Communicated on 24 September 2018

THIRD SECTION

Application no. 22470/18 Kuri SHIRVANIYEV against Russia lodged on 10 May 2018

STATEMENT OF FACTS

The applicant, Mr Kuri Shirvaniyev , is a Russian national, who was born in 1969 and lives in Selmentauzen , the Vedeno district in the Chechen Republic. He is represented before the Court by lawyers of Human Rights Centre Memorial.

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

A. The circumstances of the case

1. Wounding of the applicant and its consequences for his health

At about 9.40 a.m. on 31 May 2016 the applicant, his son Movsur Shirvaniyev and Mr A.Kh . went from their village of Selmentauzen to the pasture where their cattle were grazing. The applicant had an officially registered double-barrelled gun, food and gasoline for the house on the pasture. According to the applicant, there was neither special regime of counterterrorist operation in force in the area at the time, nor were he or other local residents informed of such an operation taking place in the vicinity of their village.

In about 2 km from the village, from a distance of 200-300 metres, the men saw a serviceman in military uniform with an automatic gun who was not showing signals or shouting any warnings. The three villagers kept walking when the serviceman suddenly opened gunfire at them. The applicant, his son and Mr A.Kh . fell on the ground. One bullet hit the applicant in the stomach.

Then a group of servicemen ordered the three men to get up and approach them with hands up. The applicant was wounded, stayed on the ground, whereas his son and Mr A.Kh . followed the order. The applicant ’ s son shouted that his father had been wounded. In reply, one of the servicemen had ordered him to shut up and hit him in the head with the butt of his automatic gun. After that the servicemen called for a helicopter, which took the applicant to the 357 th medical battalion of military unit no. 6788 in Grozny (the military hospital).

Then the servicemen took the applicant ’ s son and Mr A.Kh.to the military unit stationed in the vicinity of Selmentauzen and released a couple of hours later. No charges were brought up against either the applicant, his son or Mr A.Kh .

As a result of the gunshot wound, the applicant received grave injuries to the abdomen. On 31 May 2016 he was hospitalised and operated on at the military hospital. On 2 June 2016 he was transferred to intensive care unit at the Republican Clinical Hospital in Grozny (the hospital), where he stayed until 11 July 2016 and underwent five more surgeries on the bowels. Between 11 and 20 July 2016 he stayed at the multi-trauma unit. On 20 July 2016 he was discharged.

Between 28 November and 8 December 2016 the applicant was hospitalised again due to complications of the wound. Then on 16 January 2017 he was taken to the Republican Emergency Care Hospital in the neighbouring Republic of North Ossetia-Alania, where on 19 January 2017 he was operated on again and discharged on 24 January 2017. On 2 February 2017, the applicant was hospitalised again due to osteomyelitis which occurred as a result of the gunshot wound.

On 3 February 2017, the applicant was officially classified as suffering from the 2 nd degree of disability.

2. Attempts to initiate a criminal investigation into the shooting

On 1 June 2016 the applicant ’ s wife, Ms B.D., complained of the incident to the Vedeno military prosecutor ’ s office and then to a number of other law-enforcement agencies, including the Chief Military Prosecutor and the Investigative Committee. She stated that the servicemen had opened gunfire at her husband without any warning and heavily wounded him. She requested an investigation be initiated.

On 9 June 2016 the investigators from the 506 th military investigations department of the Investigative Committee in the Southern Military Circuit (the military investigators) commissioned the applicant ’ s forensic examination. The examination established that as a result of the gunshot wound he had sustained grave injuries.

On six occasions, that is on 1 July and then on 2 and 29 August, 13 October, 23 November and 26 December 2016 the military investigators refused to initiate a criminal investigation into the circumstances of the applicant ’ s wounding the lack of corpus delicti in the actions of the military servicemen.

On six occasions, that is on 4 July, 9 August, 12 September, 8 November and 7 December 2016 and then on 7 April 2017 the supervising authorities overruled the refusals as unlawful and unsubstantiated, and ordered that a new preliminary inquiry be carried out. According to the applicant, the military investigators did not inform him of the refusals and the decisions to overrule them in a timely manner.

On 16 August and 21 September 2016 and then on 17 January 2017 the applicant appealed the refusals of 2 and 29 August and 13 October 2016 respectively to the Grozny Military Garrison Court (the military court). On 19 August and 26 September 2016 and then 23 January 2017 the court left the applicant ’ s appeals without examination as the impugned refusals had already been overruled by the supervisors (see above).

On 28 April 2017 the investigators issued the last refusal to open a criminal case in connection with the applicant ’ s wounding on 31 May 2016 for the lack of corpus delicti . According to the decision, at the material time a counterterrorist operation had been in progress in the Vedeno district and local population, including the applicant, his son and Mr A.Kh . had been warned about it in advance. Military unit no. 6607 from the 27 th Siberian regional command of the internal troops carried out that operation. According to the servicemen involved in the incident, the applicant and his companions had not obeyed the warnings to stop and to put their hands up, instead they had started running away to the forest. Then, warrant officer A.S. had made several warning shots in the air, but the applicant and his companions had continued to run away. Then six servicemen that is, warrant officer A.S., Major A.L., Sergeants A.K. and M.K, Lieutenant A.B. and Captain A.K., had made between two and seven shots each in the direction of the applicant, his son and Mr A.Kh . As a result, the applicant received the gunshot wound to the stomach, causing damage to his health, which later had been classified as grave.

The decision was based on the statements of eight military officers involved in the incident, the forensic expert who examined the applicant ’ s wound, two police officers who had arrived at the scene of the incident, the district police officer S.B., according to whom, a fellow villager had passed on the warning of the counterterrorist operation to the applicant, his son and Mr A.Kh ., and a statement of a local resident Mr A.D. The decision also stated that according to the statements given by the applicant, his son and Mr A.Kh . to the investigators, the servicemen had opened gunfire without any warning.

The applicant appealed against the refusal of 28 April 2017 to the military court. He stated, amongst other things, that there was no official information that at the time of the incident a counterterrorist operation had been taking place, and that the servicemen had opened unprovoked fire aiming to kill him, as otherwise, they would have shot at the feet and not in the stomach. The applciant requested that the refusal to open a criminal case be overruled and a fully-fledged investigation be initiated into the events.

On 14 September 2017 the military court rejected the appeal having found that the refusal to open a criminal case was duly substantiated.

The applicant appealed the above decision to the North Caucuses Circuit Military Court. On 9 November 2017 the court rejected the appeal.

B. Relevant domestic law and international law and practice

Tagayeva and Others v. Russia , nos. 26562/07 and 6 others, §§ 457- 72, 13 April 2017.

COMPLAINTS

The applicant complains under Article 2 of the Convention that he was heavily wounded as a result of unprovoked use by State agents of lethal force and that the domestic authorities failed to investigate the matter. Under Article 13 of the Convention, the applicant complains that he had no effective domestic remedies against the violations alleged.

QUESTIONS TO THE PARTIES

1. Has the applicant ’ s right to life ensured by Article 2 of the Convention, been violated in the present cases? In particular, did his injury of 31 May 2016 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 applicant ’ s right to life 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 circumstances of the applicant ’ s wounding on 31 May 2016, sufficient to meet their obligations under this Convention provision?

4. Did the applicant have at his disposal effective domestic remedies for his complaints under Article 2 as required by Article 13 of the Convention?

5. 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 applicant ’ s wounding;

- a copy of the criminal case file opened in connection with the applicant ’ s wounding on 31 May 2016, if any;

- copy of all refusals to initiate a criminal investigation into the circumstances of the applicant ’ s wounding on 31 May 2016 and/or the decisions to terminate criminal proceedings initiated in respect of those incidents and a copy of all domestic courts ’ decisions taken on the appeals lodged against those procedural decisions.

- 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 case.