KHAYAURI AND OTHERS v. RUSSIA and 2 other applications

Communicated on 5 June 2018

THIRD SECTION

Applications nos. 33862/17, 78019/17 and 83409/17
Musa KHAYAURI and Others against Russia,
Murtazaali GASANGUSENOV against Russia and
Enver KARSAMAULIagainst Russia
lodged on 20 April 2017, 2 November 2017
and 1 December 2017 respectively

STATEMENT OF FACTS

The present applications were lodged by Russian nationals residing in Ingushetia and Dagestan respectively.

A. Application Khayauri v. Russia (no. 33862/17)

The applicants are:

(1) Mr Musa Khayauri, who was born in 1960,

(2) Ms Madash Khayauri, who was born in 1963,

(3) Ms Maryam Khayauri, who was born in 1985,

(4) Ms Rayana Khayauri, who was born in 1989.

The applicants reside in Ordzhenikidzevskaya, Ingushetia. The first and second applicants are the parents of Mr Magomed Khayauri, who was born in 1991; the third and fourth applicants are his sisters. The applicants are represented before the Court by lawyers of Materi Chechni, an NGO in Grozny.

The facts of the case, as submitted by the applicants, may be summarised as follows.

1. Killing of Mr Magomed Khayauri

At the material time, the applicants’ relative Magomed Khayauri studied at a university in Moscow. On 27 July 2012 he returned to Ingushetia for his summer holiday.

In the evening on 28 July 2012 Mr Khayauri was sitting on a bench with his friends Mr Artur Karsamauli and Mr I.T. on the premises of the Ingushetia State University awaiting the time to go to the mosque. Mr I.T. also studied in Moscow and Mr Karsamauli worked there. Both of them had also arrived to Ingushetia on holiday the day before.

At about 10 p.m. the FSB officers opened gunfire at the three young men and killed all of them. Mr Khayauri received numerous gunshot wounds to the head and the torso and died instantly. Mr Karsamauli and Mr I.T. were wounded and on the ground when the officers had finished them off by the shots into their heads.

Shortly after the shooting, the crime scene was examined and several pieces of firearms were found, including a pistol with number 5782 next to Mr I.T.’s right hand.

According to the applicants, the FSB officers had planted the firearms at the scene shortly after the shooting.

2. Criminal proceedings against Mr Magomed Khayauri

(a) Steps taken within the framework of criminal case no. 1200068

On 29 July 2012 the Sunzhenskiy district investigative committee (the investigators) opened criminal case no. 1200068 against Magomed Khayauri, Artur Karsamauli and Mr I.T. under Articles 222 (unlawful possession of firearms) and 317 of the Criminal Code (attempt on the life of a law-enforcement officer).

On 29 July 2012 the investigators examined the crime scene and collected several pieces of evidence, including the following: A Makarov pistol with number 5782 and silencer, six cartridges of calibre 7.62, another Makarov pistol without number, a pistol without number; a Kalashnikov machine gun with number 581217 and a cartridge of calibre 7.62 in it; a Kalashnikov machine gun with number 3247125; a Nokia mobile telephone, two bullets and a cartridge of calibre 5.45.

On the same date, 29 July 2012, the investigators ordered forensic examination of the bodies of the three men. According to its conclusions issued on 28 August 2012, the death of Magomed Khayauri occurred as a result of five gunshot wounds to the chest and the stomach.

On 1 August 2012 the investigators commissioned a molecule-genetic examination of the firearms collected to determine whose traces were left on them.

On 7 August 2012 the investigators refused to open a criminal case into the killing of Magomed Khayauri referring to the second applicant’s complaint of 6 August 2012 as lodged within the framework of criminal case no. 1200068. The decision stated that the applicant’s request for investigation was forwarded to the investigations unit no. 507 of military unit no. 68799 as the military investigators were to investigate crimes committed by servicemen (see below).

On 6 November 2012 the Forensic Bureau of the Main Department of the Investigative Committee in the North Caucasus Federal Circuit (the Bureau) concluded, amongst other things, the following:

“... biological traces on the Makarov pistol belong to an unidentified man and did not belong to Magomed Khayauri, Artur Karsamauli and Mr I.T.

The pistol with number 5782 and a pistol without number contain skin cells with mixed genetic profiles, according to which the genetic profile of Artur Karsamauli cannot be excluded, but those of Magomed Khayauri and Mr I.T. are excluded.

The silencer, the cartridges and the pistol without number bear mixed genetic profiles which exclude those of Magomed Khayauri, Artur Karsamauli and Mr I.T.”

On 1 November 2012 the applicants’ lawyer Mr M.T. requested that the investigators allowed him to access the investigation file in the criminal case as he represented relatives of Magomed Khayauri, Artur Karsamauli and Mr I.T. No reply was given to this request.

On 11 December 2012 the investigators of the Ingushetia FSB investigations department (the FSB investigators) questioned officer V.B. who stated that according to the operational information received, on 28 July 2012 a certain Mr M. Dzh. who had been wanted by the authorities and had been on the federal search list, had planned a meeting with other members of illegal armed groups. The meeting was to take place on the university premises. Prior to that the FSB had not had information on the involvement of Magomed Khayauri, Artur Karsamauli and Mr I.T. in illegal armed groups. The FSB group of officers under his command had arrived at the university premises in the evening on 28 July 2012 and waited in ambush. They had seen Magomed Khayauri, Artur Karsamauli and Mr I.T. arrive there shortly in light summer clothing and thereafter Mr M. Dzh. had approached them. He had carried a bag with something heavy in it. When the officers had tried to arrest them, the men had gotten firearms out of the bag and opened fire. Mr M. Dzh. had ran away. Given that the three young men had opened fire at the FSB officers, the latter had had to return it and therefore, there had been no chance to detain the young men.

On 11 December 2012 the FSB investigators questioned officer A.B. whose statement was similar to the one given by officer V.B. on 11 December 2012.

On 26 December 2012 the FSB investigators questioned students Ms L.Ts., Mr A-B. Ts., Mr M.A. and Mr I.A. all of whom stated that they had studied with Mr I.T. in Moscow, characterised him in positive terms and stated that to their knowledge he had been neither critical of the authorities nor adhered to radical views.

On 12 February 2013 the FSB investigators questioned Mr P.A., Ms K.V., Mr A.Zh., Ms G.E., Ms O.P., Ms S.G. all of whom stated that they had studied with Magomed Khayauri in Moscow or taught at the university. All of them characterised him in positive terms and stated that to their knowledge he had been neither critical of the authorities nor adhered to radical views.

On 18 February 2013 the applicants’ lawyer requested that the investigators ordered expert examination of the two Kalashnikov machineguns collected from the crime scene in order to determine whether any fingerprints had been left on them.

On 22 February 2013 the investigators rejected the request stating that none of the relatives of Magomed Khayauri, Artur Karsamauli and Mr I.T. had any procedural status in the criminal case and therefore had no right to make requests.

(b) Termination of the criminal proceedings and the appeals against it

(i) The first termination of the criminal proceedings

On 28 February 2013 the investigators decided to terminate the investigation in criminal case no. 12600068 for the death of the suspects.

On 6 May 2013 the applicants’ lawyer appealed the termination of the criminal case to the Sunzhenskiy District Court stating, amongst other things, that Magomed Khayauri, Artur Karsamauli and Mr I.T. had had nothing to do with illegal armed groups, that they had been fired at point blank and killed and that the crime scene had been subsequently staged by the servicemen of the Ingushetia FSB who had planted firearms. The consistent requests of the relatives of the three men to initiate a criminal investigation against the servicemen had been rejected and the decisions to refuse to open criminal case had been taken. He requested that the decision to terminate the criminal case be overruled as no evidence of commission of a crime by Magomed Khayauri, Artur Karsamauli and Mr I.T. had been obtained, and that the criminal case be examined on the merits in court.

On 20 May 2013 the Sunzhenskiy District Court rejected the above appeal as the decision to terminate the proceedings had been overruled on 16 May 2013.

(ii) The second termination of the criminal proceedings

On 16 June 2013 the investigators again decided to terminate the investigation in criminal case no. 12600068 for the death of the suspects.

On 29 October 2013 the applicants’ lawyer appealed in detail the termination of the criminal case to the Sunzhenskiy District Court stating that the investigators had failed to provide any new evidence of commission of a crime by Magomed Khayauri, Artur Karsamauli and Mr I.T. The failure of the investigators to take requested steps showed that they either had been incompetent or had been in agreement with the FSB officers to cover-up their unlawful actions. For instance, officer M.B. questioned by the investigators had not participated in the special operation and his statement had been based on the report filed by his commander officer V.B. None of the FSB officers questioned had stated that the loud-speakers had been used to warn Magomed Khayauri, Artur Karsamauli and Mr I.T. and offer them to surrender. The witness statements, the character references and the conclusions of the expert examination of the evidence, all those factors demonstrated that Magomed Khayauri, Artur Karsamauli and Mr I.T. had not been involved in commission of a crime. The lawyer pointed out numerous inconsistencies in the statements of the FSB officers concerning their actions during the incident and stressed that the investigators had failed to elucidate them. In particular, some of the FSB officers had not mentioned the alleged presence of Mr M.Dz. and the numerous witnesses had stated that shortly before the shooting they had seen Magomed Khayauri, Artur Karsamauli and Mr I.T. wearing t-shirts and flip-flops, the outfits which would not be suitable for commission of a crime with the use of firearms. None of the witnesses had seen the fourth person - Mr M. Dz. None of the witnesses, including the university night guards, had heard the alleged warning by loudspeaker and they had not seen any firearms next to the bodies of Magomed Khayauri, Artur Karsamauli and Mr I.T. Furthermore, the expert examination of the firearms collected at the crime scene showed that the three men could not have used them; the FSB officers had differed in their statements concerning the types of the firearms allegedly used by Magomed Khayauri, Artur Karsamauli and Mr I.T. The alleged participation of the fourth person, Mr M.Dz., had been invented by the FSB officer M.B. to justify the killing of the innocent young men. The investigators had taken that version at face value and failed to verify it. Moreover, they had not ordered expert examination of the FSB officers’ firearms and had failed to establish from which guns the three men had been killed and whether the traces on the firearms examined could have belonged to the FSB officers. Given the numerous inconsistences and contradictions in the evidence and the witness statements, the decision to terminate the criminal case was unlawful. The lawyer requested for the decision to be overruled and the persons from the FSB, the police and the investigative committee who had showed negligence during the investigation and forged evidence, be held responsible.

On 6 November 2013 the Sunzhenskiy District Court rejected the above appeal as unsubstantiated.

On 18 November 2013 the applicant’s lawyer appealed the decision of 6 November 2013 to the Ingushetia Supreme Court.

On 10 December 2013 the Ingushetia Supreme Court overruled the impugned decision and sent the case file for a fresh examination.

On 23 December 2013 Sunzhenskiy District Court rejected the above appeal as the decision to terminate the investigation in criminal case no. 12600068 had been overruled on 23 December 2013 and the proceedings had been resumed.

On 5 February 2014 the investigators requested that the investigation in criminal case no. 12600068 be transferred to another authority competent to investigate crimes committed by servicemen.

On an unspecified date in 2014 the investigation of the criminal case was transferred to the third military investigations department of the investigative committee of the Southern military circuit (see below).

3. The applicants’ attempts to initiate a criminal investigation

(a) The applicants’ requests for the opening of the criminal case

On 6 August 2012 the second applicant complained to a number of human rights organisations, including Amnesty International and Moscow Helsinki Group, stating that her son Magomed had been killed by law-enforcement officers on the university premises. She stressed that her son and his friends had neither been armed nor resisted arrest; they had been seating on the bench when they had been shot and killed. Referring to unnamed witnesses of the incident, the applicant stated that after killing the three young men, the law-enforcement officers had placed fire-arms at the crime scene; they had changed the bodies into the camouflage uniforms and then taken video and photo of the scene. Several dozens of witnesses could testify that Magomed Khayauri and his two friends had been dressed in t-shirts and flip-flops about 20-30 minutes before the killing. On the following day when she and the relatives of Artur Karsamauli and Mr I.T. had taken their bodies from the morgue for the funeral, they had found the gunshot wounds to the heads of Magomed’s friends. The applicant stressed that all three killed men had studied in Moscow and returned to Ingushetia for summer holiday shortly before the incident and therefore they could not have been involved in the activities of illegal armed group operating in the region. The applicant requested assistance in initiating the criminal investigation into the killing of her son and his friends.

On 6 August 2012 the second applicant complained of the killing by the officers of the Ingushetia FSB to the Sunzhenskiy district investigative committee and requested that a criminal case be opened into the incident and she be granted victim status in the criminal proceedings.

On 7 August 2012 the Sunzhenskiy district investigative committee replied to the second applicant that “decision to refuse to grant your request has been taken” (see above).

On 15 August 2012 the Chechnya Human Rights Envoy wrote to the Deputy Prosecutor General of Russia and the Head of the Investigative Committee in the North Caucasus Federal Circuit requesting that an investigation be initiated into the killing of three young men. The letter stated, amongst other things, the following:

“... on 29 July 2012 the website “Kavkazskiy Uzel” published an information statement “Three fighters killed at the university premises have been identified”. Referring to a representative of the law-enforcement agencies, it stated that on the night of 29 July 2012 during a shootout servicemen of special services in Ingushetia had killed three presumed illegal fighters who could have been involved in blowing-up stores and attempts of the lives of law-enforcement officials.

At the crime scene two Kalashnikov machineguns and two Makarov pistols were found, one of which had been equipped with silencer.

The same web-site on 7 August 2012 published an article “The relatives claim that men killed at the university premises did not resist”. From the text, it follows that the relatives of Magomed Khayauri, Artur Karsamauli and Mr I.T. stated that the young men had not offered armed resistance and had been shot dead without warning...

Eye-witnesses to the incident told the young men’s relatives that after the shooting the law-enforcement officers had changed the clothing on the bodies of the three men to camouflage uniforms, placed firearms next to them and took photographs and video of the scene.

On 29 July 2012 relatives of the killed men had been able to take their bodies for burial only after signing refusal to pursue any proceedings against law-enforcement agencies ...

Relatives of the killed men stated that Magomed Khayauri, Artur Karsamauli and Mr I.T. had not committed any crimes, had not been involved in illegal armed groups, they had not had either firearms or camouflage uniforms and they had not been wanted by the authorities. They had been wearing trousers, t-shirts and flip-flops and this could be confirmed by dozens of witnesses ... They had arrived in Ingushetia the day before the incident for their summer holiday...”

Between 6 and 27 August 2012 the applicants complained to various State authorities requesting that the killing of Magomed Khayauri and his two friends Artur Karsamauli and Mr I.T. be investigated as the three men had neither been armed nor offered resistance.

On 27 August 2012 the second applicant complained to the Sunzhenskiy district prosecutor that her repeated requests for opening of a criminal case into the killing had been refused despite the fact that the three men had not been armed and they had not offered resistance.

On 27 August 2012 the second applicant also wrote to the investigators of 507th military investigations department (the military investigators) requesting that they open a criminal case into the killing of her son and his friends, grant her victim status in the proceedings and allow her to access the criminal case file.

(b) The refusals to open a criminal case and the applicants’ appeals

(i) The first refusal to open a criminal case

On 19 September 2012 the military investigators refused to open a criminal case into the killing of Magomed Khayauri, Artur Karsamauli and Mr I.T. for the lack of corpus delicti in the actions of officer V.B. The decision also stated, amongst other things, the following:

“... Lieutenant Colonel V.B. from the Ingushetia FSB who had been questioned during the inquiry stated that in the beginning of July 2012 the FSB had received information concerning members of illegal armed groups operating in Ingushetia....

On 28 July 2012 he had been in charge of the operational group of the Ingushetia FSB which had been conducting search [for the suspects]. At about 10.10 p.m. on the premises of the university... citizens M. Khayauri, Artur Karsamauli and Mr I.T. had been found.

By the means of a loud speaker these men had been requested to give their firearms up and show their identity documents. In reply, Magomed Khayauri, Artur Karsamauli and Mr I.T. had opened fire at the servicemen of the Ingushetia FSB and tried to abscond. As a result, the servicemen had been ordered to return fire; as a result of the clash of brief duration these persons had received lethal wounds from which they had died on the spot ...”

From the text of the decision, it transpires that within the inquiry two other FSB officers, that is Major A.G. and Major A.B. who had been involved in the incident had also been questioned. Both gave statements similar to that of their commander Lieutenant Colonel V.B. The decision also stated that the three young men had died because of multiple gunshot wounds to the torso. The investigators also questioned the first applicant and the father of Artur Karsamauli; both of their statements were summarised as follows:

“... positively characterised his son and claimed that he had not been involved in illegal armed groups ...”

On 1 October 2012 the second applicant and the relatives of Artur Karsamauli and Mr I.T. complained to the head of the military investigators under Article 124 of the Criminal Procedure Code asking that the refusal to open the criminal case be overruled and a criminal case be opened and other witnesses of the incident be identified and questioned. They stressed, in particular, the following:

“... in the decision to refuse to open the criminal case the investigator stated that the [three] FSB officers had explained that when they had found the three young men, they had offered them to surrender through a loud-speaker and to give-up their firearms and show their identity documents. In reply, M. Khayauri, Artur Karsamauli and Mr I.T. had opened fire at the FSB officers and tried to abscond ...

Eye-witnesses state that M. Khayauri, A. Karsamauli and Mr I.T. had not been armed and they had not resisted. Moreover, according to the witnesses, nobody used a loud-speaker to offer them to surrender and show their documents. According to the night guard, the three young men had been seating on the bench in the university courtyard, they had not been armed and had not been in camouflage uniforms, when armed men in military vehicles and uniforms had arrived and opened gunfire at the young men without any warning ...”

On 3 October 2012 the head of the military investigators replied to the second applicant that on 26 September 2012 the refusal to open a criminal case had been overruled and the case file had been forwarded for an additional inquiry to the military investigators of military unit no. 68799.

On 18 October 2012 the second applicant reiterated the complaint to the military prosecutors of 1 October 2012 and requested in addition that four witnesses, Mr I.B., Mr M.Ts., Ms Z.A., Mr R.U. be questioned, providing their full names and addresses.

On 18 October 2012 the applicants’ lawyer Mr M.T. requested that the four witnesses be questioned and he be allowed to attend the questionings.

On 6 November 2012 the applicant’s lawyer complained to the head of the military investigators that none of the witnesses stated in the complaint of 18 October 2012 had been questioned and asked that the steps requested be taken.

On an unidentified date in November 2012 the military investigators questioned witness Mr I. B. who stated that he worked as a night guard at the university. On 28 July 2012 he had been on duty at work. At about 9.30 p.m. he had gone to the greenhouse situated on the university premises to have tea with his colleague Mr M. In about 10 min they had heard popping back sounds and ran out, but they had been immediately stopped by a law-enforcement officer in balaclava and uniform without insignia. He had pointed his gun at them and asked who they had been. They had explained that they had been the night guards, but without any explanations the officer had refused to let them go through. The witness and his colleague Mr M. had spent three hours next to the officer; meanwhile vehicles, including URAL lorries had arrived and left the university courtyard. At about midnight the witness and Mr M. had been allowed to approach the university building. In about 15 metres from the first part of the building they had seen bodies of three young men on the ground who had been in t‑shirts and other civilian clothing. There had been no firearms next to the bodies. The witness had not heard any loud-speakers and could not tell whether there had been an exchange of gunfire as all he had heard had been the strange popping back sounds.

On an unidentified date in November 2012 the military investigators questioned witness Ms Z.A. who stated that at about 9.40 p.m. on 28 July 2012 she had been walking home from work when she had met Magomed Khayauri in the street, about 200-300 metres from the university. He had been with two friends; he had told her that on 27 July 2012 he had arrived from Moscow for summer holiday. Magomed had been in t-shirt, jeans, flip‑flops and a cap, his friends had had similar outfits. None of them had been armed.

(ii) The second refusal to open a criminal case

On 26 October 2015 the investigators of the third military investigations department of the investigative committee of the Southern military circuit refused to open a criminal case against the FSB officers V.B., A.G and A.B. for the lack of corpus delicti in their actions.

On 26 April 2016 the above refusal was overruled by the military prosecutor’s office of the Southern military circuit and a new preliminary inquiry had been ordered.

On 12 May 2015 the applicants’ lawyer complained to the Grozny Military Garrison Court and requested that a criminal case be opened against the FSB officers involved into the killing of Magomed Khayauri, Artur Karsamauli and Mr I.T. and the officers be prosecuted. The outcome of this proceedings in unknown.

On 18 May 2016 the second applicant complained to the deputy head of the third military investigations department of the investigative committee of the Southern military circuit and requested that the decision of 26 October 2015 to refuse to open a criminal case against the FSB officers should be overruled as unlawful.

On 25 May 2016 the above complaint was rejected as the refusal of 26 October 2015 had been overruled on 26 April 2016 and a new preliminary inquiry ordered.

(iii) The third refusal to open a criminal case

On 20 October 2016 the third military investigations department again refused to open a criminal case against the FSB officers V.B., A.G and A.B. for the lack of corpus delicti in their actions.

To date no criminal case has been opened into the killing of Magomed Khayauri, Artur Karsamauli and Mr I.T.

B. Application Gasangusenov v. Russia (no. 78019/17)

The applicant is Mr Murtazaali Gasangusenov (in the documents submitted also spelt as Gusangusenov), who was born in 1970 and resides in the village of Goor-Khindakh, Dagestan. He is the father of Mr Gasangusen Gasangusenov, who was born in 1997, and Mr Nabi Gasangusenov, who was born in 1999.

The applicant is represented by lawyers of Memorial Human Rights Centre in Moscow.

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Discovery of the bodies of the applicant’s sons

At the material time the applicant, his wife Ms P.A. and his sons Gasangusen and Nabi Gasangusenov lived together in Goor-Khindakh. The applicant and his wife are disabled. The applicant’s sons worked as shepherds in Lagadib steading in about three to four km from the village. The local administration informed the local police of each shepherd working there.

At about 9.30 p.m. on 23 August 2016 Nabi Gasangusenov called the applicant’s wife and told her that he and his brother were returning home from the pasture. However, they did not come home.

Early in the morning on 24 August 2016, the applicant’s wife asked her relative Mr I.M. to go to the pasture and look for her sons. At about 6.20 a.m. on 24 August 2016 in less than one km from the village, in three-four metres from the road, in the bushes, Mr I.M. found the bodies of Gasangusen and Nabi Gasangusenov.

The bodies were next to each other; face down, in large black jackets with hoods pulled over the head. Automatic guns were on their backs with gun belts on the necks; army boots and backpacks were lying nearby. Both men were barefoot. Nabi Gasangusenov’s face was covered in dried blood and unrecognisable; Mr I.M. was able to identify Gasangusen by his face. Mr I.M. called his relatives and the police immediately.

At about 7 a.m. a group of policemen arrived at the scene and took away the bodies. Later the bodies were released to the applicant for burial but their forensic examination was not carried out.

According to the applicant, neither the black coats, nor the army boots and the backpacks found at the crime scene belonged to his sons.

2. Official information concerning the death of the applicant’s sons

The information statement issued in the early hours of 24 August 2016 by the acting head of the Shamil district department of the police Major I.A. contained the following information:

“... at about 9.25 p.m. during the special operation... unidentified persons made shots at the law-enforcement officers... as a result of the return fire the criminals were eliminated.”

3. The criminal case against the applicant’s sons

(a) Investigative steps taken in criminal case no. 63545

On 24 August 2016 the Khunzakh inter-district department of the Dagestan investigative committee (the investigators) opened criminal case no. 63545 against Gasangusen and Nabi Gasangusenov under Articles 317 and 222 of the Criminal Code (attempt on the life of a law-enforcement officer and unlawful turnover of firearms). The decision stated as follows:

“... at about 9.30 p.m. on 23 August 2016 when in the vicinity of Khorda-bak situated in about 2 km from the settlement of Khindakh in the Shamil district, a special operation to verify operative-search information was being carried out by representatives of the 5th unit of the Dagestan Federal Security Service (СОГ-5 УФСБ РФ по РД), the Dagestan Counterterrorism Centre (ЦПЭ МВД по РД) stationed in the settlement of Gergebil, the Russia Federal Security Service (ФСБ России) together with officers of the Shamil district department of the police (ОМВД России по Шамильскому району), two unidentified persons... from the firearms they had with them, opened lethal fire at the said representatives of the law-enforcement agencies.

By the gunfire returned by the law-enforcement officers those criminals were eliminated on the spot ...”

On 24 August 2016 the investigators examined the crime scene and collected a number of pieces of evidence, including Kalashnikov machine gun with number 3660388, an unidentified Kalashnikov machine gun, a number of cartridges and bullets as well as one tactical vest and two rucksacks. On the same date, 24 August 2016, the investigators ordered trace ballistic examination of the evidence.

At 4 p.m. on 24 August 2016 the bodies of the applicant’s sons were examined at the crime scene and then taken away. Subsequently, they were released to the applicant’s family for burial. No forensic examination of the bodies was carried out.

On 2 February 2017 the applicant’s two lawyers requested the investigators to grant them access the criminal case file and make copies of results of the forensic examinations and other documents allowed for by the law.

On 1 March 2017 the investigators rejected the lawyers’ request as G. Gasangusenov had not procedural status in the criminal case as “he was not a suspect and the criminal case was not opened against him”.

On 16 March 2017 the applicant’s lawyers appealed the refusal to the Sovetskiy District Court in Makhachkala (the District Court) under Article 125 of the Criminal Procedure Code (appeals of actions or inaction of the investigative authorities).

On 3 April 2017 the District Court allowed the complaint and ordered that the lawyers be allowed to join the proceedings in criminal case no. 63545 as lawyers of Gasangusen and Nabi Gasangusenov respectively.

On 10 April 2017 the applicant requested that the investigators grant him access the criminal case file and allowed to make copies of the decision to open the criminal case and of the reports with results of the forensic examinations. On 10 April 2017 the investigators allowed the request.

On 6 June 2017 the Dagestan Supreme Court partially granted the appeal lodged by the Dagestan investigative committee by stating that the lawyers’ complaint under Article 125 of the Criminal Procedure Code be allowed and the investigators’ inaction be re-qualified.

From the documents submitted it is unclear whether the investigators in the criminal case questioned any witnesses to the incident, including the law-enforcement officers who participated in the special operation.

(b) Forensic expert examinations of the evidence

On 18 September 2016 the forensic science department of the Dagestan investigative committee (the forensic bureau) issued its report concerning the trace ballistic examination of the evidence. Its conclusions stated, amongst other things, that the one of the two AK machine guns had been of foreign manufacturing. Twelve of the cartridges of calibre 7.62 had not been fired from the foreign-made AK machinegun; one cartridge of calibre 7.62 had been fired from that gun. Three bullets and 12 cartridges of calibre 7.62 had been sent for further check to the regional bullets database.

On 19 September 2016 the forensic bureau issued its second report concerning the trace ballistic examination of the evidence. Its conclusions, amongst other things, stated that the one of the bullets of calibre 5.45 as well as five cartridges had not been fired from the examined Russian manufactured AK machinegun no. 3660388 and four bullets and eight cartridges of calibre 5.45 had been sent for further check to the regional bullets database.

On 21 September 2016 the forensic bureau issued its report concerning the traces of blood on piece of collected evidence, including the applicant’s sons’ clothing, the tactical vest and two rucksacks. According to its conclusions, all of the items, except for the tactical vest, contained traces of blood which could have belonged to the applicants’ sons.

On 7 November 2016 the forensic bureau issued its expert report on the examination of Gasangusen Gasangusenov. The document stated that the expert evaluation had been ordered by the investigators on 30 August 2016 and that it was carried out without the actual body, on the basis of transcript of the body’s examination at the crime scene of 24 August 2016. According to the report, the death of Gasangusen Gasangusenov had occurred as a result of several gunshot wounds.

On 7 November 2016 the forensic bureau issued its expert report on the examination of Nabi Gasangusenov. The document also stated that the expert evaluation had been ordered by the investigators on 30 August 2016 and that it was carried out without the actual body, on the basis of transcript of the body’s examination at the crime scene of 24 August 2016. According to the report, the death of Nabi Gasangusenov had occurred as a result of several gunshot wounds.

On 18 November 2016 the forensic bureau issued its expert report on the examination of the jackets, undershirts and trousers of Gasangusen and Nabi Gasangusenov. The document stated, amongst other things, that the perforations on the clothing matched with the gunshot wounds on their corpses.

On 7 December 2016 the forensic bureau issued its expert report on the examination of the gunshot residue on the corpses of Gasangusen and Nabi Gasangusenov. Its conclusions stated, amongst other things, that swabs from their hands and faces contained traces of the residue whereas those from their hair and nails did not.

On various dates in January 2017 the forensic bureau, upon the investigators orders of 16 January 2017 issued its expert reports on the examination of seven of the Kalashnikov machineguns from the Dagestan Counterterrorism Centre from Gergebil. The reports concluded that it was impossible to establish whether those guns had been used to kill the applicant’s sons as the cartridges to be compared to, had been sent for further examination to the regional bullets database in September 2016 (see above).

On 5 April 2017 the forensic bureau, upon the investigators orders of 3 April 2017 issued its expert reports on the examination of two Kalashnikov machineguns from the Shamil district department of the police. The reports concluded that three cartridges of calibre 7.62 collected from the crime scene had not been fired from the examined machinegun.

On 14 April 2017 the forensic bureau issued its additional expert report on the examination of Gasangusen Gasangusenov. The document stated that the expert evaluation had been ordered by the investigators on 30 August 2016 and that it was carried out without the actual body, on the basis of transcript of the body’s examination at the crime scene of 10 April 2017. According to the report, the death had occurred because of fifteen gunshot wounds, including seven to the torso and eight to the extremities.

On 14 April 2017 the forensic bureau issued its additional expert report on the examination of Nabi Gasangusenov. The document stated that the expert evaluation had been ordered by the investigators on 30 August 2016 and that it was carried out without the actual body, on the basis of transcript of the body’s examination at the crime scene of 10 April 2017. According to the report, the death had occurred as a result of eighteen gunshot wounds, including twelve to the torso and six to the extremities.

On 20 April 2017 the forensic bureau issued its additional expert report on the examination of Gasangusen and Nabi Gasangusenov’s clothing collected from the crime scene. According to their conclusions, the blood found on the items of the clothing could have belonged to the applicant’s sons. No blood was found on the tactical vest.

4. The applicant’s attempts to initiate a criminal investigation into his sons’ killing

On 31 January 2017 the applicant complained to the head of the Dagestan investigative committee and requested that a criminal case be opened into his sons’ killing. He stated, in particular, the following:

“ ... At about 6 a.m. Mr I.M. found my sons killed. They were lying in about three metres from the road, next to each other... they were in winter jackets with hoods. Mr I.M. called the relatives in the village. Later from the village of Khebda (in Shamil district) fifteen policemen arrived with firearms and stretchers. He asked them: “Who did it?” They replied that they did not know. Then Mr M.G. , the uncle of the killed Gasangusen and Nabi Gasangusenov asked them: “Then how do you know where the bodies are? Why did you come exactly here? Why did you bring 2 stretchers and 2 covers?”

Then next to the place of the killing residents of the village started to gather and expressed their indignation and asked: “Who did it?” The policemen replied: “It was not us, it was the military”. We wanted to take the bodies, but the policemen prevented us from doing it by saying that it was necessary to wait for the experts. Then three men in civilian clothing arrived. They took photographs, collected cartridges. It turned out that the fire had been opened at the brothers from three different points. The cartridges were there. The policemen told us that the bodies had to be taken to the district centre, then to Makhachkala for expert evaluation and promised to return them to us after that. We helped the policemen to load the bodies into the police minivan. They drove to the district centre and parked the car at the garage. After sometime women- relatives of the killed started gathering there and demanded that the bodies be released to them. Their requests were refused. After that the women went to the garage, took the bodies and passed them on to the men.

... the head of the police said that it was necessary to wait for the experts. Then the expert with two men in civilian clothing arrived; one of them was the surgeon from the district centre Mr U.M. In the presence of the uncle, Mr M.G., removed the jackets from the bodies, examined the wounds, took fingerprints and inspected the jackets. One of the jackets had only two holes, the other had more. The experts said that they [my sons] had been killed and then jackets had been put on them and then they had been shot at again. The holes on the jackets did not match the bullet wounds on the bodies ... After that the bodies were given to us and we buried them on the same day.

With full confidence, I state that my sons were neither members of illegal armed groups, nor criminals or extremists. ... It is obvious, in my opinion, that they were killed by certain agents of law enforcement bodies for unknown reasons. The perpetrators should be prosecuted and held responsible in accordance with the law ...”

No reply was given to the applicant’s request.

On an unspecified date in March 2017 the applicant complained to the District Court stating that his request for opening of a criminal case into his sons’ killing had been ignored by the investigative authorities.

On 23 March 2017 the District Court allowed the applicant’s complaint. The decision stated, amongst other things, the following:

“... thus, the court found that Mr G. Gasangusenov’s request of 31 January 2017 concerning commission of the crime had not been examined on the merits by the Dagestan investigative committee within the prescribed time-limits ... and the applicant had not been informed of the decision taken...

The court finds that G. Gasangusenov’s complaint be allowed. The inaction of the Dagestan investigative committee in failing to inform G. Gasangusenov about the results and the decision on his request to open a criminal case of 31 January 2017 concerning his sons’ killing [is established].

The head of the Dagestan investigative committee should remedy the violations ...”

On an unspecified date in March or April 2017 the applicant again complained to the Dagestan investigative committee and reiterated his request concerning opening of a criminal case into his sons’ killing. He referred to the court’s decision of 23 March 2017 and stated that the court’s orders were not complied with. No reply was given to this request.

On 2 May 2017 the Dagestan Supreme Court rejected the appeal lodged by the Dagestan investigative committee and upheld the decision of 23 March 2017.

On 27 June 2017 the Dagestan Supreme Court rejected cassation appeal lodged by the Dagestan investigative committee and upheld the decisions of 23 March 2017 and 2 May 2017.

To date no criminal case has been opened into the killing of Gasangusen and Nabi Gasangusenov.

C. Application Karsamauli v. Russia (no. 83409/17)

The applicant is Mr Enver Karsamauli, who was born in 1952, and resides in Ordzhenikidzevskaya, Ingushetia. He is the father of Mr Artur Karsamauli, who was born in 1986. He is represented before the Court by lawyers of Materi Chechni, an NGO in Grozny.

The facts of the case, as submitted by the applicant, concern the same events as those described above in the application Khayauri v Russia (no. 33862/17). The applicants in both cases had the same legal representative on the domestic level and made similar attempts to initiate criminal proceedings into their relatives’ killings (see above).

D. Relevant domestic law

For a summary of the relevant domestic regulations see Dalakov v. Russia, no. 35152/09, §§ 51-53, 16 February 2016.

COMPLAINTS

The applicants in each application complain under Article 2 of the Convention that their relatives were killed by State agents and that the authorities failed to effectively investigate the matter. Under Article 13 they allege that they had no effective domestic remedies against the violations alleged.

QUESTIONS TO THE PARTIES

1. Has the right to life of the applicants’ relatives Mr Magomed Khayauri, Mr Artur Karsamauli and Mr Gasangusen Gasangusenov and Mr Nabi Gasangusenov ensured by Article 2 of the Convention, been violated in the present cases? In particular, did the death of the applicants’ relatives result from a use of force which was absolutely necessary?

2. Having regard to the procedural protection of the right to life (see Salman v. Turkey [GC], no. 21986/93, § 104, ECHR 2000-VII), have the domestic authorities complied with the obligation to carry out an effective investigation into the death of the applicants’ relatives as required by Article 2 of the Convention?

3. Did the applicants have at their disposal effective domestic remedies for their complaints under Article 2 as required by Article 13 of the Convention?

4. 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 the applicants’ relatives;

- copy of the entire contents of the criminal case files opened in connection with those events;

- copy of all refusals to initiate a criminal investigation into the circumstances of the killing and/or the decisions to terminate criminal proceedings initiated against the applicants’ killed relatives and copy of all domestic courts’ decisions taken on the appeals lodged against those 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 criminal proceedings.

Full & Egal Universal Law Academy