Communicated on 10 December 2014
FIRST SECTION
Application no. 65774/11
Lyudmila Vladimirovna SAVEYKINA and Viktor Konstantinovich SAVEYKIN against Russia
lodged on 12 October 2011
STATEMENT OF FACTS
The applicants, Mr Lyudmila Vladimirovna Saveykina and Mr Viktor Konstantinovich Saveykin, are Russian nationals, who were born in 1951 and 1948 respectively and live in the town of Oktyabrskiy in the Bashkortostan Republic. They are represented before the Court by Mr I. Kalyapin and Mr A. Ryzhov, lawyers of the NGO “Committee Against Torture” based in Nizhniy Novgorod.
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants are the parents of Mr Anton Saveykin, who was born in 1987 and died in 2008, and of Mr Pavel Saveykin.
A. Death of Mr Anton Saveykin
At about 11 p.m. on 11 September 2008 the Saveykin brothers arrived at a parking lot of the Matritsa shopping mall where they had agreed to meet their acquaintances, Mr A.P. and Mr V.E. Anton was riding a VAZ-2108 car.
At some point in the course of the meeting a few cars arrived at the parking lot. Masked men got off the cars and started shooting in the air. Pavel Saveykin jumped in his car and drove some 200 metres away from the lot. Anton got in his car together with Mr V.E. and drove off. Later Pavel reached V.E. by phone, it turned out that Anton had been shot. Pavel took Anton to hospital by taxi. In the meantime he was told that his brother had been shot by officers of the Oktyabrskiy Town Department of the Federal Drug Control Service (“DCS”).
At 2.30 a.m. on 12 September 2008 Anton died in the hospital.
B. Investigation into Anton Saveykin’s killing
1. Pre-investigation inquiry
On 12 September 2008 the police of the town of Oktyabrskiy was notified by the hospital that Mr Anton Saveykin had been admitted to the hospital with gunshot wounds to his abdomen and died.
On an unspecified date Anton Saveykin’s body was subjected to post‑mortem examination, which established that there were two round wounds of 1-1.5 cm in diameter in his right shoulder and scapula. The forensics extracted a bullet from Anton’s chest and issued a certificate marking gunshot blind wounds damaging the lungs and heart as the cause of death.
On 13 September 2008 the police transmitted the notification to the Oktyabrskiy inter-district investigative unit of the Investigative Department of the Investigative Committee of the Prosecutor’s Office of Russia in Bashkortostan (“the district investigative authority”), which in their turn launched a pre-investigation inquiry.
In the course of the pre-investigation inquiry it transpired that prior to 11 September 2008 the DCS planned to arrest Mr A.P. suspected of dealing in heroin. On 11 September 2008 the DCS decided to assign seven officers to a special operation aimed at arresting Mr A.P., including Mr T., Mr Ya., Mr S. and Mr M.
On 12 September 2008 the DCS instituted a criminal investigation against Mr A.P. in case no. 8708095 and arrested him. The decision read, in so far as relevant, as follows:
“Mr A.P., a heroin user, having acted of his own free will aimed at purchasing and storing with no intention of selling a particularly important amount of drugs, during the time period prior to 11.20 p.m. on 11 September 2008 purchased 8.311 g of heroin and then illegally stored it on him in a small bundle made of aluminium foil and plastic wrapping.”
The district investigative authority questioned Mr T., deputy head of the DCS and other DCS officers, including, among others, Mr Ya., Mr S. and Mr M. It follows from the officers’ statements that on 11 September 2008 they had been preparing to arrest Mr A.P. and had been following his car when they had arrived at the parking lot of the Matritsa shopping mall. The officers had been wearing jackets bearing a visible “Police Special Unit” signature. There had been ten to fifteen strong young men standing at the parking lot who had looked menacing as some of them had been holding baseball bats. Mr T. got out of his car holding his police ID in the raised hand and shouted “Police!”. Then he had fired in the air a few times. The VAZ-2108 car had started driving away, Mr T. had seen that its driver had been holding a pistol and shouted “Gun!”. Mr T. had fired three or four shots at the car and then had been hit by it. Mr M., Mr S. and Mr Ya. had seen Mr T. being hit by the car and had fired a few shots in the direction of VAZ-2108. They had opened fire because the car had represented a clear and immediate danger to the officers and civilians.
The district investigative authority also questioned Pavel Saveykin, Mr A.P. and Mr V.E. They stated that at some point around fifteen men had arrived at the parking lot, three of them had been wearing masks, and had opened fire. They had not known that those men had belonged to the police and had not heard any warnings.
The investigative authorities examined the VAZ-2108 car and found in it a pneumatic pistol under a passenger’s seat.
On 22 September 2008 the investigative authority refused to initiate a criminal investigation into the killing of Anton Saveykin for the lack of the event of the crime. They reasoned that the DCS officers had used lethal weapons while performing their law-enforcement duty in order to protect themselves from the violent young men with baseball bats and the driver of VAZ-2108 who had armed with the pneumatic pistol.
On 8 October 2008 the head of the district investigative authority quashed the decision of 22 September 2008 on the request by the prosecutor of the town of Oktyabrskiy owing to incompleteness of the pre-investigation inquiry and indicated the following measures to be taken: to demand Mr Anton Saveykin’s post-mortem report, to examine Mr T.’s traumas, to question Mr Pavel Saveykin and another witness, Mr A., and to obtain a ballistics expert report.
On 24 October 2008 the district investigative authority again refused to initiate a criminal case in relation to Anton Saveykin’s killing. The decision of eleven pages reproduced verbatim the text of the decision of 22 September 2008 except of one paragraph that was omitted in the second refusal decision. No additional investigative measures were mentioned.
On 29 October 2008 the head of the district investigative authority quashed the decision of 24 October 2008 for the same reasons listed in the decision of 8 October 2008 and indicated that it was necessary to examine Mr T.’s traumas, to question Mr A. and to obtain the ballistics expert report.
On 20 November 2008 the district investigative authority once again refused to institute a criminal investigation into the killing of Anton Saveykin. The first nine pages of the decision reproduced verbatim the texts of the decisions of 22 September and 24 October 2008. Further the district investigative authority listed additional investigative steps taken, such as post-mortem examination of Anton Saveykin’s body, medical examination of Mr T., questioning of the first applicant and additional questioning of Mr T., Mr S. and Mr Ya. The conclusions reached by the investigative authority were identical to those appearing in the first two decisions on refusal to initiate a criminal investigation. It does not transpire from the case materials available to the Court that the decision was later quashed or otherwise annulled.
2. Investigation in case no. 8913058
On 2 December 2008 the district investigative authority decided to institute a criminal investigation into Anton Saveykin’s killing under Article 109 § 2 of the Russian Criminal Code (involuntary manslaughter caused by carrying out one’s duties improperly).
On 10 December 2008 the first applicant was granted victim status in case no. 8913058.
On 27 December 2008 a forensic expert examined the pistol seized from Anton Saveykin’s car. He established that it was a pneumatic pistol firing steel balls and that it had not been fired from with the use of gun powder after the last time it had been cleaned inside. Moreover, he noted that there were no fingerprints on the pneumatic pistol.
On the same date the forensic expert examined the duty pistols of Mr T., Mr Ya., Mr S. and Mr M. The ballistics tests showed that the bullets extracted from Anton Saveykin’s body had been fired from Mr Ya.’s pistol.
On 16 January 2009 Mr L., the head of the DCS, was questioned as a witness. He stated that the operation on Mr A.P.’s arrest had been planned in advance and that the officers involved had received instructions on how to proceed, however, he did not provide any details.
On 16 February 2009 the investigation file in case no. 8913058 was transferred from the district investigative authority to the special unit of the investigative department of the Investigative Committee of the Prosecutor’s Office of Russia of Bashkortostan (“the regional investigative authority”).
On 18 February 2009 Mr T. was questioned as a witness. He added to his earlier statement that he had been shown a dated photograph of Mr A.P. He also stated that, as far as he knew, Mr L. had decided to effect Mr A.P.’s arrest.
On 24 February 2009 Mr M. was questioned as a witness. He stated that he had not been shown Mr A.P.’s photograph before the special operation; that he had not been aware of who had been a target for arrest; that there had been no attempts at arresting Mr A.P. before he had arrived at the parking lot; that he had not seen who had been riding in VAZ-2108 when he had opened fire; and that he had not seen any weapon in the hands of those riding inside the car but had heard Mr T. shouting “Gun!”.
On 25 February 2009 Mr Ya. was questioned as a witness. He submitted that he had opened fire after Mr T. had been hit by the car in view of immediate danger for himself and the others. He had fired eight shots but could not tell how many bullets he had sent in the direction of the VAZ‑2108 car. When asked about the planning of the special operation aimed at arrest of Mr A.P., he stated that he had not known why it had been decided to effect the arrest at the parking lot in the presence of an important number of third persons and that he had not been shown a photograph of Mr A.P. before the commencement of the operation. Mr Ya. also stated that he had seen the driver of VAZ-2108 yet had not seen a pistol in his hands.
On 2 March 2009 Mr S. was questioned as a witness. He stated that he had not been shown Mr A.P.’s photograph; that the DCS officers had tried to stop VAZ-2108 car because it had started moving away from the parking lot; that he had not heard Mr T. shouting “Gun!” and that he had not seen anything resembling a weapon in the hands of those riding VAZ-2108.
On 18 March 2009 the investigative authority carried out re-enactment of the events of 11 September 2008 with the participation of Mr T. Attesting witnesses admitted that they could not see a weapon in the hands of a person representing Anton Saveykin, only a human silhouette.
On 9 April 2009 Mr T. was again questioned as a witness. He essentially repeated his previous statements.
On 14 April and 14 May 2009 the forensic expert examined the VAZ‑2108 car and studied the marks left by the fifteen bullets that had reached the vehicle.
On 29 April 2009 the forensic expert confirmed that it was impossible to fire out of the four duty pistols of the DCS officers without pulling a trigger.
On 27 May 2009 Mr A.P. was questioned as a witness. He stated that he had assumed that the men pursuing him had been bandits, not the police. He had only realised that they had belonged to a law-enforcement agency once someone had shouted “Stop!”.
On 9 June 2009 Mr Ya. was questioned as a witness. He stated that he had fired eight bullets during the operation of 11 September 2008.
On 28 May 2009 the second applicant was granted victim status.
On 23 June 2009 Mr Ya. was questioned as a suspect. He refused to make any statements or answer any questions.
On 2 August 2009 the regional investigative authority decided to terminate the investigation in case no. 8913058 for the lack of the event of a crime. They concluded that Mr Ya. had fired at the driver of the VAZ-2108 car in order to protect life and limb of others and that he had acted lawfully in compliance with official instructions and domestic law.
On 22 November 2010 the decision to terminate the investigation was quashed.
On 29 December 2010 the regional investigative authority again decided to terminate the proceedings.
Being dissatisfied with the wording of the decision of 29 December 2010, Mr Ya. challenged its lawfulness before a court.
On 28 February 2011 the Leninskiy District Court of Ufa pronounced the decision to terminate the investigation lawful. On 12 May 2011 the Supreme Court of Bashkortostan upheld the judgment on appeal.
It appears that the applicants continued to complain to domestic authorities but to no avail.
COMPLAINT
The applicants complain under Article 2 and 13 of the Convention that their son was killed as a result of poor planning of the policing operation and that there has been no meaningful investigation into the killing.
QUESTIONS TO THE PARTIES
1. Has the right to life, as guaranteed by Article 2 of the Convention, been violated in respect of Anton Saveykin?
(a) Was the DCS operation of 11 September 2008 planned and controlled by the authorities so as to minimise, to the greatest extent possible, recourse to lethal force and human losses? Were all feasible precautions in the choice of means and methods of a security operation taken (see McCann and Others v. the United Kingdom, 27 September 1995, Series A no. 324, §§ 146-50 and 194, and Hugh Jordan v. the United Kingdom, no. 24746/94, §§ 102–04, 4 May 2001)?
(b) Was there appropriate legal and administrative framework defining the limited circumstances in which DCS officers were allowed to use force and firearms, in the light of the relevant international standards? Did this framework provide for a system of adequate and effective safeguards against arbitrariness and abuse of force and even against avoidable accident (see Makaratzis v. Greece [GC], no. 50385/99, §§ 57-59, ECHR 2004‑XI, and Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 96, ECHR 2005‑VII)?
2. 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 in the present case by the domestic authorities sufficient to meet their obligation to carry out an effective investigation, as required by Article 2 of the Convention? Have the authorities taken all reasonable steps to ascertain the circumstances in which Anton Saveykin died? Was the length of the pre-investigation inquiry compatible with the requirements of Article 2 of the Convention in its procedural limb (see, mutatis mutandis, Kleyn and Aleksandrovich v. Russia, no. 40657/04, §§ 56-58, 3 May 2012, and Lyapin v. Russia, no. 46956/09, §§ 133-37, 24 July 2014)?
The parties are invited to submit a detailed update of factual and/or legal developments in the investigation in case no. 8913058, if any, that have occurred after 12 May 2011.
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