CEDH · CASELAW;COMMUNICATEDCASES;ENG — 2 novembre 2017

.s800EAC49 { font-size:12pt } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .sBB9EE52A { font-family:Arial } .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 } .s9296A950 { margin-top:36pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s39A7D870 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid }     Communicated on 2 November 2017     THIRD SECTION Application no. 34205/17 Layla Yusupova KURIYEVA against Russia lodged on 3 May 2017 STATEMENT OF FACTS The applicant, Ms Layla Kuriyeva, is a Russian national who was born in 1955 and lives in Nazran, Ingushetia. She is represented before the Court by lawyers of the Memorial Human Rights Centre, an NGO practising in Moscow. The applicant is the mother of Mr Maxim (also known as Muslim) Kuriyev, who was born in 1989. The facts of the case, as submitted by the applicant, may be summarised as follows. A.     Killing of the applicant’s son and surrounding events 1.     Background information At the material time, the applicant lived with her son, Mr Kuriyev, in a mobile home in the village of Pliyevo (in the documents submitted also referred to as Pliyevskiy) in Ingushetia. The settlement was situated next to Nazran; the applicant’s mobile home measured about 3 by 6 metres and consisted of two rooms. It was situated on a plot of land where the applicant and her son were planning to build a house. From the documents submitted it can be seen that on an unspecified date prior to 22 March 2014 the Main Investigations Directorate of the Investigative Committee of the Russian Federation in the North Caucusus opened criminal case no. 13540060 to investigate an illegal armed group, Viayyat Galgayche, which was involved in assaults on law-enforcement officers, the preparation of terrorist attacks, and the unlawful possession of firearms, ammunition and explosives. The applicant’s son, Mr Kuriyev, was suspected of involvement in a number of crimes committed by the illegal armed group. According to the applicant, Mr Kuriyev had had neither a criminal record nor any official charges pending against him. He had not owned a gun and had not had it hidden in the mobile home. Given the small size of their mobile home, if he had stored a gun in it, she would have known about it. 2.     Search of the applicant’s home and the killing of Mr Kuriyev On 22 March 2014 the senior investigator in charge of criminal case no.   13540060, Mr A.A., decided to carry out a search of the applicant’s mobile home in Pliyevo with the aim of finding and seizing documents, firearms, mobile telephones, ammunition and other evidence. Early in the morning of 22 March 2014 a group of about a hundred servicemen in camouflage uniforms and balaclavas arrived in several vehicles and cordoned off the applicant’s mobile home and several other houses in the vicinity. Between 4 a.m. and 5 a.m. the servicemen asked the applicant and her son through a loudspeaker to come outside. When the applicant and her son came out, there were about twenty to thirty servicemen in the courtyard and around it and a number of servicemen on the roof of the neighbouring house. After the Kuriyevs left the mobile home, the servicemen went inside, having conducted a body search of Mr Kuriyev. They neither submitted a search warrant nor explained the reasons for their actions. The applicant and her son were waiting outside their home for the search to finish. In about ten to fifteen minutes the servicemen asked Mr Kuriyev to go inside the mobile home to answer questions. The applicant remained outside, about 10 metres from the mobile home. She did not hear any noise coming from it. A number of the applicant’s neighbours, including Ms Kh.P. and Mr M.P., and other local residents gathered across the street from the mobile home and observed events. At about 6.30 a.m. two servicemen demanded that the applicant go with them to the Centre for Counter-Extremism – a unit of the Ingushetia Ministry of the Interior (“the CCE”) – in Nazran for questioning. The applicant refused to go without her son, but then agreed under the threat of physical force. At the CCE the applicant provided written replies to questions concerning her son’s job, social circle and habits. She was given no information concerning either the reasons for the search of her home or the questioning. Immediately after the questioning, at about 8.30 a.m. on 22 March 2014, the applicant returned home by taxi. The mobile home had been surrounded by the police and she was not allowed to enter. At about 9 a.m. the applicant saw an ambulance arrive, and two or three minutes later a big black plastic body bag was carried out of her mobile home. She realised that her son’s body was in it, despite the claims of her neighbours, who had remained close to the mobile home, that they had not heard any gunshots. Shortly thereafter, the police left and the applicant immediately went to the morgue at the Ingushetia Clinical Hospital. The officers who brought the body did not allow her to see it and told her to wait until their superiors gave permission. Then the applicant went to the Pliyevo village administration, where a meeting of local residents had gathered to discuss the killings of the applicant’s son and another local resident, Mr B. Dyshnoyev (see below), who had resided nearby, during the special operation. At about 4 p.m. the applicant returned to her home and was allowed to go inside. There, next to the entrance, she found a large bloodstain, measuring about 60 by 60 centimetres; a small piece of roof had been cut out and taken away. A number of items of furniture were broken and some personal items (including mobile telephones and an iPad) and valuables (such as jewellery) were missing. After spending only several minutes in the mobile home, the applicant went to the morgue. In the evening, she received her son’s body and buried it later the same day in Nazran. According to the applicant, shortly after the search of her house on 22   March 2014 the authorities also searched the house of a fellow villager, Mr   B. Dyshnoyev, who was killed during the search, allegedly, for attacking one of the police officers. 3.     Steps taken by the authorities within the framework of the pre ‑ investigation inquiry into the killing On 22 March 2014 investigators from the Main Investigations Directorate of the Investigative Committee of the Russian Federation in the North Caucasus (“the federal investigators”) examined Mr Kuriyev’s corpse. The examination identified a number of perforating wounds on the body. On 22 March 2014 the crime scene was examined. A number of pieces of evidence were collected. On 22 March 2014 the federal investigators ordered a forensic examination of Mr Kuriyev’s body. On 9 April 2014 the Bureau of Expert Evaluations of the Ingushetia Ministry of the Interior issued its report, according to which the applicant’s son had sustained four gunshot wounds, which had caused his death: one perforating wound to the left lung, two perforating wounds to the heart and liver, and one perforating wound to the left temple. On 31 March 2014 applicant lodged a complaint with the Nazran inter-district investigations department of the Ingushetia Investigations Committee regarding her son’s killing by the police officers and alleging unlawful search. On 1 April 2014 investigators from the investigations department of military unit no. 507 (“the military investigators”) took the applicant’s statement about the incident. Her submission was similar to the account given to the Court. She stressed that the circumstances of her son’s death were unclear, that the use of deadly force against him had been unnecessary and that the unidentified perpetrators of his killing should be prosecuted. On 11 April 2014 the military investigators took a statement from the deputy head of the Ingushetia department of the Federal Security Service (“the FSB”), Lieutenant-Colonel A.Sh., who had been in charge of the special operation on 22   March 2014. He confirmed that a special operation had been conducted in Pliyevo early in the morning of 22 March 2014 but denied that a search had been conducted in the applicant’s home, as under the domestic law, such a step could not be taken at 5 a.m. The officer did not provide pertinent information concerning either the officers who had been in the mobile home and their actions or the circumstances of the use of lethal force against Mr Kuriyev. On 2 April 2014 the applicant complained of the search and her son’s killing to the Ingushetia Prosecutor. In reply, she was informed that her complaint had been forwarded to the investigations department of military unit no. 68799 for examination. On 3 April 2014 the military investigators took a statement from a forensic expert, Mr Kh.M., who stated that he had participated in the examination of the crime scene at the applicant’s mobile home at 8 a.m. on 22 March 2014. He stated, in particular, that next to the body of Mr   Kuriyev, the experts had found and collected or noted, among other things, a Makarov pistol, three bullet holes in the ceiling next to the window, three spent 9 mm cartridges and two 9 mm bullets. During the subsequent transportation of Mr Kuriyev’s body to the morgue, one 9 mm bullet had fallen out of it. On 6 April 2014 the military investigators questioned the investigator in criminal case no. 13540060, Mr Yu. Ch., who stated, among other things, that he had not been responsible for the search of the applicant’s mobile home and that he had not drafted the search decision on 22 March 2014. In addition, he did not know whether this decision had been shown to the applicant or her son before the search. He had been responsible for the examination of the crime scene. He did not know exactly who had conducted the search, other than that it had been officers from the Ingushetia department of the FSB and one local police officer. On 17 July 2014 the applicant lodged a complaint with the investigations department of military unit no. 68799 about her son’s killing during the search, requesting that a pre-investigation inquiry be undertaken. On 30 October 2014 the military investigators forwarded the applicant’s complaint request that a pre-investigation inquiry be undertaken to the investigations department of military unit no. 68799, as the officers who had carried out the special operation at the applicant’s household had been from the Ingushetia department of the FSB. On an unspecified date, the investigations department of military unit no. 68799 returned the complaint to the military investigators. On 15 December 2014 the military investigators forwarded the applicant’s request for an inquiry to be undertaken to the investigations department of military unit no. 507. On 17 December 2014 the latter returned the complaint to the military investigators. On 13 July 2015 the military investigators again forwarded the applicant’s request for an inquiry to the military investigators. On 22 July 2015 the military investigators requested that the Ingushetia department of the FSB provide information regarding the number and the identities of the officers who had participated in the search of the mobile home and who had been present during Mr   Kuriyev’s killing and that they be allowed to question those officers about the incident. In reply, the Ingushetia department of the FSB stated that the request should have been sent to the head of the Russian department of the FSB by the head of the Investigative Committee of the Russian Federation personally and refused to provide any information. On 11 August 2015 the military investigators refused to initiate a criminal investigation into the actions of Lieutenant-Colonel A.Sh. for lack of corpus delicti . On 3 March 2016 the head of the investigations department of military unit no. 507 overruled the above-mentioned refusal and ordered that a new pre-investigation inquiry into the incident be carried out. On 12 March 2016 the military investigators again refused to initiate a criminal investigation into the actions of Lieutenant-Colonel A.Sh. on the same grounds – that is to say for lack of corpus delicti . On 28 March 2016 the head of the investigations department of military unit no. 507 again overruled the refusal and ordered that an additional pre-investigation inquiry into the incident be carried out. On 6 April 2016 the military investigators again refused to initiate a criminal investigation into the complaint for lack of corpus delicti in respect of the actions of A.Sh. The decision referred to the statements of the following officers: Lieutenant-Colonel A.Sh,; Mr V.G. and Mr Yu.Ch., investigators of the Nazran inter-district investigations department of the Ingushetia Investigations Committee who had participated in the cordoning off the area around the applicant’s mobile home and the crime scene examination respectively; Mr T.Ts. and Kh.M., the forensic experts who had participated in the crime scene examination; Mr D.T. and S.M., the FSB officers who had participated in the search of the applicant’s mobile home and who had been present during the shooting of Mr Kuriyev; and the applicant’s neighbour, Mr A.P., who had witnessed the events from across the street. The decision also referred to the case-file materials in respect of criminal case no. 13540060 and the conclusions of the commissioned expert examinations. The refusal contained no information concerning either the number or the identities of the officers who had participated in the search and had been present during the killing of the applicant’s son. On 28 June 2016 the head of the investigations department of military unit no. 507 overruled the above-mentioned refusal, stating that the decision had been premature and that “a number of additional inquiry steps” were needed. On 4 July 2016 the military investigators again requested that (i) the Ingushetia department of the FSB provide information regarding the number and the identities of the officers who had participated in the search of the applicant’s mobile home and had been present during her son’s killing and (ii) for those officers to be questioned about the incident. On 6 July 2016 the Ingushetia department of the FSB replied that the request, like the previous one of 22 July 2015, should have been sent to the head of the Russian department of the FSB by the head of the Investigative Committee of the Russian Federation personally, and again refused to provide any information. On 7 July 2016 the military investigators again refused to initiate a criminal investigation into the complaint for lack of corpus delicti , referring to the same grounds as those referred to in the refusal of 6 April 2016. 4.     Steps taken within the framework of criminal case no. 14500013 On 25 March 2014 the Main Investigations Directorate of the Investigative Committee of the Russian Federation in the North Caucasus opened criminal case no. 14500013 into the “attempted murder of Captain D.T. of the Ingushetia department of the FSB by an unidentified person, ... who at 5.30 a.m. on 22 March 2014 fired three gunshots at [him].” On the same date, 25 March 2014 Captain D.T. was granted victim status in the criminal case and was questioned. He stated, among other things, that he had participated in the search of the applicant’s mobile home. He had conducted the search with “several officers of a special unit”. During the procedure, at about 5.50 a.m. on 22 March 2014, Mr Kuriyev, who had been in the mobile home while the applicant had been outside, had been asked to show his passport. He had gone to a dresser, squatted and taken out an object which had turned out to be a Makarov pistol. Mr Kuriyev had fired three shots at him and had been shot dead on the spot by the other officers. The three bullets that had missed him had made three holes in the ceiling. Captain D.T. stated that he could not say which of the officers present during the incident had opened fire on Mr Kuriyev, but that it was not him. 5.     Steps taken within the framework of criminal case no. 13540060 On 28 April 2014 the Bureau of Expert Evaluations of the Ingushetia Ministry of the Interior (“the Bureau of Expert Evaluations “) issued a report according to which the Makarov pistol collected from the crime scene had been used to fire shots. On 26 May 2014 the Bureau of Expert Evaluations examined, among other things, the damage caused by the three gunshots in the applicant’s mobile home. According to their conclusions, the mobile home’s ceiling had been most probably damaged by three gunshots fired from a pistol of 9   mm calibre. On 3 June 2014 the experts of the Bureau of Expert Evaluations issued a report which stated, among other things, that it was impossible to identify the traces of sweat on the Makarov pistol collected at the crime scene as those of Mr Kuriyev for lack of a DNA sample. On 17 June 2014 the Bureau of Expert Evaluations issued another report according to which the swabs from the face and hands of Mr Kuriyev’s body had contained traces of gunshot residue. On 29 July 2016 the applicant’s lawyer, Mr M.G., requested that the federal investigators provide him with a copy of the documents recording the discovery of Mr Kuriyev’s body. On 5   August 2016 the federal investigators refused his request, stating that the investigation was being carried out by the military investigators. 6.     The applicant’s appeals against the refusal to initiate a criminal investigation On 28 June 2016 the Nalchik Garrison Military Court refused to examine the applicant’s appeal against the refusal of 6 April 2016 to initiate a criminal investigation. The court stated that in light of the fact that on 28   June 2016 the refusal had been overruled and the military investigators had been ordered to resume the proceedings, there was no need for it to examine the appeal. On an unspecified date in July or August 2016 the applicant appealed to the Nalchik Garrison Court against the military investigators’ refusal on 7   July 2016 to initiate an investigation into her son’s death, and requested that a new pre-investigation inquiry be carried out. In her appeal, she referred to a number of shortcomings (which had served as the basis for the refusal) in the inquiry and the military investigators’ failure to clarify a number of circumstances. In particular, she pointed to the failure to question the local residents who had witnessed the special operation and the law ‑ enforcement officers who had participated in it, as well as the officers who had opened fire on Mr   Kuriyev. According to the applicant, her son had not had a firearm and had not resisted the officers. She further stressed that the military investigators had failed to find out why the search had been conducted without an attesting witness; why she had been taken away for questioning during the period in which the search had been carried out in her home; how Mr Kuriyev had allegedly managed to fire at least three shots in a room measuring less than 20 sq. m without wounding any of the officers; why all of the officers present during the shooting had not been identified and questioned, and why they had not tried to use non-lethal force against her son; and why her son’s body had contained two entrance gunshot wounds to the back, even though during the shooting he had allegedly faced the officers. On 12 September 2016 the Nalchik Garrison Court rejected the applicant’s appeal, ruling that all of the necessary steps had been taken by the military investigators. The decision stated, in particular: “... as for the failure to establish the identities of the FSB officers who had participated in the counter-terrorist operation on 22 March 2014 and to obtain their statements, as well as the failure to obtain secret information on the identities of the law-enforcement agents who had shot Mr Kuriyev, these [factors] had no bearing on the essence of the impugned decision [to refuse to open a criminal case] ...” The applicant appealed against the above-mentioned decision to the Criminal Cases Chamber of the Military Court of the North Caucasus Circuit. She pointed out the steps which had not been taken by the military investigators and stressed that no fingerprints had been taken from the gun found next to her son, from which he had allegedly had opened fire on the officers. Referring to the case-law in respect of Article 2 of the Convention, the applicant stated that the pre-investigation inquiry into her son’s death had fallen short of the requirements of an effective investigation into the use of lethal force. On 3 November 2016 the North Caucasus Circuit Military Court rejected her appeal, ruling that the refusal had been duly substantiated. B.     Relevant domestic law Dalakov v. Russia (no. 35152/09, §§ 51-53, 16 February 2016). COMPLAINTS The applicant complains under Article 2 of the Convention that her son, Mr Muslim Kuriyev, was unlawfully killed by State agents as a result of disproportionate use of lethal force and that the authorities failed to carry out an effective investigation into the matter. The applicant further complains under Article 8 of the Convention of the unlawful search of her home. Under Article 13 of the Convention, the applicant alleges that she had no effective domestic remedies against the alleged violation of Articles 2 of the Convention. QUESTIONS TO THE PARTIES 1.     Has the right to life, as guaranteed by Article 2 of the Convention, been violated in respect of the applicant’s son, Mr Maxim (also known as Muslim) Kuriyev in the present case? In particular, did Mr Kuriyev’s death result from a use of force which was absolutely necessary for the purposes of paragraph 2 (a) and/or (b) of this Article?   2.     Having regard to the procedural protection of the right to life under Article 2 of the Convention (see Salman v. Turkey [GC], no. 21986/93, §   104, ECHR 2000 VII, and Dalakov v. Russia , no. 35152/09, § 78, 16   February 2016), have the national authorities conducted an effective investigation into the matter, sufficient to meet their obligations under this Convention provision?   3.     Has there been an interference with the applicant’s right to respect for her home, within the meaning of Article 8 § 1 of the Convention, as a result of the search carried out on 22 March 2014? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?   4.     Has the applicant had at his disposal effective remedies in respect of the above-mentioned alleged violations of Article 2 of the Convention, as required by Article 13 of the Convention?   5.     The Government are invited to provide an entire copy of the case file reflecting the pre-investigation inquiry into the death of Mr Kuriyev, as well as any other case file(s) opened in connection with his death.