Communicated on 5 July 2019

THIRD SECTION

Application no. 7434/18 Akhmed GORDANOV against Russia lodged on 2 February 2018

STATEMENT OF FACTS

The applicant, Mr Akhmed Gordanov (also spelt as Gardanov), is a Russian national, who was born in 1952 and lives in Pliyevo (also spelt as Plievskiy), Ingushetia. He is represented before the Court by lawyers from Stichting Justice Initiative. The applicant is the father of Mr Salman Gordanov, who was born in 1989, and Mr Dzhuneyd (also spelt as Zhuneyd) Gordanov, who was born in 1992. Both of the applicant ’ s sons died in 2012.

The facts of the case, as submitted by the applicant, may be summarised as follows.

A. Events of 3 April 2012 and the investigation thereof

1. Events of 3 April 2012

On 3 April 2012 the applicant ’ s sons Salman and Dzhuneyd Gordanov and three of their fellow villagers Mr S.M., Mr SH.G. and the fifty-seven year-old Ms Z.V. were driving home to Pliyevo from work at local brick plant in Nazran. Salman Gordanov ’ s VAZ-2107 car had the registration number Г 395 ВО . Ms Z.V. was riding in the front passenger seat of the vehicle.

At about 8.10 p.m. next to house no. 60 in Oskanova Street in Nazran their car was blocked by two cars of the Federal Security Service (the FSB) without registration numbers. Without a warning, the FSB officers from those cars opened gunfire on Salman Gordanov ’ s car. After that, having heard the moaning of the persons in the car, the FSB agents again opened fire and the moaning stopped.

Then, about an hour later, the vehicle with the five passengers in it was towed away for mine cleaning. During the towing, the body of Salman Gordanov fell out of the car.

According to the authorities, Salman Gordanov and Ms Z.V. who had been on the back seat of the car, had explosives belts around their bodies. Therefore, the vehicle with the five passengers had to be towed away for mine cleaning to the middle of the street, where it was blown up. According to the subsequent forensic examination of the bodies in the car, all of its passengers at the time of the explosion were alive.

According to the applicant, his sons Salman and Dzhuneyd Gordanov neither had criminal record nor were suspected of the involvement in illegal armed groups or other criminal activities.

2. The official investigation into the actions of the FSB officers

(a) The first refusal to open a criminal case

On 26 April 2012 507 th military investigations department of the military prosecutor ’ s office of military unit no. 04062 (the military investigators) initiated an inquiry into the applicant ’ s complaint of his son ’ s unlawful killing by the FSB officers.

On 5 May 2012 the military investigators refused to open a criminal case into the incident for the lack of corpus delicti in the actions of the FSB officers. The refusal referred to the similar statements of three FSB officers A. P., A.B. and A.N. involved in the special operation. According to them, on 3 April 2012 they had received operational information that in a VAZ ‑ 2107 car with registration number Г 395 ВО with a group of persons involved in illegal armed groups would driving in Nazran. At about 8 p.m. they had spotted the suspects ’ car in Oskanova Street and requested the driver to stop the car and everyone inside to get out. In response, automatic gunfire had been opened at the officers from the front seat; as a result of the return fire, the persons in the car had been killed on the spot. After that the officers had approached the car and seen that the front seat passenger had had Kalashnikov machineguns in his hands and that the driver, as well as a woman on the back seat had had the explosives belt. A round object wrapped in black plastic, resembling a self-made explosive device, had been found between the driver and the front passenger. It had been analysed and turned out to be the highly explosive power substance of triacetate triperoxide. Therefore, a group of bomb disposal experts from the Ingushetia FSB had been called to the scene and confirmed that the object had been an explosives device. To avoid damage, the suspects ’ car had been pulled to the middle of the street and all persons around had been evacuated to a safe distance from it. After that, the car had been blown up.

(b) The second refusal to open a criminal case

On 16 May 2012 the military prosecutor of military unit no. 04062 overruled the above refusal as premature and unsubstantiated and ordered that additional steps were taken. In particular, the military investigators were to request information concerning Salman and Dzhuneyd Gordanov and the other three passengers ’ alleged involvement in illegal activities; the bomb disposal experts who had participated in blowing up the car were to be questioned, as well as local residents who had witnessed the shooting and the blowing up; there was no information in the inquiry file confirming that the car examined by the military investigators as the one in which the FSB officers had driven around at the time of the incident, had in fact been the actual car used by the FSB officers, as the file had no information on its official registration number. Furthermore, samples of the explosives in the suspects ’ car found by the officers, had not been taken for an expert examination and such an examination had not been commissioned. The cause of death of the five suspects was not established; copies of materials from criminal case no. 12560021 opened against the suspects were illegible and the reasons for their inclusion into the inquiry file were unknown.

On 30 May 2012 the military investigators interviewed a bomb disposal expert Lieutenant Colonel A.E. whose brief statement was similar to those of his three FSB colleagues given on 5 May 2012. In addition, he stated that he had been the head of the bomb disposal group and that when his team had arrived at the scene, he had seen the suspects ’ car which had had numerous bullet holes. Then the object in the black bag between the driven and the passenger had been analysed and it had turned out to be the explosive substance of triacetate triperoxide. Given the danger the explosives represented, it had been decided to blow the car up on the spot, having evacuated the residents to a safe distance, by way of controlled explosion. During the car examination, he had not taken samples from either the explosives belts or the explosive in the black bag.

On 30 May 2012 the military investigators again interviewed the FSB officer A. P. who stated that he had been the head of the group on 3 April 2012 and reiterated his statement of 5 May 2012.

On 31 May 2012 the military investigators again refused to open a criminal case into the incident. The text of the decision reiterated the one of 5 May 2012. In addition, it referred to the examination of the FSB car, which had been carried out on an unspecified date after the incident. According to the document, the car, which had registration plates only during special operations, had had one bullet hole in the right back window and it had been made as a result of gunfire opened from Salman Gordanov ’ s car at the FSB officers. The decision also contained information, that the return gunfire at the suspects ’ car had b een opened by officers A.B. and A.N. from their machineguns and that due to the explosives found in the car, it had been towed away by an armoured UAZ vehicle to the middle of the street and then blown up. The decision also referred to the results of forensic examination carried out on 5 April 2012 on two bodies from the car. According to its findings, the injuries obtained as the result of the blowing up had caused Dzhuneyd Gordanov ’ s death as well as that of Ms Z.V.; the cause of Salman Gordanov ’ s death and of the other two men had been impossible to establish; samples of their tissues had been sent for further examination to a genetic examinations laboratory in Rostov-on-Don.

(c) The third refusal to open a criminal case and the applicant ’ s appeal

On 22 August 2012 the deputy military prosecutor of military unit no. 04062 overruled the above refusal as premature and unsubstantiated and ordered additional steps to be taken. In particular, the local residents who had witnessed the incident and the blowing-up of the car had not been identified and questioned; it had not been confirmed that the vehicle examined by the military investigators had in fact been used by the FSB officers during the operation on 3 April 2012; the explosives, allegedly found in the suspects ’ car, had not been sampled for the expert examination.

On 6 September 2012 the military investigators again refused to open a criminal case into the incident referring to the same materials as in previous refusals. In addition, they referred to the statement obtained from the FSB officer V.N., who had participated in the operation along with the three other colleagues, but had not previously been interviewed by the investigation. According to him, on 3 April 2012 he had put on the uniform of the traffic police officer and waived with the traffic police baton for the suspects ’ car to stop. The latter had not obeyed and the passenger in the front seat had opened gunfire at him and his colleagues. Despite their warnings that they had been the FSB officers, the suspects had continued to fire their guns at the officers ’ car. The officers had had to open fire at the suspects ’ car as a result of which the five persons inside of it had been shot and died on the spot.

On 13 December 2012 the applicant appealed against the above refusal to the Nalchik Military Garrison Court. He stressed that the refusal had been based only on the statements of the implicated officers and requested that a fully-fledged investigation be carried out into the circumstances of the death of his sons. He stated, among other things, that according to statements of local residents, given to the investigation in the criminal case (see below), including statements of Mr U.B., Mr I.E., Mr A.A., Ms A.Kh. and Mr T.E., all the five persons, including the applicant ’ s sons, had been riding home to Pliyevo after work in the brick plant in Salman Gordanov ’ s car. The only woman among the passengers, Ms Z.V., had been riding in the front passenger seat; none of the five persons riding the car had been armed. The car had driven down the Oskanova Street in Nazran when, according to the witnesses, two cars with the FSB officers had pulled up next to it and without giving any warnings, had opened gunfire at the vehicle. After Salman Gordanov ’ s car had stopped, the attackers had checked it and then, in order to silence the moaning of the wounded persons inside, had opened gunfire at it again. Then, about an hour later, with the persons still alive in it, Salman Gordanov ’ s car had been towed to another side of the street and blown up. As a result, all of its passengers had been killed and their bodies blown up to cover up the traces of the execution. In the evening of the same day, the Ingushetia branch of the National Counterterrorism Committee ( НАК ) had published a statement according to which five men liquidated during the special operation had been members of illegal armed groups. However, on the following day, after it had become clear that one of the five alleged suspects had been a woman, additional information had appeared according to which Ms Z.V. had allegedly worn the explosives belt. Referring to the conclusions of the forensic examinations of the bodies of Ms Z.V. and Dzhuneyd Gordanov, their death had been caused by the explosion, which meant that they had been wounded by the FSB officers, had been alive and then killed by the explosion.

On 21 December 2012 the Nalchik Military Garrison Court rejected the applicant ’ s complaint without examination as on 20 December 2012 the refusal of 6 September 2012 had been overruled and further inquiry had been ordered by the military investigators ’ superiors.

(d) The fourth refusal to open a criminal case and the applicant ’ s appeal

On 29 December 2012 the military investigators again refused to open a criminal case into the actions of the FSB officers on 3 April 2012. The decision referred to the same grounds as the one of 6 June 2012.

On 10 February 2013 the applicant appealed against the above refusal to the Nalchik Military Garrison Court. He referred to the same defects of the inquiry as in his appeal of 13 December 2012. In addition, he stated that the statements of the FSB officers had been inconsistent and untruthful as, amongst other things, Salman Gordanov had not been wanted by the authorities and had always resided at his permanent address in Pliyevo. There had been no requests for the car to stop, as the state of the vehicle showed that the gunfire had been opened at the car while it had been moving; the front passenger seat had been occupied by Ms Z.V. who had not been armed and could not have opened gunfire as alleged; according to the forensic examination, at least two of the persons riding the car, Ms Z.V. and Dzhuneyd Gordanov had not been killed by the gunfire, but by the explosion, which had been carried out by the agents in an hour after the shooting. The applicant further stated that the investigators had been protracting the inquiry and did not want to have the crime resolved.

On 19 March 2013 the Nalchik Military Garrison Court rejected the applicant ’ s complaint without examination as on 15 March 2013 the refusal of 29 December 2012 had been overruled and further inquiry had been ordered by the military investigators ’ superiors.

(e) The fifth refusal to open a criminal case

On 25 March 2013 the military investigators again refused to open a criminal case into the actions of the FSB officers referring to the same grounds. The applicant was not informed of that decision.

On 24 April 2013 the head of the military investigating department of the Southern Federal Circuit overruled the above refusal having stated that the statements of the FSB officers given to the inquiry had been contradictory. In particular, the FSB officers had stated that the suspects in Salman Gordanov ’ s car had been killed and then their vehicle had been towed away and blown up. However, the forensic examinations had established that Dzhuneyd Gordanov and Ms Z.V. had died from an explosives ’ trauma, which contradicted the officers ’ version of their death before the explosion. In addition, the inquiry had not clarified the cause of the death of the other three passengers of the car, including Salman Gordanov. The examination of the FSB vehicle which had established the bullet hole, had failed to clarify the type of weapon by which it could have been made. Therefore, the refusal was premature and unsubstantiated and a new inquiry was to be carried out into the circumstances of the incident. The applicant was not informed of that decision.

(f) The sixth refusal to open a criminal case

On 15 May 2013 the military investigators again refused to open a criminal case into the actions of the FSB officers referring to the same grounds. The applicant was not informed thereof.

On 21 May 2013 the deputy head of the 507 th military investigating department overruled the above refusal as unlawful referring to the same grounds as the ones mentioned in the decision of 24 April 2013.

(g) The seventh refusal to open a criminal case

On 30 May 2013 the military investigators again refused to open a criminal case into the actions of the FSB officers referring to the same grounds as in previous refusals. The applicant was not informed thereof.

On 5 June 2013 the military prosecutor of military unit no. 04062 overruled the above refusal as unlawful, having stated, as follows:

“... the investigator failed to identify and question the bomb disposal experts from the Ingushetia FSB who had participated in the operation ... the statements given by the operational FSB officers who had participated in the operation are superficial as they neither reflect the true picture of what happened, nor explain the necessity of blowing up the car with the persons in it.

Along with that, the investigators had not obtained the information justifying the [intended] detention of those [five] persons, including Ms Z.V. .. .

In addition, the investigators failed to include into the case file the expert examination of either the firearms or the ammunition collected at the scene; moreover, no examination of the gunshot residue on the bodies or belongings of those [five] persons had been commissioned.

It is therefore necessary to

- identify and question in detail the bomb disposal experts from the Ingushetia FSB who had participated in the operation concerning its conduct and the necessity to blow up the car;

- obtain the results of the examinations of the firearms and ammunition collected at the scene and find out whether any gunshot residue had been present on the bodies of the dead persons and their personal belongings;

- obtain from the relevant power structures the information which had served as the basis for the decision to detain those [five] persons, including Ms Z.V...”

On 20 June 2013 the military investigators again interviewed a bomb disposal experts Lieutenant Colonel A.E. whose statement differentiated from the one given on 30 May 2012. The officer stated, in particular, that after he had smelled the substance in the suspects ’ car and established that it had been triacetate triperoxide, it had been decided to tow the car away from the nearby house. During the towing, the driver ’ s body (Salman Gordanov) had fallen out. The other bodies had remained in the car. Then the car had been blown up by destructor ( при помощи разрушителя ). Lieutenant Colonel did not remember how exactly the destruction had been carried out: by a switch or by a cord. He further explained that his previous statement where he had mentioned that the car had been blown up by controlled explosion ( контролируемый взрыв ) had been incorrect and it must have been wrongly recorded by the investigators.

(h) The eighth refusal to open a criminal case and the applicant ’ s appeal

On 20 June 2013 the military investigators again refused to open a criminal case into the actions of the FSB officers referring to the same grounds.

On 23 October 2013 the applicant appealed against the above refusal to the Nalchik Military Garrison Court. He stated, in particular, that according to numerous statements of local residents given to the relatives of the five killed persons, those persons, including his sons, had remained alive after the shooting and a number of witnesses had heard them moaning. Then, the FSB officer had subjected the car to new shooting and the wounded had been silenced. Those details had been confirmed by the forensic examination of the bodies of Dzhuneyd Gordanov and Ms Z.V. The applicant again pointed out that the refusal to initiate a fully-fledged criminal investigation had been based on the evidence from the implicated officers whose statements had been inconsistent and untruthful.

On 13 November 2013 the military prosecutor of military unit no. 04062 overruled the above refusal as unlawful on the grounds similar to those of his decision of 5 June 2013.

On 15 November 2013 the Nalchik Military Garrison Court rejected the applicant ’ s complaint without examination as on 13 November 2013 the refusal had been overruled and further inquiry had been ordered.

(i) The ninth refusal to open a criminal case

On 26 November 2013 the military investigators again refused to open a criminal case into the actions of the FSB officers referring to the same grounds as the ones in their previous refusals. On 17 January 2014 it was overruled by their superiors as unlawful.

On 13 February 2014 the military investigators again interviewed bomb disposal expert Lieutenant Colonel A.E. who provided a brief statement and explained that he had been the only officer who had examined Salman Gordanov ’ s car. At the time, he could not assess whether the persons therein had been alive; it had been impossible to take them out due to the explosives inside. In order to save the people inside it had been decided to clear the car of explosives. However, “during the clearing of the explosives, owing to their instability and the fact that they had been self-made, they had blown themselves up”.

(j) The tenth refusal to open a criminal case and the applicant ’ s appeal

On 14 February 2014 the military investigators again refused to open a criminal case into the actions of the FSB officers referring to the same grounds.

On 15 December 2014 the applicant appealed against the above refusal to the Nalchik Military Garrison Court, stressing, in particular, that Salman Gordanov ’ s car with its passengers had been blown up to cover up their murder by the FSB officers.

On 6 February 2015 the Nalchik Military Garrison Court rejected the applicant ’ s complaint without examination as on 6 February 2015 the above refusal had been overruled and further inquiry had been ordered.

(k) The eleventh and twelfth refusals to open a criminal case

On 16 February 2015 the military investigators again refused to open a criminal case into the actions of the FSB officers. The applicant was not informed thereof.

On an unspecified date in 2017 the applicant appealed against the above refusal to the Nalchik Military Garrison Court.

On 3 August 2017, the Nalchik Military Garrison Court rejected the applicant ’ s complaint without examination as on 3 August 2017 the above refusal had been overruled and further inquiry had been ordered.

On 4 August 2017 the military investigators again refused to open a criminal case into the actions of the FSB officers.

3. Investigation into the actions of Salman and Dzhuneyd Gordanov

On 3 April 2012 the Ingushetia Investigating Committee (the investigators) opened criminal case no. 12560021 into the incident of 3 April 2012 under Article 222 of the Criminal Code (unlawful possession of firearms).

On 10 May 2012 the Ingushetia Ministry of the Interior (the Ingushetia police) informed the investigators from the Ingushetia Investigations Department that no compromising information on the five persons, including the applicant ’ s sons, was available.

On 25 July 2012 the investigators replied to a human rights NGO, which had requested information on behalf of the applicant, that an inquiry had been initiated by the military investigators in connection with the death of Salman and Dzhuneyd Gordanov as a result of the incident of 3 April 2012.

From the documents submitted it transpires that the investigation of the criminal case was terminated on several occasions and each time that decision was overruled due to the applicant ’ s complaints to domestic courts. In his complaint the applicant insisted on thorough and comprehensive investigation of the circumstances of his sons ’ death on 3 April 2012 and the actions of the implicated FSB officers.

On 29 September 2016 the deputy head of the Ingushetia Investigating Committee overruled yet another decision (this time of 10 June 2016) to terminate the investigation in the criminal case due to the death of the suspect. He stated that the decision had been premature and unlawful and ordered that the investigation of the criminal case be reopened. In particular, he ordered that the investigators were to:

“... eliminate the noted numerous shortcomings and deficiencies, take the necessary steps to ensure full and objective investigation and to establish all of the circumstances surrounding the crime ...”

From the documents submitted it is unclear when the investigation of the criminal case was reopened.

B. Relevant domestic law and practice

For a summary of the relevant domestic regulations, see Dalakov v. Russia , no. 35152/09 , §§ 51-53, 16 February 2016.

COMPLAINTS

The applicant complains under Article 2 of the Convention that his sons Salman and Dzhuneyd Gordanov were killed as a result of unjustified use of lethal force by State agents and that the authorities failed to investigate the matter.

QUESTIONS TO THE PARTIES

1. Has the right to life of the applicant ’ s sons Mr Salman Gordanov and Mr Dzhuneyd Gordanov ensured by Article 2 of the Convention, been violated in the present cases? In particular, did their 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. Did the authorities comply with their positive obligation to protect the right to life of Mr Salman Gordanov and Mr Dzhuneyd Gordanov as safeguarded by Article 2 of the Convention?

3. 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 death of Mr Salman Gordanov and Mr Dzhuneyd Gordanov, sufficient to meet their obligations under this Convention provision?

4. The Government are invited to provide:

- a copy of the entire contents of the case files of the pre-investigation inquiries carried out into the circumstances of the death of Mr Salman Gordanov and Mr Dzhuneyd Gordanov, including a copy of all refusals to initiate a criminal investigation and a copy of all domestic courts ’ decisions taken on the appeals lodged against those procedural decisions;

- copy of the entire contents of the criminal case files opened in connection with the death of Mr Salman Gordanov and Mr Dzhuneyd Gordanov as well as of the criminal case no. 12560021.

The Government are also invited to include a list of steps in the chronological order reflecting actions taken by the authorities in each of the respective pre- investigation inquiries and/or the criminal cases.