The case concerns the death of the applicant\u2019s son as a result of a special operation carried out by State agents.<\/p>\n
THIRD SECTION This judgment is final but it may be subject to editorial revision.<\/p>\n In the case of Magomayev v. Russia,<\/strong><\/p>\n The European Court of Human Rights (Third Section), sitting as a Committee composed of:<\/p>\n Georgios A. Serghides, President, Having regard to:<\/p>\n the application (no.\u00a010829\/11) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) on 15 February 2011 by a Russian national, Mr Omar Shalayevich Magomayev, born in 1954 and living in Makhachkala (\u201cthe applicant\u201d) who was represented by Mr\u00a0D.S.\u00a0Itslayev, a lawyer practising in Grozny;<\/p>\n the decision to give notice of the application to the Russian Government (\u201cthe Government\u201d), represented by Mr A. Fedorov and Mr M. Galperin, former Representatives of the Russian Federation to the European Court of Human Rights, and later by their successor in this office, Mr\u00a0M.\u00a0Vinogradov;<\/p>\n the decision to reject the Government\u2019 s objection to examination of the application by the Committee;<\/p>\n the parties\u2019 observations;<\/p>\n Having deliberated in private on 5 July 2022,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n SUBJECT-MATTER OF THE CASE<\/strong><\/p>\n 1. The applicant is the father of Mr G.M. The case concerns the death of the applicant\u2019s son as a result of a special operation carried out by State agents.<\/p>\n 2. According to the Government (who have not provided relevant documents), at some point the Federal Security Service of the Republic of Dagestan (\u201cthe FSB\u201d) and officers of the Ministry of Interior of the Republic of Dagestan (\u201cthe UVD officers\u201d) acquired information on alleged involvement of G.M. and his acquaintance K.A. in an illegal armed group and preparation of attacks on law enforcement officers. On 11\u00a0January 2010 the UVD officers obtained information on G.M.\u2019s and K.A.\u2019s whereabouts and decided to arrest them.<\/p>\n 3. According to the eyewitnesses\u2019 statements submitted by the applicant, on 10\u00a0January 2010 and on the morning of the next day several masked men in a Gazel vehicle inspected houses in a crowded Irchi Kazaka street in Makhachkala.<\/p>\n I. The events of 11 January 2010<\/strong><\/p>\n 4. According to the Government, on 11 January 2010 at about 2\u00a0p.m. the UVD and the FSB officers attempted to apprehend G.M. and K.A., who were driving in a car in the centre of Makhachkala. G.M. and K.A. disobeyed the officers\u2019 order to stop the car, opened fire \u201cusing firearm of unspecified type\u201d, and K.A. attempted to throw a hand grenade. The officers (none of whom were harmed) fired at them in defence and killed G.M. and K.A.<\/p>\n 5. According to the applicant (who provided detailed statements of seven witnesses including eyewitnesses of the fatal shooting, as well as photographs of the scene), when G.M. and K.A, unarmed, were approaching K.A.\u2019s car parked in Irchi Kazaka street that day, unspecified officers blocked the road. G.M. (who remained in the street) and K.A. (who entered the car) came under intense fire from three masked men in plain clothes \u2013 as subsequently established, law enforcement officers, \u2013 who had been waiting for them in an ambush. Without giving any warning, the men fired three shots from unspecified firearms. Then the above-mentioned Gazel vehicle arrived and blocked the road. Witnesses heard automatic gunfire. Those shots were fired by men standing near the vehicle. G.M. and K.A. were killed on the spot. Several bullets hit the car (as further confirmed by the ballistics experts). G.M.\u2019s body was lying on the ground, as he had not got in the car. Immediately after the shooting, the masked men moved G.M.\u2019s body and searched for firearms but did not find any on him. The officers allegedly planted firearms and ammunition at the scene, to imitate a shootout.<\/p>\n II. Criminal case against G.M. and K.A.<\/strong><\/p>\n 6. On the same date the authorities opened criminal proceedings against G.M. and K.A. on suspicion of encroachment on the officers\u2019 lives and illegal arms possession.<\/p>\n 7. During an on-site inspection a pistol was found lying on the sidewalk next to G.M.\u2019s body, as well as three hand grenades, including one in the applicant\u2019s pocket. According to a forensic explosives report, the gunshot residue was found on swabs taken from G.M.\u2019s hands. The biological forensic report of 6\u00a0May 2010 did not exclude that the traces of sweat discovered on the seized firearms could belong to G.M. and K.A.<\/p>\n 8. According to the Government, firearms and ammunition were found during searches in G.M.\u2019s and K.A.\u2019s homes on unspecified dates. They did not submit copies of the search records or other relevant documents.<\/p>\n 9. Multiple bullet wounds were found on G.M.\u2019s body, including at sternum area.<\/p>\n 10. The investigators questioned several witnesses who had been in the vicinity of the scene, heard the gunshots but had not seen the events unfolding; as well as relatives of G.M. and K.A., including the applicant.<\/p>\n 11. It does not appear that the authorities questioned other witnesses, including, in particular, the officers carrying out the operation, or established those officers\u2019 identities.<\/p>\n 12. The applicant did not have access to the criminal case file.<\/p>\n 13. Several times the proceedings against G.M. and K.A. were discontinued due to their death and resumed by a higher investigating authority, since the investigation was incomplete. On 23\u00a0March 2011 the proceedings against G.M. and K.A. were discontinued on the same grounds.<\/p>\n III. The applicant\u2019s attempts to initiate an investigation into his son\u2019s death<\/strong><\/p>\n 14. The applicant and his lawyer on several occasions requested the investigative authorities to open a criminal case into the killing of G.M. and K.A.; to grant the applicant and other relatives victim status; to provide information and records of investigative actions; and to question eyewitnesses and the officers carrying out the operation. Those requests were dismissed or left unanswered.<\/p>\n 15. On 9 July 2010 the Sovetskiy District Court of Makhachkala dismissed the applicant\u2019s complaint about the investigators\u2019 inaction (as upheld on appeal on 16 August 2010 by the Supreme Court of the Republic of Dagestan). The courts upheld the investigator\u2019s decision that, in view of the ongoing criminal proceedings against G.M. and A.K., it was not appropriate, at that stage, to open proceedings into their killing, and to grant victim status to the relatives. The courts confirmed that the identities of the officers involved in the operation could not be revealed as that was confidential information in terms of the Suppression of Terrorism Act, and therefore they could not be questioned. The courts upheld the refusal of the request for access to the criminal case-file material as lawful.<\/p>\n 16. The applicant complained under Articles 2 and 13 of the Convention that the authorities had intentionally killed his son covering the whole operation as a shootout, and that the authorities failed to investigate his son\u2019s death.<\/p>\n THE COURT\u2019S ASSESSMENT<\/strong><\/p>\n 17. The applicant\u2019s complaints are not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible.<\/p>\n 18. Relevant general principles are summarised in Dalakov v. Russia (no.\u00a035152\/09, \u00a7\u00a7 61-65, 16 February 2016).<\/p>\n 19. It is common ground between the parties that the death of the applicant\u2019s son G.M. resulted from the use of lethal force by State agents.<\/p>\n I. Procedural obligation under Article 2 of the Convention<\/strong><\/p>\n 20. The Court notes at the outset that no criminal investigation into G.M.\u2019s death was carried out. The investigation opened against G.M. and A.K. (see paragraph 6 above) was not aimed at establishing the events leading to the use of lethal force against G.M. That investigation failed to reconstruct the chain of those events or identify or question the witnesses of the events.<\/p>\n 21. In particular, the officers involved in the operation had never been identified and questioned (see paragraphs\u00a011 and 15 above) Likewise, no eyewitnesses of the incident had been identified and questioned, even though the events had occurred in a crowded area (see paragraphs 5 and 10 above). Nor did the investigation address the issue whether the use of force had been justified.<\/p>\n 22. Given that no testimonies had been obtained, it is unclear how the State authorities came up with the official version of events (see paragraph 4 above) and on what evidence it was based. The discrepancies between their account and the evidence in the case had never been properly addressed. For example, the case file contained no explanations why the body of G.M. had been found on the ground, while, according to the official account, G.M. and K.A. had been shot when driving the car (see paragraphs 4, 5 and 7 above).<\/p>\n 23. Therefore, the domestic authorities had failed to demonstrate a proper response to the serious allegations of inappropriate use of lethal force by State officials. The investigation was incapable of ascertaining the circumstances of the fatal shooting and of leading to a determination of whether the force used was justified in the circumstances and to the identification and punishment of those responsible for an unlawful killing. It also cannot be said that the authorities have taken the reasonable steps to secure the evidence concerning the incident, including eyewitness testimony (see Dalakov, cited above, \u00a7 65).<\/p>\n 24. The applicant was not accorded the status of victim in these proceedings and was denied access to the case materials (see paragraph 12 above). His requests to have a separate investigation into the killing have been dismissed (see paragraph 15 above).<\/p>\n 25. Accordingly, there has been a violation of Article 2 of the Convention under its procedural limb.<\/p>\n II. Responsibility of the State for the death of G.M.<\/strong><\/p>\n 26. The parties disagreed on whether the use of lethal force against the applicant\u2019s son was \u201cabsolutely necessary\u201d, as well as on the exact circumstances of this operation.<\/p>\n 27. The Court\u2019s ability to evaluate the operation has been seriously hampered by the lack of any meaningful investigation into the State officials\u2019 conduct (see paragraphs 20-21 above). In the present case, the Court has no sufficient evidence which would enable it to confirm \u201cbeyond reasonable doubt\u201d the applicant\u2019s account of events. At the same time, the Government\u2019s account is not fully consistent with the available evidence and, insofar as the course of the events concerned, contains numerous omissions and ambiguities (see paragraphs 20-22 above).<\/p>\n 28. It is not in dispute that the operation had not been spontaneous, but had been planned in advance with at least some prior knowledge about G.M.\u2019s profile and activities (see paragraphs 2 – 3 above). The officers should have been therefore under an obligation to envisage different scenarios of an apprehension operation and to minimise the risk of the use of lethal force (see Dalakov, cited above, \u00a7\u00a081). However, the Government did not provide any details in respect of the planning stage of the operation to suggest that any preparations had been made in this connection.<\/p>\n 29. The number and the character of wounds on G.M.\u2019s body, as well as multiple bullet traces on the car (see paragraphs\u00a05 and 9 above), in the Court\u2019s view, raise doubts as to whether the officers had intended to apprehend the two men, and had not shot to kill (see Mansuro\u011flu v. Turkey, no. 43443\/98, \u00a7\u00a7 86-87, 26 February 2008).<\/p>\n 30. In the absence of information on the crucial elements concerning the events, as well as any domestic assessment whether the use of force by the officers against G.M. and K.A. had been \u201cabsolutely necessary\u201d and not excessive, the Government may not be regarded as having accounted for the use of lethal force in the circumstances of the present case. The Court is therefore not persuaded that the killing of G.M. constituted a use of force which was no more than absolutely necessary in pursuit of the aims provided for in Article 2\u00a0\u00a7\u00a02 of the Convention (see Dalakov, cited above, \u00a7\u00a085, and Makaratzis v. Greece [GC], no. 50385\/99, \u00a7 67, ECHR 2004\u2011XI).<\/p>\n 31. There has accordingly been a violation of the substantive aspect of Article 2 of the Convention.<\/p>\n III. Article\u00a013 of the Convention<\/strong><\/p>\n 32. Having regard to its findings in paragraphs 20-25 above, the Court considers that there is no need to give a separate ruling on the merits of the complaint under Article 13 of the Convention.<\/p>\n APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/strong><\/p>\n 33. The applicant claimed 33,756 euros (EUR) in compensation for pecuniary damage caused by the loss of financial support from his son and EUR\u00a0200,000 in respect of non-pecuniary damage. The applicant claimed EUR\u00a04,387 in respect of the costs and expenses incurred before the Court. He asked for the award in respect of costs and expenses to be made into the bank account of his representative.<\/p>\n 34. The Government contested those claims.<\/p>\n 35. The Court recalls that it may, where appropriate, grant pecuniary compensation in respect of loss of material support to close relatives of the deceased (see Imakayeva v.\u00a0Russia, no.\u00a07615\/02, \u00a7 213, ECHR 2006\u2011XIII (extracts)). The Court awards the applicant EUR\u00a010,000 in respect of pecuniary damage, plus any tax that may be chargeable.<\/p>\n 36. The Court further awards the applicant EUR 60,000 in respect of non\u2011pecuniary damage, plus any tax that may be chargeable, and rejects the remainder of the claims.<\/p>\n 37. Finally, having regard to the documents in its possession and to its case\u2011law, the Court considers it reasonable to award EUR 3,000, plus any tax that may be chargeable to the applicant, in respect of costs and expenses. The award under this head is to be made directly into the applicant\u2019s representative\u2019s bank account as indicated by the applicant.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1. Declares the application admissible;<\/p>\n 2. Holds that there has been a violation of Article 2 of the Convention under its substantive and procedural limbs;<\/p>\n 3. Holds that there is no need to examine the merits of the complaint under Article\u00a013 of the Convention;<\/p>\n 4. Holds<\/p>\n (a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:<\/p>\n (i) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage;<\/p>\n (ii) EUR 60,000 (sixty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n (iii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid into the representative\u2019s bank account;<\/p>\n (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;<\/p>\n 5. Dismisses the remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 26 July 2022, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Olga Chernishova \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0Georgios A. Serghides
\nCASE OF MAGOMAYEV v. RUSSIA<\/strong>
\n(Application no. 10829\/11)<\/em>
\nJUDGMENT
\nSTRASBOURG
\n26 July 2022<\/p>\n
\nAnja Seibert-Fohr,
\nPeeter Roosma, judges,
\nand Olga Chernishova, Deputy Section Registrar,<\/p>\n
\nDeputy Registrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0President<\/p>\n