Deadly use of force by police officers in an ambush against two suspects. Incomplete research. Violation of the procedural and substantive part of the right to life
JUDGMENT
Magomayev v. Russia 26.07.2022 (app. no. 10829/11)
SUMMARY
Limits on the use of deadly force by state officials. Right to life.
The applicant is the father of G.M. The case involved the death of his son, as a result of a special operation carried out by state agents. The applicant’s son and another person K.M. deceased, had been considered a suspect in a terrorist attack against police officers. A premeditated ambush was set up by police officers against them, who fatally shot them. The investigation carried out was incomplete and the responsible police officers were never identified. The survey was archived. The applicant’s request to exercise support for the charge was rejected. The applicant did not have access to the criminal case file. He appealed under articles 2 and 13 of the Convention that the authorities had deliberately killed his son by covering up the whole operation as a shootout and that the authorities had failed to investigate his death.
The ECtHR found that domestic authorities failed to respond appropriately to serious allegations of inappropriate use of lethal force by state officials. The investigation was unable to ascertain the circumstances of the fatal shooting and lead to a determination of whether the force used was justified under the circumstances and to the identification and punishment of those responsible for the homicide. It therefore held that there had been a violation of the procedural part of Article 2.
Similarly, the ECtHR found that the police officers should have had the obligation to create different scenarios of the arrest operation and to minimize the risk of using lethal force. The nature of the wounds on G.M.’s body, as well as the multiple bullet marks, prove that they intended to fatally shoot him. The court ruled that the murder of G.M. it was a use of force which was not absolutely necessary for the pursuit of the purposes provided for in Article 2 § 2 of the Convention.
It awarded the applicant the sum of 10,000 euros for damages, the sum of 60,000 euros for non pecuniary damage and 3,000 euros for legal costs.
PROVISION
Article 2
PRINCIPAL FACTS
The applicant is the father of Mr G.M. The case concerns the death of the applicant’s son as a result of a special operation carried out by State agents.
According to the Government (who have not provided relevant documents), at some point the Federal Security Service of the Republic of Dagestan (“the FSB”) and officers of the Ministry of Interior of the Republic of Dagestan (“the UVD officers”) 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 January 2010 the UVD officers obtained information on G.M.’s and K.A.’s whereabouts and decided to arrest them.
According to the eyewitnesses’ statements submitted by the applicant, on 10 January 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.
- THE EVENTS OF 11 JANUARY 2010
According to the Government, on 11 January 2010 at about 2 p.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’ order to stop the car, opened fire “using firearm of unspecified type”, 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.
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.’s 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 – as subsequently established, law enforcement officers, – 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.’s body was lying on the ground, as he had not got in the car. Immediately after the shooting, the masked men moved G.M.’s 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.
- CRIMINAL CASE AGAINST G.M. AND K.A.
On the same date the authorities opened criminal proceedings against G.M. and K.A. on suspicion of encroachment on the officers’ lives and illegal arms possession.
During an on-site inspection a pistol was found lying on the sidewalk next to G.M.’s body, as well as three hand grenades, including one in the applicant’s pocket. According to a forensic explosives report, the gunshot residue was found on swabs taken from G.M.’s hands. The biological forensic report of 6 May 2010 did not exclude that the traces of sweat discovered on the seized firearms could belong to G.M. and K.A.
According to the Government, firearms and ammunition were found during searches in G.M.’s and K.A.’s homes on unspecified dates. They did not submit copies of the search records or other relevant documents.
Multiple bullet wounds were found on G.M.’s body, including at sternum area.
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.
It does not appear that the authorities questioned other witnesses, including, in particular, the officers carrying out the operation, or established those officers’ identities.
The applicant did not have access to the criminal case file.
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 March 2011 the proceedings against G.M. and K.A. were discontinued on the same grounds.
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.
On 9 July 2010 the Sovetskiy District Court of Makhachkala dismissed the applicant’s complaint about the investigators’ inaction (as upheld on appeal on 16 August 2010 by the Supreme Court of the Republic of Dagestan). The courts upheld the investigator’s 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.
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’s death.
THE DECISION OF THE COURT…
- PROCEDURAL OBLIGATION UNDER ARTICLE 2 OF THE CONVENTION
The Court notes at the outset that no criminal investigation into G.M.’s death was carried out. The investigation opened against G.M. and A.K. 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.
In particular, the officers involved in the operation had never been identified and questioned. Likewise, no eyewitnesses of the incident had been identified and questioned, even though the events had occurred in a crowded area . Nor did the investigation address the issue whether the use of force had been justified.
Given that no testimonies had been obtained, it is unclear how the State authorities came up with the official version of events 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.
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.
The applicant was not accorded the status of victim in these proceedings and was denied access to the case materials. His requests to have a separate investigation into the killing have been dismissed.
Accordingly, there has been a violation of Article 2 of the Convention under its procedural limb.
- RESPONSIBILITY OF THE STATE FOR THE DEATH OF G.M.
The parties disagreed on whether the use of lethal force against the applicant’s son was “absolutely necessary”, as well as on the exact circumstances of this operation.
The Court’s ability to evaluate the operation has been seriously hampered by the lack of any meaningful investigation into the State officials’ conduct. In the present case, the Court has no sufficient evidence which would enable it to confirm “beyond reasonable doubt” the applicant’s account of events. At the same time, the Government’s account is not fully consistent with the available evidence and, insofar as the course of the events concerned, contains numerous omissions and ambiguities.
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.’s profile and activities . 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. 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.
The number and the character of wounds on G.M.’s body, as well as multiple bullet traces on the car , in the Court’s view, raise doubts as to whether the officers had intended to apprehend the two men, and had not shot to kill.
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 “absolutely necessary” 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 § 2 of the Convention .
There has accordingly been a violation of the substantive aspect of Article 2 of the Convention.
Just Satisfaction:
i)EUR 10,000 in respect of pecuniary damage;
(ii) EUR 60,000 in respect of non-pecuniary damage;
(iii) EUR 3,000 in respect of costs and expenses
