Shepherds were killed due to unjustified use of force by police! Violation of the essential and procedural part of the right to life
JUDGMENT
Gasangusenov v. Russia 30.03.2021 (app. no. 78019/17)
SUMMARY
The case concerned the killing of the applicant’s two sons, who worked as shepherds, during a
special operation carried out by State agents in August 2016 in Goor-Khindakh, Dagestan (Russia).
It also concerned the ensuing investigation.
The Court found that the applicant’s sons had been killed as a result of the unjustified use of lethal
force, in breach of Article 2 of the Convention. There was no evidence that serious consideration had
been devoted to the planning and carrying out of the operation. In that light, the Court found that it
had not been demonstrated that the lethal force used, which had brought about the applicant’s
sons’ deaths, had been absolutely necessary.
It also found that no effective investigation had been conducted into their killing. The Court held,
under Article 46 (binding force and execution of judgments) of the Convention, that the Government
had to take all necessary and appropriate measures to ensure in the present case that the
procedural requirements of Article 2 were complied with.
PROVISION
Article 2
PRINCIPAL FACTS
The applicant, Murtazaali Magomedovich Gasangusenov, is a Russian national who was born in 1970
and lives in Goor-Khindakh, Dagestan (Russia).
The applicant’s sons, Gasangusen and Nabi Gasangusenov, born in 1997 and 1999 respectively,
worked as shepherds on the Lagadib grazing land, which was situated about 3 to 4 km away from
Goor-Khindakh, a mountain village in Shamilskiy district. On various dates between June and August
2016, several terrorist attacks were carried out by members of illegal armed groups in the area,
including the assassination of a District Court judge on 11 August 2016, the blowing-up of a local
television tower, and the burning down of a school.
On the evening of 23 August 2016, Gasangusen and Nabi Gasangusenov did not return home for
dinner as planned. Early the following morning, their bodies were found about 1 km from the village.
The official information issued by the police in the early hours of 24 August 2016 stated that during a
special operation in the late evening of 23 August shots had been fired at law-enforcement officers
and the criminals had been killed in the return fire. On the same day, a criminal case was opened
against the applicant’s sons for attempted murder of a police officer and trafficking of firearms.
On 31 January 2017 the applicant complained to the Investigative Committee and requested that a
criminal case be opened into his sons’ killing. He alleged that his sons’ bodies had been clothed in
jackets that were not their own, that the number of bullet holes in the jackets did not match the
bullet wounds on the bodies and that they had been killed by law-enforcement officers for unknown
reasons. In March 2017, the applicant complained to the District Court, stating that he had not
received a response from the investigating authorities, and, in April 2017, reiterated his request. No
reply was given to those requests.
On 15 November 2017 the investigation into the criminal case against the Gasangusenov brothers
was terminated as it had failed to confirm that they had attacked the law-enforcement officers. A
part of the file was transferred for investigation into their killing. Based on that material, a criminal
case was opened into the killing of Gasangusen and Nabi Gasangusenov.
On 28 November 2017, the applicant was granted victim status and questioned. According to the
applicant, his sons had been killed intentionally under the orders of the head of the police station,
who had wanted to use the situation around the recent terrorist attacks to advance his career. He
claimed that the officer had had his sons killed to show that the local police had been successfully
fighting against the terrorists.
At the time of the application, the investigation was still pending and the perpetrators of the killing
of Nabi and Gasangusen Gasangusenov had not been identified.
Relying on Article 2 (right to life) and Article 13 (right to an effective remedy) of the European
Convention on Huan Rights, the applicant complained that State agents had killed his sons to pass
them off as members of illegal armed groups operating in the area, that the authorities had failed to
effectively investigate the matter and that the delay in opening a case had been overly long.
THE DECISION OF THE COURT…
Article 2
The Court observed that the documents submitted contained no indication of the applicant’s sons’
involvement in any type of criminal activities. It noted that the way the bodies had been found lent
credence to the crime scene having been staged. It observed that the applicant’s allegation that his
sons had been killed by State agents was supported by the material submitted, in particular by a
news report, an official letter confirming that the operation had taken place, and the statement in
the decision to open a criminal case against the brothers. Moreover, it had been corroborated by
statements given by officers in Moscow that had been deployed to assist the local law-enforcement
forces for the special operation, by local police officers and by local residents.
Considering the lack of an alternative version of the events in the Government’s arguments, the
Court found that Gasangusen and Nabi Gasangusenov had been killed during a special operation
carried out by State agents.
Concerning the special operation, the Court noted that no information on the planning of the
operation could be derived from the documents submitted. It seemed that no serious consideration
had been devoted to its planning and carrying out. In that light, the Court found that it had not been
demonstrated that the lethal force used, which had brought about Gasangusen and Nabi
Gasangusenov’s death, had been absolutely necessary.
Accordingly, the Court held that there had been a violation of the substantive aspect of Article 2 of
the Convention.
Regarding the alleged violation of the procedural aspect of Article 2, the Court observed that the
examination of the crime scene had been carried out superficially and that certain important
elements had only been found during a second examination the following day. Throughout the
proceedings, the investigators had taken no steps to clarify a number of key issues. Furthermore,
despite the coherent and consistent allegations of the applicant, and the orders of the domestic
court, the criminal case into the killing of the applicant’s sons had been opened only one year and
three months after the incident and the domestic investigators had failed to give a proper response
to the serious allegations of inappropriate use of lethal force by agents of the State.
The Court concluded that there had been a violation of Article 2 of the Convention in relation to the
effectiveness of the investigation.
Article 13
In view of its findings under Article 2, the Court held that it was unnecessary to examine the
complaint under Article 13 of the Convention.
Article 46
With respect to the failure to investigate, the Court noted that the investigation in the criminal case
into the killing of Gasangusen and Nabi Gasangusenov was still pending at the national level.
However, it was unclear whether any factual findings had been made in the context of the criminal
case and the other relevant proceedings. The Court considered that this investigation should
elucidate the main circumstances of the use of lethal force by the State agents and evaluate their
actions in consideration of all the known facts. It should also secure the next-of-kin’s access to the
key documents in the criminal cases.
The Court therefore held that the Government must take all necessary and appropriate measures to
ensure in the present case that the procedural requirements of Article 2 of the Convention were
complied with.
Just satisfaction (Article 41)
The Court held that Russia was to pay the applicant 120,000 euros (EUR) in respect of non-pecuniary
damage.
