Published on 26 July 2021
THIRD SECTION
Application no. 28596/18
Khambi Khazizovich KUASHEV and Larisa Khutayevna BAKUYEVA
against Russia
lodged on 7 June 2018
communicated on 6 July 2021
STATEMENT OF FACTS
1. The applicants, Mr Khambi Khazizovich Kuashev and Ms Larisa Khutayevna Bakuyeva, are Russian nationals, who were born in 1947 and 1962 respectively and live in Nalchik, the Republic of Kabardino-Balkaria. They are represented before the Court by lawyers of Memorial Human Rights Centre and the European Human Rights Advocacy Centre (EHRAC), non-governmental organisations with offices in Moscow and London.
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. Mr T.K., born in 1987, died as a result of the events described below. He was a regional human rights activist, journalist and a member of the opposition political party “Yabloko”.Events preceding Mr T.K.’s death
4. On 3 May 2013 Mr T.K. organised a rally against police misconduct in Nalchik.
5. On 17 May 2013 he published an article on the Internet critical of local police officers.
6. On 21 May 2013 he was arrested during another rally and released on the same day without any charges being brought against him. Allegedly, police officers threatened him during the detention in connection with his public activities.
7. On 27 May 2013 Mr T.K. complained to the authorities about anonymous death threats he had received in a blog post on the Internet. The threats referred to his public activities.
8. On 15 July 2013 the head of the local police department requested the Bureau of Special Technical Activities of the Ministry of the Interior to identify the author of the blog post.
9. On 7 August 2013 the Bureau considered it impossible to identify the author since the servers of the respective website were situated in the U.S.A. Referring to that finding, on 28 August 2013 the authorities refused to initiate criminal proceedings for the absence of corpus delicti.
10. On 11 August 2013 Mr T.K. found a box with protruding wires next to his apartment door. Having perceived it as a threat, he allegedly complained to the police, which remained inactive. Apparently, in the course of the investigation described below the police examined the box and found an inscription: “A gift for [Mr T.K.] two bullets from uncle Vanya” («Подарок [T.K.] две пули от дяди Вани»).
11. Since, at least, 13 July 2014 Mr T.K. had been communicating with one Ms A.D. who was seeking help from him. Apparently, Mr T.K. suspected her of working for security services. Later, after Mr T.K. had expressed his suspicions, Ms A.D. threatened to complain to the authorities against him.Death of Mr T.K. and the investigation into itThe events of 31 July and 1 August 2014
12. On 31 July 2014 Mr T.K. agreed to meet with the second applicant at 7.00 p.m. but never showed up.
13. On the following day at 10.20 a.m. Mr T.K.’s body was found around 1.3 km away from his home. A medical expert certified Mr T.K.’s death and noted a bruise on the left eyelid and a “puncture wound” in the left armpit. The police examined the crime scene and drew up a report.
14. On the same day a post-mortem examination, carried out between 3.30 p.m. and 5.00 p.m., noted the same injuries and preliminary established that Mr T.K. had died of poisoning by unidentified substance. The expert noted that the exact cause of death could not be determined until further medical investigations had been carried out.First round of criminal investigation
15. On 2 August 2014 an additional on-site inspection found no needles, syringes or other items with a sharp point.
16. On 4 August 2014 criminal proceedings were instituted on suspicion of Mr T.K.’s murder. The investigator formally chose poisoning as the theory to pursue.
17. On 5 August 2014 the applicants were granted formal victim status. The investigator questioned them on 4 and 5 August 2014 respectively.
18. On 13 August 2014 the investigator requested surveillance footage from the cameras near the crime scene. On 18 August 2014 the state company operating the surveillance system reported that no footage during the relevant period had been taken due to a technical issue.
19. On 22 August 2014 the investigator questioned Ms A.D. The latter submitted that she had stopped contacting Mr T.K. some time before his death. Allegedly, two officers of the Federal Security Service accompanied her during the questioning.
20. On 25 August 2014 the investigator established that Ms A.D. as well as other unidentified persons had called Mr T.K. on the night of his death.
21. On 28 August 2014 the Investigative Committee of the Republic of Kabardino-Balkaria requested a number of other law enforcement authorities in other regions to inform of similar murders committed in those regions. The latter subsequently either did not respond or reported of the absence of such cases, save for one.
22. On 14 October 2014 the expert finalised the post-mortem report (see paragraph 14 above). It found that Mr T.K. had died of an acute coronary insufficiency resulted from pathologies of the cardio-vascular system and an unidentified viral infection. The death had taken place between twelve and twenty-four hours before the body was initially examined. It also established that Mr T.K. had sustained the puncture wound between six and twelve hours before his death.
23. On 23 October 2014 the first applicant requested the authorities to question Ms A.D. again and to identify others who had called Mr T.K. on the night of his death. He further disagreed with the final post-mortem report and requested another one. On 29 October 2014 the request was dismissed as the investigator had already planned to take the requested measures.
24. On 28 October 2014 the investigator examined the contents of Mr. T.K.’s laptop.
25. On 26 November 2014 a Deputy Prosecutor of Nalchik annulled the decision refusing the institution of criminal proceedings on account of the threats against Mr T.K. (see paragraph 9 above). He also ordered to join the materials of the respective pre-investigation inquiry with the case file of the investigation into the murder.
26. On 16 March 2015 another post-mortem examination confirmed the previous findings as to the cause of Mr T.K.’s death (see paragraph 22 above). The examination found no signs of poisoning.
27. On 2 June 2015 an expert examination found no traces of narcotic, psychotropic, potent or poisonous substances on a piece of Mr T.K.’s T‑shirt cut from the left armpit zone. On 27 July 2015 another expert examination found traces of a substance called “bivalent iron” on a piece of Mr T.K.’s T‑shirt. It is not clear if those were two different pieces.
28. On 25 May 2015 an expert examination found no biological traces of human origin on Mr T.K.’s clothes, but his own blood.
29. On 27 June 2015 the investigator examined the contents of messages between Mr T.K. and Ms A.D.
30. On the same day the investigator again questioned Ms A.D. She denied her involvement into events and claimed having stopped contacting Mr T.K. two weeks before his death.
31. On 11 July 2015 the first applicant lodged another request similar to the one dated 23 October 2014 (see paragraph 23 above). He additionally alleged that the police officers who had threatened Ms A.D. could have been involved in the murder. He also requested another expert examination with a view to establishing possible unusual poisons in Mr T.K.’s body. On 14 July 2015 the request was dismissed as the investigative authorities had already planned to take the requested measures.
32. On 21 July 2015 the applicant complained about ineffectiveness of the investigation to the Investigative Committee of the Republic of Kabardino-Balkaria. He alleged, in particular, that the investigation disregarded the theory of the officers’ involvement into the events and that he had not been duly informed of the course of the investigation. On 25 July 2015 the complaint was dismissed.
33. On 4 August 2015 the investigation was suspended for the failure to identify perpetrators.Second round of criminal investigation
34. On 13 August 2015 the first applicant complained to the Head of the Investigative Committee of Kabardino-Balkaria that his above requests had remained unanswered. The investigator dismissed the complaint but later sent copies of some decisions regarding the requests.
35. On 17 September 2015 the investigation was resumed.
36. On 11 November 2015 an expert examination again found traces of “bivalent iron” on the piece of cloth already examined on 27 July 2015 (see paragraph 27 above). Later experts submitted that the “bivalent iron” traces could have resulted from contacts with blood or metal objects.
37. On 23 December 2015 a post-mortem phycological-psychiatric examination found no factors that could have predisposed Mr T.K. to suicidal behaviour.
38. On 5 and 23 November 2015 the first applicant again complained of the authorities’ failure to provide him with all copies of decisions regarding his requests. He was then shortly provided with those copies.
39. On 30 December 2015 the first applicant complained before the Nalchik Town Court that the investigation had failed to take the measures he had requested. On 21 January 2016 the court found that the choice of the investigation strategy lied within the exclusive competence of the investigator and dismissed the complaint.
40. On 22 March 2016 the Supreme Court of the Republic of Kabardino‑Balkaria upheld the decision.
41. On 17 April 2016 the investigation was terminated since no crime had been committed. On the same day and for the same reason the investigator refused to institute criminal proceedings on account of the threats against Mr T.K.Subsequent events in the case
42. On 29 September 2016 the Head of the Investigative Committee of Kabardino-Balkaria annulled the decision to terminate the investigation having found it premature.
43. On 24 October 2016 the investigation was again terminated as allegedly no crime had been committed.
44. On 23 January 2017 the first applicant complained before the Nalchik Town Court about the decisions to terminate the investigation and to refuse to institute criminal proceedings on account of the threats. On 6 February 2017, the court found that the investigation had failed to duly investigate the theories he had raised. The court further established that the investigation had failed to have recourse to the mechanisms of international cooperation regarding the inquiry into the threats. Accordingly, on 2 March 2017 both decisions terminating the proceeding were annulled.
45. On 6 April 2017 the investigator again terminated the investigation and the inquiry into the threats.
46. On 17 May 2017 the first applicant again complained before the Nalchik Town Court about the decisions. On 2 June 2017 the court granted the complaint as the investigation had failed to rectify the deficiencies established in the previous judgment.
47. Since 14 June 2017 both the investigation into the murder and the inquiry into the threats have been repeatedly resumed and terminated for at least three times.
48. On 19 March 2018 the applicants complained to the Head of the Investigative Committee of Kabardino-Balkaria that they had not been provided with any information regarding the investigation since 20 September 2017. On 22 March 2018 the authorities provided the applicants with copies of relevant decisions.
49. On 6 May 2018 a forensic expert report ordered by the applicants found numerous deficiencies in the above post-mortem expert examinations. In particular, it considered the toxicology investigation incomplete as it had omitted screening of Mr T.K.’s blood and had not properly studied the possibility of poisoning by some uncommon substance. It also noted that the origin of the puncture wound was not determined. Lastly, the version of the acute coronary insufficiency allegedly was largely unsubstantiated.
COMPLAINTS
1. The applicants complain under Article 2 of the Convention that the authorities had failed to protect the life of their son and to conduct an effective investigation into his death.
2. The applicants further invoke Article 13 of the Convention arguing that they had no effective remedies in respect of their complaints under Article 2 of the Convention.
QUESTIONS TO THE PARTIES
1. Did the investigation in respect of the applicants’ son’s death comply with the requirements under Article 2 of the Convention? Was it conducted promptly and free of deficiencies capable of undermining the authorities’ ability to establish the cause of the victim’s death and to identify the perpetrator or perpetrators, if any (see, among other authorities, Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, §§ 169-82, 14 April 2015, and Mazepa and Others v. Russia, no. 15086/07, §§ 74-82, 17 July 2018)?
In particular, the parties are invited to answer the following questions:
(a) Did the investigation sufficiently establish the cause of Mr T.K.’s death? In particular, were the following measures taken, in that connection:
- search for uncommon poisonous substances in Mr T.K.’s body;
- conducting a blood test of Mr T.K.;
- establishing the cause of the “puncture wound” in Mr T.K.’s armpit.
(b) Did the authorities properly investigate the state agents’ possible implication into Mr T.K.’s death?
(c) Did the applicants have sufficient access to the investigation? Were they properly informed of its developments?
2. Did the authorities comply with their positive obligation to protect the right to life of Mr T.K. as safeguarded by Article 2 of the Convention (see, among other authorities, Osman v. the United Kingdom, 28 October 1998, § 116, Reports of Judgments and Decisions 1998 VIII, and Kurt v. Austria [GC], no. 62903/15, § 157-60, 15 June 2021)? In particular, were the authorities sufficiently aware that his life was in danger? If so, was their alleged inaction in that respect compatible with the requirements of the provision?
3. 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?
4. The Government are requested to inform the Court of the current state of criminal proceedings and to produce a copy of the entire investigation file.
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