into their vehicle. He had been unable to stand on his feet, and the police, who had thought that he had been resisting arrest, had hit him in the chest with the butt of a machine gun, breaking a few of his ribs.
On 13 March 2007 (in the documents submitted the date was also referred to as 19 and 22 March 2006) the applicant was acquitted by a jury of membership of an illegal armed group and assault on police officers, but was sentenced to a one-and-a-half-year term in a correctional colony for unlawful possession of firearms. Upon examination of the applicant’s case (on page 5 of the sentence), the court stated that the four police officers of the ROVD (Mr A.Sa., Mr M.U., Mr A.Sh. and M.Az.) had given the investigators false statements about the gunfire the applicant and his wife had allegedly directed at them, as the officers had wanted to justify their “quite inadequate and unjustified by the circumstances actions” of opening fire unprovoked, as a result of which they had wounded the applicant and killed his wife. Furthermore, on page 9 of the sentence the court stated the following:
“ ... thus, the evidence presented by the prosecution shows neither that Mr Baysultanov committed the assault on the police officers, nor that he opened fire with a machine gun. In connection with this, the court has serious doubts as to the truthfulness of the statements given by the ‘victims’ – Mr A.Sa., Mr M.U. – and witnesses – Mr A.Sh. and M.Az. – as well as statements of other witnesses that state that Mr Baysultanov had run out into the courtyard whilst firing at them with a machine gun ... The statements of Mr A.Sa., Mr M.U., Mr A.Sh. and M.Az. are not actually confirmed by the prosecution evidence; they are essentially refuted by it ...
In such circumstances, based only on the statements of the ‘victims’, Mr A.Sa., Mr M.U., and witnesses, Mr A.Sh. and M.Az., who are interested parties in the proceedings and who, without their commanders’ orders, opened fire with their service firearms and wounded Mr Baysultanov and killed his spouse ... the court cannot conclude that it has been proven that Mr Baysultanov opened fire with the machine gun and even more so, that he can be found guilty of assault on the police officers [... who ...] with the aim of justifying their actions, stated that that Mr Baysultanov had been the first to open fire ...”
On 19 July 2007 the applicant’s sentence was upheld on appeal by the Russian Supreme Court.
B. Official investigation into the killing of Ms Saniyat Magomedova
Shortly after the special operation, the applicant’s relatives complained to the authorities about the killing of Ms Magomedova, alleging that the use of lethal force against her had not been necessary and requesting that an investigation be opened to establish the circumstances of the incident.
On 3 November 2006 investigators from the Khasavyurt investigations department of the Dagestan prosecutor’s office (“the investigators”) examined the crime scene.
On the same date, 3 November 2006, the investigators opened criminal case no. 610531.
On an unspecified date between 3 and 7 November 2006 the experts took gunshot-residue swabs from the body of Ms Magomedova; no residue was found.
On 7 November 2006 the experts took gunshot-residue swabs from the applicant; no residue was found.
The documents submitted show that after the opening of the criminal case and prior to the burial, no forensic expert examination of Ms Magomedova’s body was carried out.
It appears that at some point between November 2006 and June 2009 the investigation in criminal case no. 610531 was terminated. This decision was subsequently overruled by the supervising prosecutor as unlawful.
On 8 June 2009 the investigation into the circumstances of the killing of Ms Saniyat Magomedova by the police was reopened under a different number – 910273.
From the documents submitted it appears that on at least five occasions between 2009 and 2013 the criminal case was terminated for lack of corpus delicti in the actions of the police officers, but each termination was subsequently overruled as unlawful and groundless and the proceedings were re-initiated. The steps taken by the investigators during the periods when the investigation was pending could be summarised as follows.
On 7 April 2010 the investigators exhumed the body of Ms Magomedova for a post-mortem examination. On 12 May 2010 the experts concluded that they could not establish the cause of death and that Ms Magomedova had sustained numerous gunshot and grenade wounds.
On 16 March 2011 a new forensic examination was ordered. On 1 April 2011 the experts concluded that owing to the lack of a forensic examination of her body shortly after her death, it was impossible to establish the cause of death and the order in which she had sustained the wounds.
On 12 November 2011 the investigation in criminal case no. 910273 was terminated for lack of corpus delicti in the actions of the police officers.
On an unspecified date in the beginning of 2012 the termination of the criminal case was overruled by the investigators’ supervisors as unlawful and the investigators were ordered to reopen the criminal case. The proceedings were reopened.
On various dates in February 2012 the investigators questioned the ROVD officers A.Sa. M.U. and M.Az. with the assistance of a polygraph. All of them stated that they had seen a machine gun either in the applicant’s hands or those of his wife and that one of them had opened fire at the police and that they had heard someone screaming “Allahu akbar!” (“God is great”) right before the shooting started.
On 16 July 2012 the investigation in criminal case no. 910273 was terminated again on the same grounds.
On 17 July 2012 the termination of the criminal case was overruled by the supervisors as unlawful and the investigators were ordered to reopen the criminal case.
On 2 August 2012 the investigators obtained the results of the expert examination of explosives similar to those used during the special operation in November 2006. According to them, the grenade which had exploded during the operation in the applicant’s courtyard could have been thrown either by the applicant, his wife or a third person from outside of the courtyard.
On 20 October 2012 (in the documents submitted the date was also referred to as 22 October 2012) the investigation in criminal case no. 910273 was terminated again on the same grounds.
On 30 April 2013 the supervising prosecutor overruled the termination of the criminal case as unlawful and ordered that the investigation be re‑opened.
On 13 June 2013 the investigation in criminal case no. 910273 was terminated yet again on the same grounds.
On 12 August 2013 the deputy Dagestan Prosecutor overruled the termination of the criminal proceedings as unlawful and on 19 August 2013 the investigation in criminal case no. 910273 was reopened following the supervisor’s orders.
On unspecified dates before September 2013 the investigators questioned eleven officers of the ROVD and nine officers of the police unit concerning the special operation of 3 November 2006. All of them gave statements to the effect that either they had not opened fire themselves or that they did not know who had opened it, or that they had returned fire towards the applicant and his wife.
On unspecified dates prior to September 2013 the investigators also questioned the applicant’s neighbour Mr N.G. The latter stated that the leader of an illegal armed group, Mr A.B., had been the applicant’s friend and had stayed in the applicant’s house on several occasions. From the documents submitted it appears that Mr N.G. had a history of mental illness and had been hospitalised for psychiatric care on several occasions. On 16 April 2008 Mr N.G. was deprived of his legal capacity by the Khasavyurt Town Court.
On unspecified dates before September 2013 the investigators questioned the applicant, who stated that early in the morning of 3 November 2006 his wife had woken him and told him that thieves had been in their vegetable garden. He had grabbed the machine gun which had been in the house and they had stepped outside. They had been walking to the outhouse when they had been shot at and his wife had fallen to the ground. He had himself received a bullet to the chest and fell. Then he had been detained by the police.
On 19 September 2013 the investigators yet again decided to terminate the criminal proceedings in case no. 910273 for lack of corpus delicti in the actions of the police officers. It is unclear when the applicant was informed thereof.
On 2 April 2014 the applicant and his relatives appealed against the last termination of the criminal case to the Sovetskiy District Court in Makhachkala, stating, in particular, that they had not been provided with information on the progress of the criminal case and that the circumstances of the incident, such as the absence of gunshot residue on the applicant and Ms Saniyat Magomedova and the empty chamber of the Kalashnikov machine gun found in the applicant’s courtyard showed that the police officers had opened fire unprovoked and had killed Ms Magomedova and seriously wounded the applicant. Therefore, it was necessary to reopen the criminal case and take a number of steps, such as a ballistic expert examination of the positions of the ROVD police officers during the special operation, to elucidate the circumstances of the incident.
On 23 June 2014 the Sovetskiy District Court rejected the appeal.
On 2 July 2014 the applicant’s relatives appealed against the above decision to the Dagestan Supreme Court. The outcome of these proceedings is unknown.
According to the applicant’s submission, he was not duly informed of the investigators’ decisions in the criminal proceedings concerning the circumstances of the killing of his wife and his own wounding and that his and his relatives’ attempts to gain access to the case-file material were to no avail as the investigators refused to give them permission.
C. Relevant domestic law
For a summary of relevant domestic law see Dalakov v. Russia (no. 35152/09, §§ 51-53, 16 February 2016).
COMPLAINTS
The applicant complains under Article 2 of the Convention that his pregnant wife, Ms Saniyat Magomedova, was killed during the special operation carried out in their house on 3 November 2006 because of a disproportionate use of lethal force by the police officers involved. He further alleged that the authorities had failed to conduct an effective investigation into the killing.
The applicant also complains, under Article 2 of the Convention, that he was seriously wounded during that special operation as a result of a disproportionate use of lethal force by the police officers and that the authorities had failed to conduct an effective investigation into the matter.
QUESTIONS
1. 1. Has the applicant’s and Ms Saniyat Magomedova’s right to life, ensured by Article 2 of the Convention, been violated in the present case? In particular, did the applicant’s wife’s death result from a use of force which was absolutely necessary? Was it absolutely necessary to resort to a use of force which threatened the applicant’s life?
2. Having regard to the procedural protection of the right to life (see paragraph 104 of Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII), was the investigation by the domestic authorities into the circumstances of Ms Saniyat Magomedova’s killing and the applicant’s wounding in breach of Article 2 of the Convention?
3. The Government are requested to furnish a copy of the materials of the internal police inquiry(-ies) conducted into the circumstances of the special operation of 3 November 2006.
4. The Government are invited to provide a summary listing in chronological order all of the procedural decisions and steps taken by the investigation in criminal cases nos. 610531 and 910273 and a copy of the documents reflecting those steps from the respective criminal case files.
5. The parties are requested to produce a copy of all of the domestic courts’ decisions taken in respect of criminal cases nos. 610531 and 910273 and other relevant proceedings, including civil proceedings, relating to the special operation of 3 November 2006 as well as the steps taken by the authorities in respect of the police officers involved in the incident.
Full & Egal Universal Law Academy