Communicated on 6 September 2018
THIRD SECTION
Application no. 73006/17
Yakub KHASHAGULGOV and Lors KHASHAGULGOV
against Russia
lodged on 28 September 2017
STATEMENT OF FACTS
The applicants, Mr Yakub Khashagulgov and Mr Lors Khashagulgov, are Russian nationals, who were born in 1970 and 1993 respectively and live in Magas, Ingushetia. The first applicant is the brother and the second applicant is the son of Mr Sultan-Girey (in the documents submitted also spelt as Sultangirey) Khashagulgov.
The facts of the case, as submitted by the applicants, may be summarised as follows.
A. The circumstances of the case
1. Background information
At the material time, Mr Sultan-Girey Khashagulgov with the applicants and other relatives resided in Nazran, Ingushetia. According to the applicants, Sultan-Girey Khashagulgov was a local community activist in opposition to the local authorities.
In April 2011 Sultan-Girey Khashagulgov was wounded as a result of an explosion at the gate of his house. A criminal case was opened to investigate the matter, however, the perpetrators have not been established.
On an unspecified date in 2013 the Main Investigative Department of the Investigative Committee in the North Caucuses Federal Circuit (the investigators) opened criminal case no. 13540060 in connection with the alleged attempt of Sultan-Girey Khashagulgov on the life of a law-enforcement officer.
On 8 February 2013 the first applicant was detained by the police in Yandare, Ingushetia, and taken to the temporary detention centre (the IVS) at the Ministry of the Interior in Vladikavkaz, the capital of the neighbouring Republic North Ossetia-Alania. There he was tortured in order to make him give incriminating evidence against his brother Sultan-Girey Khashagulgov. It is unclear whether any charges had been brought against the first applicant and whether a warrant had been issued for his arrest.
2. Events of 13-15 February 2013
Early in the morning on 13 February 2013 a large group of law‑enforcement agents in armoured vehicles arrived at the applicants’ house and searched the premises. During the search, an explosion occurred, which partially destroyed the kitchen. Shortly thereafter, the officers took Sultan‑Girey Khashagulgov, who was at the time of the explosion in the house, outside. It unclear whether he was wounded during the explosion or by the officers who conducted the search. It is also unclear what degree of injuries he had sustained and whether any medical assistance had been provided to him on the spot or later on. Then the officers took Sultan-Girey Khashagulgov in their vehicle to the IVS in Vladikavkaz, where the first applicant was detained.
According to the first applicant, while in detention, between 13 and 15 February 2013 he heard his brother Sultan-Girey Khashagulgov being tortured and screaming from pain. It appears that on 15 February 2013 Sultan-Girey Khashagulgov died in detention. It is neither clear whether he was subjected to any medical examination prior to his placement in the IVS nor whether his death and its possible causes were registered in the detention centre’s logbooks and other registries.
On 15 February 2013, the body of Sultan-Girey Khashagulgov was released to the relatives for burial. It is unclear whether any post mortem examination of his body took place before or after that and if so, what were its conclusions concerning the injuries sustained and the cause of death.
Meanwhile, the first applicant was subjected to torture in detention to make him confess to illegal activities and those of his brother Sultan-Girey Khashagulgov. Given that the first applicant was still in detention, his relatives, out of fear for his life, decided to postpone lodging of an official complaint of Sultan-Girey Khashagulgov’s death in detention. It is unclear when the first applicant was released from detention and whether he had applied for medical assistance thereafter.
3. The applicants’ attempts to initiate a criminal investigation into the death of Sultan-Girey Khashagulgov and the first applicant’s ill‑treatment
On 28 September 2015 Sultan-Girey Khashagulgov’s wife, Ms M.T., requested that the investigators provided her with a copy of the post-mortem examination report of her husband’s body and the procedural decisions taken in criminal case no. 13540060 opened against him.
On 22 October 2015 the investigators informed her that by their procedural decision of 16 October 2015 her request was rejected, as she was not Sultan-Girey Khashagulgov’s wife officially. A copy of the relevant decision was not enclosed.
On 26 October 2015 the first applicant’s lawyer complained of the first applicant’s torture to the investigators. It appears that an inquiry was carried out into the complaint, but neither the applicant nor his lawyer were informed of its conclusions. According to the applicant, his lawyer lodged several subsequent requests for investigation into the ill-treatment, but no reply followed.
On 18 December 2015 Ms M.T. complained to the head of the Russian Investigative Committee of the unlawful search of 13 February 2013 and the explosion which, according to her, had been arranged by the law‑enforcement officers as a “cover-up”. She stated that the officers had taken her wounded husband Mr Khashagulgov away with them and then tortured him while in detention in Vladikavkaz, along with the first applicant who had been detained in the same facility. Ms M.T. also stated that the fear for the life of the first applicant had precluded her from officially complaining of the incident right away. She requested that a criminal case be opened into the death of Sultan-Girey Khashagulgov and she be granted victim status in the criminal proceedings. She also requested protection by for herself and her close relatives due to possible “unlawful actions of persons who had organised the killing of Sultan-Girey Khashagulgov”. No reply was given to this complaint.
On 27 July and then on 18 October 2016 Ms M.T. reiterated her above complaint to the authorities. No reply followed.
On 11 January 2017 the first applicant’s lawyer complained to the Essentuki Town Court in the Stavropol Region (the Town Court) of the authorities’ failure to investigate the circumstances of Sultan-Girey Khashagulgov’s death and the first applicant’s torture in detention and requested that the investigators’ failure to carry out an investigation into the allegations be found unlawful and steps be taken to have the crime resolved.
On 19 January 2017 the Town Court returned the complaint without examination for the applicant’s failure to comply with the procedural requirements. The decision stated that the complaint had not specified a number of mandatory points such as “what exactly was the failure of the investigating authorities”, “who had committed the alleged violations” and “which procedural rights had been violated and how they should be remedied.”
On 21 September 2017 the first applicant’s lawyer appealed the above decision to the Stavropol Regional Court (the Regional Court). He stressed, inter alia, that the Town Court “had not examined the arguments on their merits, had not examined the failures of the investigators listed in the complaint and substantiated by documentary evidence; [the court] found a formal basis for the refusal to examine the complaint”. Referring to Article 13 of the Convention he requested that the Town Court’s decision be overruled, and complaint be allowed.
On 29 March 2017 the Regional Court examined the appeal and upheld the decision of 19 January 2017.
4. Relevant criminal proceedings
On an unspecified date in March 2013, the applicants’ relatives complained to the Prosecutor General of unlawful search of their house on 13 February 2013 and the premeditated destruction of their property as a result of the explosion arranged by the law-enforcement officers.
On 7 June 2013 the investigators refused to open a criminal investigation into their allegations and on 10 June 2013 informed the applicants’ relatives thereof by a letter. A copy of the refusal decision was not enclosed.
On 17 September 2013 the lawyer of the applicants’ relatives requested that the investigators provide him with a copy of the refusal decision. No reply was given.
B. Relevant domestic law
For a summary of the relevant domestic regulations see Dalakov v. Russia, no. 35152/09, §§ 51-53, 16 February 2016 and Olisov and Others v. Russia, nos. 10825/09 and 2 others, §§ 81-82, 2 May 2017.
Article 144 of the Code of Criminal Procedure, as amended by Federal Law no. 23-FZ of 4 March 2013, reads in the relevant part as follows:
Article 144. Procedure for examining a report of a crime
“1. [A pre-investigation] inquiry officer, [an] agency [responsible for such an inquiry], [an] investigator, or [a] head of an investigation unit shall accept and examine every report of a crime ... and shall take a decision on that report ... no later than three days after [receiving] the report ... [They have] the right to receive explanations, samples for comparative examination, request documents and objects, seize them ..., order forensic examinations, participate in the carrying out [of such examinations] and receive an expert’s report within a reasonable time, carry out an inspection of a crime scene, documents, objects, [and/or] dead bodies, physical examination, request documentary inspections, revisions, examination of documents, objects, dead bodies, engage specialists in carrying out these actions, give an inquiry agency mandatory written instructions on carrying out operative and investigative measures ...
3. A head of an investigation unit or head of an [pre-investigation] inquiry agency ... may extend the time period specified in paragraph (1) of this Article to [a maximum of] ten days. Where the documentary inspections, revisions, forensic examinations, examination of documents, objects or dead bodies, as well as operative and investigative measures are to be performed, a head of an investigation unit ... or a prosecutor ... may extend this period [to a maximum of] thirty days ...”
Section VIII of the Code of Criminal Procedure, which regulates preliminary investigation, provides, inter alia, (after amendments by Federal Law no. 23-FZ of 4 March 2013) that such investigative measures as an inspection of a crime scene, documents and/or objects, a forensic examination and receipt of samples for a comparative examination may be ordered and/or carried out, as applicable, before a criminal case is opened (Articles 176 § 2, 195 § 4 and 202 § 1 of the Code).
COMPLAINTS
The applicants complain under Article 2 of the Convention that State agents used unjustified lethal force against their relative Mr Sultan-Girey Khashagulgov and that the domestic authorities failed to investigate the incident. Under Article 3 of the Convention, the applicants complain that State agents ill-treated the first applicant and that no proper investigation into the matter has been carried out. Under Article 13 of the Convention, the applicants complain that they had no effective domestic remedies against the violations alleged.
QUESTIONS TO THE PARTIES
1. Has the right to life of the applicants’ relative Mr Sultan-Girey Khashagulgov ensured by Article 2 of the Convention, been violated in the present cases? In particular, did his death result from a use of force which was absolutely necessary for the purposes of paragraph 2 (a) and/or (b) of this Article?
2. Given that Mr Sultan-Girey Khashagulgov was wounded on 13 February 2013, did the authorities comply with their positive obligation to protect his right to life as safeguarded by Article 2 of the Convention?
3. Having regard to the procedural protection of the right to life under Article 2 of the Convention (see Salman v. Turkey [GC], no. 21986/93, § 104, ECHR 2000 VII, and Dalakov v. Russia, no. 35152/09, § 78, 16 February 2016), have the national authorities conducted an effective investigation into the death of Mr Sultan-Girey Khashagulgov, sufficient to meet their obligations under this Convention provision?
4. Was the first applicant subjected to torture or inhuman or degrading treatment, in breach of Article 3 of the Convention? Was the investigation into the allegations of his ill-treatment in compliance with the requirements of the effective investigation under Article 3 of the Convention?
5. Did the applicants have at their disposal effective domestic remedies for their complaints under Articles 2 and 3 as required by Article 13 of the Convention?
6. The Government are invited to provide:
- a copy of the entire contents of the case files of the pre-investigation inquiries carried out into the circumstances of the death of Mr Sultan-Girey Khashagulgov;
- a copy of the entire contents of the case files of the pre-investigation inquiries carried out into the circumstances of the first applicant’s alleged ill-treatment;
- copy of the entire contents of the criminal case files opened in connection with the death of Mr Sultan-Girey Khashagulgov and the first applicant’s ill-treatment respectively;
- copy of all refusals to initiate a criminal investigation into the circumstances of the death of Mr Sultan-Girey Khashagulgov and the first applicant’s ill-treatment and/or the decisions to terminate criminal proceedings initiated in respect of those incidents and a copy of all domestic courts’ decisions taken on the appeals lodged against those procedural decisions.
The Government are also invited to include a list of steps in the chronological order reflecting actions taken by the authorities in each of the respective pre- investigation inquiries and/or the criminal cases.
Full & Egal Universal Law Academy