CEDH · CASELAW;COMMUNICATEDCASES;ENG — 27 juin 2017

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7ACB8D74 { margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; text-indent:14.2pt }   Communicated on 27 June 2017   THIRD SECTION Application no 11053/12 Magomed Magomedovich SAIDGADZHIYEV and Magomedtagir Gadzhimagomedovich AKHMEDOV against Russia lodged on 20 February 2012 STATEMENT OF FACTS The applicants, Mr Magomed Saidgadzhiyev and Mr Magomedtagir Akhmedov, are Russian nationals who were born in 1934 and 1936 respectively. The first applicant resides in the village of Dzhanga, and the second applicant in the village of Gubden, in the Karabudakhkentskiy district, Dagestan. The first applicant is the father of Mr Saidgadzhi Saidgadzhiyev, who was born in 1966, and the second applicant is the father of Mr   Gadzhimagomed Akhmedov, who was born in 1968. The facts of the case, as submitted by the applicants, may be summarised as follows. A.     Events of 27-28 October 2008 1.     Events concerning Mr Saidgadzhi Saidgadzhiyev On 27 October 2008 Saidgadzhi Saidgadzhiyev left his house for work. Some time later he returned and showed his wife, Ms P.I., a text message on his mobile telephone from his friend Gadzhimagomed Akhmedov, which stated: “Help me. I’m in trouble”. The text was in the local (“Gubden”) dialect of the Dargin language. Then Saidgadzhi Saidgadzhiyev left his home. Sometime later Ms P.I. tried calling him, but to no avail. Later that day she received a text message from her husband’s mobile telephone in the “Sergokalin” dialect of the Dargin language, which Saidgadzhi Saidgadzhiyev did not know. He did not return home that day. The following day, 28 October 2008, the first applicant complained of Saidgadzhi Saidgadzhiyev’s disappearance to the authorities. Late at night on 28 October 2008 the first applicant learnt that his son Saidgadzhi Saidgadzhiyev had been killed that day in the village of Kadyrkent in the Sergokalinskiy district in Dagestan. Shortly thereafter the first applicant learnt from his neighbours that his son had been abducted during the day on 27 October 2008 by unidentified men in a VAZ-2114 model car. 2.     Events concerning Mr Gadzhimagomed Akhmedov At some point prior to 27 October 2008 the local police searched the house where the second applicant and his son Gadzhimagomed Akhmedov resided. On 27 October 2008 the second applicant was at home when a police officer who had participated in the search arrived at his house and asked Gadzhimagomed Akhmedov to provide the password for the computer which had been seized by the police during the search. The second applicant’s son told him that there was no password and the police officer left. In the afternoon on 27 October 2008 Gadzhimagomed Akhmedov left his home for the local mosque. In the evening on 27 October 2008, the second applicant and his relatives tried to reach him on his mobile telephone, but to no avail. On the morning of 28 October 2008 the second applicant complained of his son’s disappearance to the local prosecutor’s office. At about 7 p.m. on 28 October 2008 the second applicant’s nephew received a text message from Gadzhimagomed Akhmedov’s mobile telephone which stated: “Don’t call me. I’m in Moscow”. The message was in the “Sergokalin” dialect of the Dargin language, which Gadzhimagomed Akhmedov did not know. Late at night on 28 October 2008 police officers from the Karabudakhkentskiy district police station informed the second applicant that his son had been shot dead during a special operation carried out in Kadyrkent, Dagestan. Shortly after that the second applicant learnt from unspecified sources that his son Gadzhimagomed Akhmedov had been abducted on 27 October 2008 by unidentified men in a VAZ-2114 car with heavily tinted windows and a Moscow registration number. The abductors had driven away from the village of Gubden through a checkpoint without being stopped. 3.     Subsequent developments On 29 October 2008 the applicants learnt from the police that at about 8   p.m. on 28 October 2008 their sons and a third person, Mr M.A., had opened fire with guns at police officers and were killed in return fire. On 30 October 2008 the bodies of their sons were returned to the applicants for burial. Prior to the funerals the bodies were examined by a medical doctor and the applicants’ relatives, who found a number of injuries on them, including broken bones, haematomata, torn tissue and skin and other signs of torture. Moreover, the body of Gadzhimagomed Akhmedov did not have any gunshot wounds. The state of the bodies along with the numerous injuries showed that both men had died in circumstances other than the ones claimed by the authorities; that they had been tortured and then killed. On 27 November 2008 the first applicant received the death certificate for his son Saidgadzhi Saidgadzhiyev, which stated that he had died on 27   October 2008. The applicant spoke with the medical doctor who had issued the relevant medical document and the latter stated that according to the state of the body, the death had occurred on 27 October and not on 28   October 2008 as claimed by the authorities. B.     Official proceedings relating to the events 1.     The applicants’ attempts to initiate an investigation into the circumstances of their sons’ killing On 28 October 2008 the applicants lodged complaints in respect of their sons’ killing with the local prosecutor’s office. On 29 October 2008 the Investigative Committee of the Izberbash district in Dagestan (“the investigators”) opened criminal case no. 83457 against the applicants’ sons Saidgadzhi Saidgadzhiyev and Gadzhimagomed Akhmedov in connection “with their armed attack from a VAZ-2109 car carried out against on-duty police officers, as a result of which they were killed by return fire”. On 29 October 2008, upon the investigators’ order, Dr Z.Sh. from the Dagestan Forensic Examinations Bureau (“the Bureau”) carried out post ‑ mortem examinations on the bodies of Saidgadzhi Saidgadzhiyev and Gadzhimagomed Akhmedov. The results of the examination described only the gunshot wounds found on the bodies (also see below). On 29 October 2008 the investigators ordered another forensic examination of the bodies of the applicants’ sons. The examination was carried out in the absence of actual bodies, on the basis of the description of the examination carried out on 28 October 2008. On 6 November 2008 the applicants were informed by the Investigative Committee of the Russian Federation that their complaints were under examination. In reply to the applicants’ subsequent requests for information on the progress of the investigation, similar replies were given on 17   and   24   March 2009. On 21 January 2009 the Bureau issued its conclusion on the examination of the bodies of Saidgadzhi Saidgadzhiyev and Gadzhimagomed Akhmedov. According to the document, Saidgadzhi Saidgadzhiyev had sustained four gunshot wounds and Gadzhimagomed Akhmedov had sustained two gunshot wounds, which caused their deaths. On 2 April 2009 the applicants’ lawyer requested information about the progress of the investigation. No reply was given. On 20 August 2011 the first applicant asked the investigators to provide information on the steps taken by them to comply with the decision of the Izberbash District Court of 5 February 2010 (see below). No reply was given. On an unspecified date in November 2011 the first applicant asked the investigators to provide information on the steps taken by them to comply with the decision of the Izberbash District Court of 1 November 2011 (see below). No reply was given. 2.     The applicants’ complaints against the investigators On an unspecified date in May 2009 the first applicant lodged a complaint with the Izberbash District Court in respect of the failure of the investigators to effectively investigate the circumstances of the killing of his son Saidgadzhi Saidgadzhiyev and his friend Gadzhimagomed Akhmedov. In particular, he stated that according to the official version of the events broadcast on the local TV and radio, Saidgadzhi Saidgadzhiyev and Gadzhimagomed Akhmedov had been members of an illegal armed group; on 28 October 2008 they had been driving to the forest to deliver food and firearms to their accomplices when they had attacked the police officers and had been shot dead in return fire. However, the first applicant had proof that both men had been abducted on 27 October 2008 and subjected to torture. On 30 October 2008 when their bodies had been returned to the deceased’s relatives for burial, they had found numerous signs of torture on their corpses and filmed the state of the bodies on videotape with detailed description of each injury. The relatives had established that the body of Gadzhimagomed Akhmedov had not had any gunshot wounds, but numerous burns and deep cuts. The body of Saidgadzhi Saidgadzhiyev had also had similar wounds. Both bodies had been filmed and examined in the presence of a medical doctor. The applicant further stated that he and the second applicant had lodged numerous complaints with the local law-enforcement authorities requesting that a criminal investigation be initiated into the circumstances of their sons’ abduction and subsequent death and the torture to which they had been subjected prior to dying. Both applicants had given permission to have their sons’ bodies exhumed, but all of the replies they received between November 2008 and March 2009 just stated that their complaints had been forwarded to another agency for examination. The applicant further stated that the last reply to his request to have a criminal case opened was given on 24 March 2009 stating that the decision concerning the initiation of the investigation would be taken within “the time-frame prescribed by law”, but no such decision had been taken. In spite of the numerous pieces of evidence furnished by the applicants to the investigators, including the statements of relatives who had participated in the examination of the bodies before the burial, the medical doctor who had been present and the video footage of the state of the bodies after their release from the authorities, no steps were taken by the investigators to discover the circumstances of the deaths of Saidgadzhi Saidgadzhiyev and Gadzhimagomed Akhmedov. The applicant requested that the court oblige the investigators to take the following steps: “a) to question [the applicants] and other relatives of Saidgadzhi Saidgadzhiyev and Gadzhimagomed Akhmedov; b) to examine the video footage of the examination of the corpses [prior to burial]; c) to exhume the bodies and carry out a post-mortem examination; d) to open a criminal case into the killing of Saidgadzhi Saidgadzhiyev and Gadzhimagomed Akhmedov.” On 19 May 2009 the Izberbash District Court granted the first applicant’s complaint in full and ordered the investigators to take the steps requested. On an unspecified date in January 2010 the first applicant again lodged a complaint with the Izberbash District Court, stating that its decision of 19   May 2009 had not been complied with and that none of the requested steps had been taken by the investigators. In his complaint the applicant also stated that the witnesses had seen that the abductors who had taken away their sons prior to the incident had been driving a car with an official registration number containing the digits 177, and that the physical location of Saidgadzhi Saidgadzhiyev and Gadzhimagomed Akhmedov on 27 and 28   October 2008 could have been established had the investigators requested information on their mobile-phone connections on those dates. He further listed the names and the addresses of the witnesses to the abduction of Gadzhimagomed Akhmedov and stressed that latter’s body and that of his son should be exhumed and a detailed post-mortem examination should be carried out. On 5 February 2010 the Izberbash District Court again granted the first applicant’s complaint in full and ordered the investigators to take the steps requested. On an unspecified date in 29 September 2011 the first applicant again lodged a complaint with the Izberbash District Court and stated that its decision of 5 February 2010 had not been complied with and none of the requested steps had been taken by the investigators. On 1 November 2011 the Izberbash District Court again granted the first applicant’s complaint in full and ordered the investigators to take the steps requested. It appears that the court’s orders were not complied with and none of the requested steps were taken. On 15 March 2012 the second applicant lodged a complaint with the Izberbash District Court in respect of the failure of the investigative authorities to take basic steps to discover the circumstances of the deaths of Saidgadzhi Saidgadzhiyev and Gadzhimagomed Akhmedov despite of all the information provided by him and the first applicant. The outcome of those proceedings is unknown. According to the applicants, no tangible information, other than formalistic replies, has been provided by the authorities on the progress of the investigation, which appears to be pending. C.     Relevant domestic law For a summary of relevant domestic law see Dalakov v. Russia (no.   35152/09, §§ 51-53, 16 February 2016). COMPLAINTS The applicants complain under Article 2 of the Convention that their sons Mr Saidgadzhi Saidgadzhiyev and Mr Gadzhimagomed Akhmedov were killed by State agents and that the authorities failed to investigate the matter. Under Article 3 of the Convention the applicants complain that prior to their death their sons were subjected to torture and that no investigation was carried out into the matter. Under Article 13 of the Convention the applicants complain that they did not have effective domestic remedies in respect of the above violations of Articles 2 and 3 of the Convention. QUESTIONS 1.     1.     Has the right to life of the applicants’ sons Mr Saidgadzhi Saidgadzhiyev and Mr Gadzhimagomed Akhmedov, ensured by Article 2 of the Convention, been violated in the present case?   2.     In particular, did the applicant’s sons’ (Mr Saidgadzhi Saidgadzhiyev and Mr Gadzhimagomed Akhmedov) deaths result from a use of force which was absolutely necessary?   3.     Having regard to the procedural protection of the right to life (see paragraph 104 of Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII), was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention?   4.     Were Mr Saidgadzhi Saidgadzhiyev and Mr Gadzhimagomed Akhmedov subjected to torture prior to their deaths, in breach of Article 3 of the Convention? Having regard to the procedural protection from torture (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation into the matter by the domestic authorities in breach of Article 3 of the Convention?   5.     Did the applicants have at their disposal effective domestic remedies for the above complaints as required by Article 13 of the Convention?   6.     The Government are requested to provide a copy of the following documents: a) the contents of all of the pre-investigation inquiries carried out in connection with the deaths of the applicants’ sons, including a copy of the contents of the internal service inquires carried out into the events of 27 ‑ 28   October 2008 by the relevant State agencies; b)     a copy of all of the decisions to refuse to open a criminal case into the circumstances of the deaths of Mr Saidgadzhi Saidgadzhiyev and Mr   Gadzhimagomed Akhmedov; c)     the contents of all of the investigation files in criminal cases opened in connection with the deaths of the applicants’ sons and/or concerning the circumstances of the shooting on 27-28 October 2008, including a copy of the contents of criminal case no. 83457 opened against Mr Saidgadzhi Saidgadzhiyev and Mr Gadzhimagomed Akhmedov.   7.     The applicants are asked to produce a copy of all of their appeals to supervisory bodies and domestic courts against the authorities’ refusals to open a criminal case to investigate the circumstances of their sons’ deaths and/or the decisions to terminate criminal proceedings opened in connection with the deaths of Mr Saidgadzhi Saidgadzhiyev and Mr Gadzhimagomed Akhmedov.