Communicated on 3 September 2018
THIRD SECTION
Application no. 52867/15
Rezvan Abubakarovich GAYSULTANOV and Others
against Russia
lodged on 16 October 2015
STATEMENT OF FACTS
The applicants are:
(1) Mr Rezvan Gaysultanov, who was born in 1958,
(2) Ms Berlant Dashuyeva, who was born in 1963, and
(3) Mr Movsar Demayev, who was born in 1961.
The applicants are Russian nationals and reside in Achkhoy-Martan, the Chechen Republic. They are represented before the Court by lawyers from the Stichting Russian Justice Initiative (in collaboration with NGO Astreya) (SRJI/Astreya).
The first and second applicants are the parents of Mr Usman Gaysultanov, who was born in 1994.
The facts of the case, as submitted by the applicants, may be summarised as follows.
A. Killing of Mr Usman Gaysultanov and wounding of the third applicant
At the beginning of March 2013 the local law enforcement agencies and the military servicemen conducted special operation “Barrier 2013” aimed at arresting members of illegal armed groups hiding in the forests on the administrative border of Ingushetia and Chechnya.
According to the applicants, residents of the surrounding area − that is to say the residents of the Achkhoy-Martan district in the Chechnya and the Sunzhenskiy district in Ingushetia − were not informed about the operation. No warning announcements prohibiting or limiting access to the forest were made, and no other steps to warn the residents were taken.
At about 5.30 a.m. on 10 March 2013 the first and second applicants’ sons Usman and Mayrbek Gaysultanov, the third applicant and eleven other residents of Achkhoy-Martan boarded a URAL lorry to go to Bamut village − in the Sunzhenskiy district of the Ingushetia Republic on border with Chechnya – to pick ramsons (wild garlic). Ramson-picking is a traditional source of seasonal earnings for local families. On the way to the forest the lorry passed through a military checkpoint without being stopped. There were no warnings signs or markings around the area and no information concerning a special operation in the vicinity of the forest.
At about 8.40 a.m. whilst picking ramsons in the forest, the three men were subjected to a half-hour of mortar fire, during which time a total of about sixty projectiles exploded in that area. Usman Gaysultanov was severely wounded by one of the projectiles and both of his legs were torn off. The third applicant received serious injuries to the lower part of his body. The other pickers tried to help them, but the continuing fire being aimed at them prevented them from approaching the two men.
As soon as the pickers were able to leave the forest, they went to Bamut village, from where Usman Gaysultanov was taken to a hospital in Grozny and the third applicant to a hospital in Urus-Martan.
On the following day, Mr Gaysultanov died in the hospital.
B. Investigation of the incident
1. Opening of the criminal case
On 10 March 2013 the applicants complained about the death of Usman Gaysanov and wounding of the third applicant to the Achkhoy-Martan department of the interior (the police).
On 12 March 2013 the applicants were informed that their complaint had been forwarded to the 505th military investigations unit of the investigations committee of the Southern military circuit (505й военный следственный отдел следственного комитета РФ Южного военного округа) in Khankala, Chechnya (“the military investigators”).
On 8 April 2013 the military investigators returned the applicants’ complaint to the Achkhoy-Martan police for lack of evidence of the military servicemen’s involvement in the incident.
On 15 April 2013 the applicants complained to the Chechnya prosecutor and requested that a criminal investigation be initiated into the circumstances of Usman Gaysultanov’s killing and the wounding of the third applicant.
On 27 May 2013 the police returned the applicants’ complaint to the military investigators.
2. The investigation of criminal case no. 14/90/0017-13
On 26 June 2013 the 3rd military investigations unit of the investigations committee of the Southern military circuit (“the military investigators”) opened criminal case no. 14/90/0017-13 under Articles 109 (causing death by negligence) and 118 (causing serious bodily harm by negligence). The criminal case file was given “classified” status.
On 26 June 2013 (in the documents submitted the date was also cited as 26 June 2014) the first applicant was granted victim status in the criminal case and questioned. His statement was similar to the applicants’ submission before the Court. In addition, he explained that shortly after the incident he had gone to the crime scene with the lorry driver and collected the remaining parts of his son’s legs for burial.
On 14 July 2013 the forensic experts examined the third applicant’s injuries on the basis of the documents from the criminal case and his hospitalisation record and classified his wounds as “severe bodily injuries”.
On 7 December 2013 the military investigators ordered a complex service combat expert evaluation (комплексная служебно-боевая экспертиза) covering the general regulations, the use of artillery during a special operation, and the appropriate actions to be taken by officials. None of the questions put by the investigators before the experts pertained to the circumstances of the special operation of 10 March 2013.
On 7 February 2014 the military investigators again questioned the first applicant, who reaffirmed his previous statement.
On 26 February 2014 the military investigators decided to terminate the investigation in the criminal case for the lack of corpus delicti in the actions of the military servicemen. The decision also stated, amongst other things, the following:
“... Analysing the evidence collected in the criminal case, which is concordant and consistent in nature, one is obliged to conclude that the death of U. Gaysultanov and causing of the serious injuries to [the third applicant] M. Demayev were the results of their own negligence − as they had ignored the warning about the special operation and had gone to the vicinity thereof − and the improperly executed responsibilities of the officials of the Achkhoy-Martan administration and the police who had carried out the notification of local residents of the operation and the condoning of its area.
The case file materials concerning the officials of the Achkhoy-Martan district police department have been transferred into a separate file and forwarded to the Achkhoy-Martan inter-district investigations department of the Investigations Committee ...”
On 12 December 2014, in reply to their request of 5 December 2014, the applicants were provided with “a summary note” (выписка) describing the above decision. The entire text of the decision, as well as the rest of the contents of the criminal case file, were classified and therefore could not be divulged to the applicants.
3. The applicants’ appeals against the termination of the criminal case
On 28 January 2015 the applicants lodged an appeal against the aforementioned decision before the Grozny Garrison Military Court. They stated, amongst other things, that the ramson pickers had not been warned about the special operation and that this allegation had been confirmed by the fact that the case file materials concerning the opening of the criminal case against the local administration and the police for their failure to warn the population had been transferred into a separate file. In addition, there was no evidence that the pickers had been warned, and the checkpoint on the way to the vicinity of the special operation had not stopped the pickers’ lorry. Furthermore, the operation had been carried out in the area where the locals had habitually picked ramson for many years, but the authorities had disregarded that fact. Referring to Article 2 of the Convention, the applicants stressed that the investigation had been ineffective and requested that it be re-initiated. In particular, they pointed out that that the case had been opened only three months after the incident and that they had not been provided with adequate information on the progress of the investigation.
On 17 February 2015 the Grozny Garrison Military Court rejected the applicants’ appeal as unsubstantiated.
On 23 February 2015 the applicants lodged an appeal against the above decision with the North-Caucasus Circuit Military Court, stressing, amongst other things, that the residents had not been warned about the special operation and that the military investigators had found no evidence to the contrary.
On 16 April 2015 the North-Caucasus Circuit Military Court upheld the impugned decision and rejected the appeal as unsubstantiated.
C. Relevant domestic law
For a summary of relevant domestic law see Abakarova v. Russia, no. 16664/07, §§ 59-62, 15 October 2015.
COMPLAINTS
The applicants complain under the substantive limb of Article 2 of the Convention that the authorities failed to comply with their positive obligation to safeguard the right to life of Mr Usman Gaysultanov and the third applicant by failing to warn them about the special operation. Furthermore, the applicants allege that the authorities failed to comply with the negative obligation under Article 2 of the Convention as Mr Usman Gaysultanov and the third applicant had been subjected to mortar fire aimed at them by State agents.
Under the procedural limb of Article 2 of the Convention the applicants complain that the authorities failed to carry out an effective investigation into the matter.
Under Article 13 of the Convention, the applicants complain of the lack of effective remedies in respect of the above complaints
QUESTIONS TO THE PARTIES
1. Has the right to life of Mr Usman Gaysanov and the third applicant, ensured by Article 2 of the Convention, been violated in the present case?
2. Did the State comply with the positive obligation under Article 2 of the Convention to safeguard the right to life of Mr Usman Gaysanov and of the third applicant (see, for example, Paşa and Erkan Erol v. Turkey, no. 51358/99, § 38, 12 December 2006)?
3. Having regard to the procedural protection of the right to life (see Salman v. Turkey [GC], no. 21986/93, § 104, ECHR 2000-VII), was the investigation by the domestic authorities into the death of Mr Usman Gaysanov and the wounding of the third applicant in breach of Article 2 of the Convention?
4. Did the applicants have at their disposal an effective domestic remedy for their Convention complaints under Article 2 as required by Article 13 of the Convention?
5. The Government are requested to produce:
a) a list showing in chronological order all of the steps taken by the investigation in criminal case no. 14/90/0017-13 and copies of the relevant transcripts;
b) copies of all the contents of the investigation files and/or of the relevant preliminary inquiry file(s) opened against the police and/or the administration of the Achkhoy-Martan district in the Chechen Republic in connection with the death of Mr Usman Gaysanov and wounding of the third applicant.
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