Communicated on 3 June 2019
THIRD SECTION
Application no. 33505/11
Vyacheslav Lvovich NIKOLAYEV
against Russia
lodged on 30 March 2011
STATEMENT OF FACTS
The applicant, Mr Vyacheslav Lvovich Nikolayev, is a Russian national, who was born in 1973 and lives in Isilkul.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Incident of 2 June 2009
At night from 2 to 3 June 2009 the applicant, along with his friend Mr V., drove in his car from village Kudryaevka to the town of Isilkul. The applicant did not take a regular road, but rather drove across a field. At around three kilometres north of the road from Isilkul to Poltavka, they were attacked by border guards, who at once fired at them. Mr V. quickly jumped out of the car, whilst the applicant was hit and seriously injured in his spine and intestines. The applicant lost control of the lower part of his body and the car stopped. The border guards dragged him out and searched him and his car. The applicant was taken to the hospital where he received medical assistance. He has lost control of the lower part of his body and remained wheelchair bound.
2. Subsequent investigations
Following this incident administrative proceedings were brought against the applicant on suspicion of illegal crossing of the Russian-Kazakh border and smuggling and also criminal proceedings were brought against the shooting officer on suspicion of abuse of power.
(a) Proceedings against officer P.
After multiple refusals to institute criminal proceedings into the events on 14 April 2010 an investigator of the military investigative unit of the Omsk Garrison started criminal investigation. The investigation was terminated by a decision of 14 August 2010 for the lack of evidence of a crime. The decision made the following findings:
- the applicant, along with Mr V. and an unidentified person who had driven another car during the incident, participated in a smuggling operation;
- the encounter with border guards took place after they crossed the border from the Kazakh side, a pursuit ensued which lasted for around half an hour and resulted in the shooting of the applicant’s car preceded by a few warning shots in the air;
- the applicant’s car was shot at with an automatic rifle AK-47, officer P. having used 30 cartridges;
- the bullet holes were scattered all around the applicant’s car;
- border guards could not stop the applicant and officer P. took a lawful decision to use his rifle.
The decision concluded that the use of force was lawful and terminated criminal proceedings accordingly. The decision did not make any assessment of proportionality of the use of force.
This decision was upheld by the courts at two instances on 25 October and 17 December 2010. The courts did not examine the applicant’s proportionality arguments either.
(b) Proceedings against the applicant
By decision of 29 April 2010 inspector Pa. of the Omsk Town customs service examined the events of that night and refused to institute administrative proceedings in this connection. The inspector noted that there was no objective data confirming that the applicant and Mr V. had indeed crossed the border, that the events took place nine kilometres away from the border, the search of the car did not show the presence of any smuggled goods.
This decision was not appealed against and entered into force ten days later.
B. Relevant domestic law
Section 35 of Federal Law no. 4730-1 dated 1 April 1993 “On State Border” gives the border guards the right to use weapons when policing the border. Any use of weapons should be preceded by warnings or warning shots.
By virtue of Section 8 of Federal Law no. 40-FZ dated 3 April 1995 “On Federal Security Service (the FSB)” the task of policing the border is given to the Federal Security Service.
Section 14 of that Law gives the officials of the FSB the right to use weapons.
Order no. 252 of the Ministry of Security of the Russian Federation dated 31 August 1992 (as in force at the relevant time) provides that servicemen should strive to minimise the damage when using weapons. It also provides that servicemen are not liable for the damage incurred as a result of the use of weapons if it was proportionate to the force of the resistance.
COMPLAINTS
The applicant complains under Articles 2, 13 and 17 of the Convention that the use of lethal force against him had been disproportionate, excessive and unlawful and that the domestic authorities failed properly to investigate the incident.
QUESTIONS TO THE PARTIES
1. Were the requirements of the substantive aspect of Article 2 of the Convention respected in so far as the events of 2-3 June 2009 are concerned? The parties are requested to address the following points:
(a) Was the use of lethal force justified with reference to any of the aims listed in that Convention provision?
(b) Was the use of lethal force during the pursuit absolutely necessary within the meaning of that Convention provision?
(c) What was the legal framework regarding the use of lethal weapons during border operations and pursuits and what specific training did the officers involved in the operation have prior to the operation? Was the legal framework and training provided compatible with the requirements of Article 2?
(d) Were there any other alternative means available to the authorities to stop the applicant’s car?
2. Were the requirements of the procedural aspect of Article 2 of the Convention and Article 13 respected in so far as the investigation of the events of 2-3 June 2009 is concerned? In particular, was the investigative full, objective and effective, as required by that Convention provision. The reference is being made, in particular, to the applicant’s allegation that the investigation and the courts did not examine the issue of proportionality of the use of force at all.
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