Communicated on 23 February 2018

THIRD SECTION

Application no. 43479/14 Dibikhan Sultanovna PUGOYEVA against Russia lodged on 6 June 2014

STATEMENT OF FACTS

The applicant, Ms Dibikhan Pugoyeva , is a Russian national, who was born in 1971 and lives in Pliyevo , Ingushetia. She is represented before the Court by lawyers from NGO Stitching Russian Justice Initiative in collaboration with NGO Astreya (SRJI/ Astreya ).

The applicant is the mother of Mr Magomed Gorchkhanov , who was born in 1993.

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

A. Special operation of 22 November 2010 and subsequent events

1. Events between 20 and 25 November 2010

On 20 November 2010 the applicant ’ s son Magomed Gorchkhanov , who was underage at the time, left the applicant ’ s home in Pliyevo and went to his friend Mr D. in a settlement Farfor next to Nazran . In the morning on 22 November 2010 the applicant spoke with him on the telephone and he told her that he would return home later that day.

At about 3.30 p.m. on 22 November 2010 (in the documents submitted the date was also referred to as 20 November 2010) Mr Gorchkhanov was driving to Pliyevo in VAZ-2107 model car (also known as Lada - Priora ) with registration number “P 811 CE/150 RUS” belonging to his friend Mr A.K. who had recently purchased it from Mr R.G. The applicant ’ s son was in the car with both Mr A.K. and Mr R. G.

When the men were driving near the local administration in the village of Nasyr-Kort , armoured personnel carriers (the APCs) and at least two light ‑ coloured VAZ-2107 cars surrounded their car and forced it to stop. The men in balaclavas and camouflage uniforms emerged from those vehicles and opened gunfire at the car with the applicant ’ s son, setting it on fire. Mr R.G. was shot dead on the spot whereas Mr A.K. and the applicant ’ s son got out of the vehicle with their hands up in the air and were immediately forced into the boot of one of the light-coloured VAZ-2107 cars. After that, the vehicles drove off leaving Mr A.K. ’ s burning vehicle behind.

According to the applicant, on 22 November 2010 the servicemen of the Ingushetia Federal Security Service (the FSB) and the Ingushetia Ministry of the Interior carried out a special operation in Nazran , Ingushetia, under the command of the FSB officer P.Ch. As a result of that operation, Mr R.G. was lethally wounded and died on the spot, whereas Mr A.K. and the applicant ’ s son were arrested.

On 23 November 2010 the applicant went to the Nazran town department of police, where she was informed that her son and Mr A.K. were detained on the premises of the FSB department in Magas, Ingushetia.

On 27 November 2010 the applicant found in her courtyard an envelope with mobile telephone ’ s memory card which contained video footage of the incident of 22 November 2010. The video showed Mr A.K. ’ s car burning and surrounded by at least four vehicles and the applicant ’ s son and Mr A.K. being beaten and forced into the boot of a light-coloured Lada ‑ Priora car.

2. The FSB ’ s press release of 26 November 2010 and subsequent information

On 26 November 2010 the Ingushetia FSB published a press release concerning a special operation carried out in Pliyevo on 25 November 2010 by the FSB servicemen with the participation of officers from the police internal troops. As a result, two unidentified men, who had aided an illegal armed group by supplying it with food, had been killed.

On 1 July 2011 the Ingushetia Ministry of the Interior published a press ‑ release stating that the two unidentified men killed as a result of the special operation of 25 November 2010 had been identified as Mr A.K. and the applicant ’ s son, Mr Gorchkhanov .

3. Identification of Magomed Gorchkhanov ’ s body

On 21 December 2010 the investigators from the Magas Investigative Committee invited the applicant to identify a body. She went with her other son, a fourteen year-old M. The applicant, who was in the state of shock, could not participate in the identification. Her son, M., was not sure, but identified the remains presented to him as those belonging to his brother Magomed Gorchkhanov , by the boots and partial remains of the clothing. The head of the body was severely burnt and therefore unsusceptible for identification.

On the same date, 21 December 2010, the investigators took the applicant ’ s blood for the DNA comparative expert evaluation on possible match with the remains identified as those of Magomed Gorchkhanov .

On 23 December 2010 the applicant buried the remains as those of her son. Prior to the burial, the man who had washed the remains, told her that the remains did not belong to Magomed Gorchkhanov as they belonged to a man much larger than her son.

On 21 May 2011 the investigator M. telephoned the applicant and told her that the DNA comparative expert evaluation showed that the remains did not belong to her son Magomed Gorchkhanov . He refused to provide the applicant with a copy of the expert evaluation report.

On 1 July 2011 the Ingushetia Ministry of the Interior published the press-release according to which one of two men killed during the special operation on 25 November 2010 was Magomed Gorchkhanov (see above).

On 5 July 2011 the deputy head of the Nazran investigative committee replied to the applicant ’ s request for the results of the DNA expert evaluation stating that they were not yet available.

On 11 July 2011 the applicant received a statement according to which the DNA expert evaluation results concluded she was the mother of the person whose remains had been examined.

On 12 July 2011 the applicant wrote to the investigators stating that the remains released to her for burial on 21 December 2010 did not belong to her son Magomed Gorchkhanov .

On 14 July 2011 the Forensic Bureau of the Main Department of the Ministry of the Interior in the Stavropol Region issued a statement concerning the DNA comparative examination of the remains of the persons killed during the special operation on 25 November 2010 and the applicant ’ s blood. According to the experts, the examination established that the applicant was the mother of the person whose remains were examined.

On 12 September 2011 the investigators replied to the applicant that the conclusions of the DNA expert examination had confirmed that she had been the mother of one of the persons killed on 25 November 2010. Furthermore, her allegations concerning the information given to her on 21 May 2011 by investigator M. concerning the results of the DNA examination had been refuted by the investigator.

4. Inquiry into Magomed Gorchkhanov ’ s death

On 23 November 2010 the applicant complained of her son ’ s abduction by law-enforcement officers to the local prosecutor ’ s office, the police and the FSB.

On 25 November 2010 the applicant wrote to the Ingushetia Human Rights Envoy and a number of human rights organisations stating that on 22 November 2010 she had learnt that her son ’ s friend Mr R.G. had been killed; she had immediately started to search for her son. She had learnt from two police officers with whom she had spoken next to the town morgue that the two men who had been with Mr R.G. at the time of the killing had been alive and taken to the Ingushetia FSB. The applicant was convinced that one of those two men had been her son Magomed Gorchkhanov . In reply to her requests for information, the local FSB office denied having any information concerning his whereabouts.

On an unspecified date the applicant ’ s complaint was forwarded to the Ingushetia FSB. On 6 December 2010 the FSB replied to the applicant stating that the search for missing persons was carried out by the police and therefore her complaint had been forwarded there.

On 27 December 2010 the Ingushetia prosecutor ’ s office replied to the applicant ’ s abduction complaint stating that her son Magomed Gorchkhanov had not been arrested by the FSB and suggested that she complain to the police in order to establish his whereabouts.

On 16 February 2011 the investigators from military unit no. 507 (the military investigators) replied to the applicant that her allegations of the abduction of Magomed Gorchkhanov by the FSB officers had not been confirmed and therefore her complaint had been forwarded to the Nazran investigative committee.

On 18 October 2011 the applicant complained to the military investigators stating that her son had been abducted by law-enforcement officers on 22 November 2010 and killed three days later. The officers had tried to cover-up his killing by staging the exchange of fire on 25 November 2011. The applicant stated that various law ‑ enforcement agencies have been forwarding back and forth her complaints and that no criminal case into her son ’ s abduction had been opened. She requested that his abduction and death be investigated.

On 25 October 2011 the military investigators replied to the applicant stating that on 22 December 2010 the decision to refuse to open a criminal case was taken (see below) and on 28 June 2011 all other relevant information was forwarded to the Nazran investigative committee.

On 7 January 2012 the Ingushetia FSB replied to the applicant ’ s complaint of her son ’ s abduction by the FSB officers stating that their officers had neither arrested nor detained him, that they had no information on his whereabouts and that she should complain to the police about his disappearance.

5. The refusals to open a criminal case and the applicant ’ s appeals against them

(a) The first refusal to open a criminal case

On 22 December 2010 the investigator of the military investigations unit of the Tver Military Garrison examined the case file materials received from military unit no. 68799 and the Nazran investigative committee and refused to open a criminal case into the events of 22 November 2010 for the lack of corpus delicti in the actions of Officer P.Ch. The decision stated, amongst other things, that the special operation on 22 November 2010 had been carried out by officers from various law-enforcement agencies including the FSB and the police. Officer P.Ch. had been the senior officer in charge of the FSB ’ s group of servicemen. The FSB participants of the special operation had ambushed Mr R.G ’ s vehicle and managed to block it on the road with the UAZ and VAZ model cars and two APCs belonging to their agency. Two men had immediately jumped out of the blocked vehicle and run away in an unknown direction. Then gunfire had been opened at the officers from the blocked car; as a result of the gunfire, the FSB warrant officer A. had been shot and subsequently died in the hospital. The FSB officers had had to return fire and the vehicle with Mr R.G. in it had burst in flames. After that, the officers found the body of Mr R.G. in the car. Then the officers from the Ingushetia police had arrived at the scene in various private cars. Shortly thereafter, the participants of the special operation and a number of the police officers had canvassed the area looking for the two men who had managed to abscond and whose whereabouts remained unknown but to no avail. Finally, the text of the decision included the following:

“ ... given that the inquiry did not establish involvement of the Ingushetia FSB officers in the abduction of those [two] persons, and given that there is no information concerning that the abduction had actually been perpetrated, it is necessary to conclude that the decision to refuse to open a criminal case against P.Ch. for the lack of corpus delicti should be taken ... ”

The applicant was informed of that decision on or after 25 October 2011.

On 20 May 2012 the applicant appealed against the above refusal to the Nalchik Military Garrison Court (the Military Court). She stressed that the decision had been taken on the basis of the statements given by the implicated FSB officers and that the investigators had completely ignored the video footage of the incident which had been placed in her courtyard and which she had given to them for examination. The investigators ’ reference to its allegedly poor quality precluding them from establishing the registration numbers of the vehicles involved was unsubstantiated.

On 7 June 2012 the supervising military investigators overruled the decision to refuse to open a criminal case as premature and unsubstantiated and ordered that a new inquiry into the events of 22 November 2010 be carried out. On the same date the applicant was informed thereof.

On 8 June 2012 the Military Court refused to examine the applicant ’ s complaint against the refusal as the impugned decision had been overruled and a new inquiry ordered.

(b) The second refusal to open a criminal case

On 16 June 2012 the military investigators issued a new decision refusing to open a criminal case into the circumstances of the incident of 22 November 2010 for the lack of corpus delicti in the actions of Officer P.Ch. The text of the decision was almost identical to the one taken on 22 December 2010 (see above).

On 17 July 2012 the applicant appealed against that decision to the Military Court stating that it should be overruled as premature and unsubstantiated. In particular, she pointed out that the investigators had failed to take any steps to remedy the shortcomings indicated in her appeal against the first refusal to open a criminal case.

On 13 August 2012 the supervising military investigators overruled the decision to refuse to open a criminal case as premature and unsubstantiated and ordered that a new inquiry into the events of 22 November 2010 be carried out. On the same date the applicant was informed thereof.

On 14 August 2012 the Military Court refused to examine the applicant ’ s complaint as the impugned refusal had been overruled and a new inquiry ordered.

(c) The third refusal to open a criminal case

On 14 August 2012 the military investigators again decided to refuse to open a criminal case into the circumstances of the incident of 22 November 2010 for the lack of corpus delicti in the actions of Officer P.Ch. The text of the decision was almost identical to the ones taken on 22 December 2010 and 16 June 2012.

On 3 December 2012 the supervising military investigators overruled that refusal as premature and unsubstantiated and ordered that a new inquiry be carried out. In particular, the investigators were to elucidate the circumstances of the death of the applicant ’ s son and Mr A.K. on 25 November 2010 as well as “to question the FSB officers who had participated in the special operation aimed at the apprehension of Mr A.K. and M. Gorchkhanov .”

(d) The fourth refusal to open a criminal case

On 19 June 2013 the military investigators again decided to refuse to open a criminal case into the circumstances of the incident of 22 November 2010 for the lack of corpus delicti in the actions of Officer P.Ch. on account of alleged murder of Mr A.K. and Magomed Gorchkhanov on 25 November 2010, as well as on account of their alleged abduction on 22 November 2010 due to the absence of the event of the crime.

From text of the decision it transpires that one police officer and four FSB officers were interviewed. According to the document, the FSB Officer P.Ch. had been in charge of the special operation on 22 November 2010 when the two suspects had managed to abscond as well as of the special operation on 25 November 2010 during which two men had opened gunfire at the FSB officers and then had blown themselves up on an unidentified explosive device. The remains of one of those men had been later identified as those belonging to Magomed Gorchkhanov . In addition, the text of the decision stated as the following:

“... In his additional statement, the head of the Nazran town police department [the Nazran OVD] Mr A.M. stated that according to their information, on 22 November 2010 at about 3 p.m. in Nasyr-Kort Mr R.G. had resisted the arrest and opened gunfire at the FSB officers. As a result, he had been eliminated on the spot, while Mr A.K. and Mr Gorchkhanov , who had been next to him in the car, had absconded from the crime scene. Both of them had been subsequently elimina ted in a dugout in Pliyevo ...

The FSB officer Mr P.Ch. stated to the inquiry that on 22 November 2010 he had participated in the special operation aimed at establishing and arresting membe rs of illegal armed groups ... Besides Mr R.G. in that car there had been two other persons. Later it had been established that those persons had been Mr A.K. and Mr Gorchkhanov ; they had jumped out of the car as soon as it stopped and had ran aw ay in an unknown direction ... ”

On 20 September 2013 the applicant appealed against the above decision to the Military Court. She stated, in particular, that despite the video footage of the incident involving the killing of Mr R.G. and showing her son and Mr A.K. being forced in the boot of the car by the FSB officers, the investigators had failed to properly examine this evidence. The inquiry yet again limited itself to obtaining statements only from the officers implicated in the incident. In the applicant ’ s opinion, those officers were responsible for the abduction of her son on 22 November 2010 and his subsequent killing on 25 November 2010.

On 30 September 2013 the Military Court examined the applicant ’ s complaint having referred to it as “the complaint of 14 August 2012” (see above). The text of the court ’ s decision contained, amongst other things, the following:

“... from the decision of military prosecutors of 3 December 2012 concerning the refusal to open a criminal case it follows that ... the materials were forwarded for an additional inquiry”.

The court rejected the applicant ’ s complaint stating that the “impugned refusal had been overruled.”

(e) The fifth refusal to open a criminal case

From the documents submitted it follows that on 7 February 2014 the applicant was informed of yet another refusal to initiate a criminal investigation into her son ’ s abduction. It is unclear whether the applicant appealed against this refusal.

B. Relevant domestic law

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 her son Magomed Gorchkhanov was abducted and killed by State agents and that the authorities failed to effectively investigate the matter. Under Article 5 of the Convention, she alleges that her son ’ s arrest and detention by State agents were unlawful and under Article 13 of the Convention, that she had no effective domestic remedies against the violations alleged under Article 2 of the Convention.

QUESTIONS TO THE PARTIES

1. Has Mr Magomed Gorchkhanov ’ s right to life, ensured by Article 2 of the Convention, been violated in the present case? In particular, did his death result from a use of force which was absolutely necessary?

2. 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), have the domestic authorities complied with the obligation to carry out an effective investigation into the alleged abduction and death of Mr Gorchkhanov as required by Article 2 of the Convention?

3. Was Mr Gorchkhanov deprived of his liberty within the meaning of Article 5 § 1 of the Convention? If so, was that deprivation compatible with the guarantees of Article 5 §§ 1 to 5 of the Convention?

4. Did the applicant have at her disposal effective domestic remedies for her 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 inquiry(- ies ) carried out into the circumstances of Mr Gorchkhanov ’ s alleged abduction and death as well as of the criminal case file(s) opened in connection with those events and/or of all of the refusals to initiate a criminal investigation into the circumstances of his abduction and death as well as of all of the domestic courts ’ decisions taken on the appeals lodged against those decisions.