EUROPEAN COURT OF HUMAN RIGHTS
CASE OF NAGMETOV v. RUSSIA
(Application no. 35589/08)
<*> This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Nagmetov v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Mirjana Lazarova Trajkovska,
Paulo Pinto de Albuquerque,
Dmitry Dedov, judges,
and Wampach, Deputy Section Registrar,
Having deliberated in private on 6 and 13 October 2015,
Delivers the following judgment, which was adopted on that date:
- The case originated in an application (no. 35589/08) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms («the Convention») by a Russian national, Mr Yarmet Uzerovich Nagmetov («the applicant») on 11 July 2008.
- The applicant, was represented by Ms K. Kostromina, a lawyer practising in Moscow. The Russian Government («the Government») were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
- The applicant alleged under Article 2 of the Convention that his son had died following the use of a lethal weapon against him, and that there had been no effective investigation in this respect.
- On 13 January 2012 the application was communicated to the Government.
- The circumstances of the case
- The applicant was born in 1949 and lives in Makhachkala, Republic of Dagestan, Russia.
Death of the applicant’s son
- On 25 April 2006 the applicant’s son, Murad Nagmetov, participated in a public gathering in the village of Miskindzha, in the Dokuzparinskiy district of Dagestan. Several hundred people took part, raising allegations of corruption against local public officials. At around 3 p.m. officers of the special mobile unit encircled the participants and fired several warning shots in the air.
- Thereafter, the gathering was dispersed by the authorities with the use of firearms (see also Primov and Others v. Russia, no. 17391/06, §§ 15 — 18, 12 June 2014). Murad Nagmetov was wounded by a tear gas grenade and died of his wounds. Five other people were seriously wounded; a large number of people sustained injuries and were arrested.
- On the same day, the prosecutor of the Republic of Dagestan initiated criminal proceedings on charges of murder and illegally handling firearms (Articles 105 and 222 of the Criminal Code) and assigned the case to an investigator.
- A forensic expert examined the deceased’s body and extracted the objects that killed him.
- On the same day, the investigator commissioned a ballistics report from the Forensic Expert Centre of the Dagestan Ministry of the Interior to determine the type of the grenade, the type of rifle used to fire it and whether the grenade had striae that could be used for identifying the rifle.
- On 11 May 2006 the ballistics expert issued a report and concluded as follows:
«1. The forensic expert was given the following two objects for examination: a grenade with a special charge; and an obturator with a special charge (a 23 mm cartridge used with a carbine type KS-23 (KS-23M)). It has not been possible to determine the exact make of the tear gas grenade.
- …It would not be possible to use the obturator on the body of the grenade to identify the specific weapon used. It would however be possible to use the separate obturator to identify the weapon used, if the weapon were provided for examination.»
- On 26 June 2006 the investigating authority commissioned another ballistics report to identify the rifle used to fire the grenade extracted from the body of the applicant’s son. On 6 July 2006 the Forensic Expert Centre of the Dagestan Ministry of the Interior declined to carry out an examination, referring to the absence of «facilities or equipment for test-shooting 23 mm canisters with special gases».
- On an unspecified date, a number of carbines used by officers of the special mobile unit on 25 April 2006 were seized.
- In July and August 2006 the investigating authority commissioned ballistics reports from the Forensic Expert Centre of the Dagestan Ministry of the Interior and another local expert institution. However, the reports were not produced, apparently, on account of lack of sufficient technical facilities.
- On 6 September 2006 the Federal Office of Forensic Examination of the Federal Ministry of Justice was asked to prepare a ballistics report in order to determine which carbine had been fired at the victim. The investigating authority submitted the objects extracted from the victim’s body, as well as thirteen carbines.
- On 19 October 2006 the authorities took the decision to open another criminal case concerning the charge of abuse of power by a public official causing death (Article 286 of the Criminal Code). It appears from the decision that it concerned other people rather than the applicant’s son. The decision read as follows:
«It was established that police officers had had recourse to firearms… Officers of the special mobile unit fired gunshots, using 23 mm cartridges, and tear gas grenades violating a directive dated 5 November 1996 and acting in excess of their competence… It is prohibited to fire these tear gas canisters at a person. As a result, Mr N. and Mr A. sustained injuries.»
- Later on, the above-mentioned cases were joined to be investigated together.
- On 8 November 2006 the Federal Office of Forensic Examination issued a report, which reads as follows:
«…As the relevant 23 mm cartridges had not been submitted for test shots, a request for 23 mm Volna cartridges was made with the relevant department of the Ministry of the Interior of the Russian Federation… [Footnote: Volna cartridges are used for training purposes relating to the use of KS-23 and KS-23M carbines. These cartridges are similar to those normally used with these carbines. The only difference is that they do not contain the irritating chemical substance.]…
The research part…
- …I note that the tear gas grenade has no striae left by the carbine used to fire it. This may be explained by the fact that the grenade could not have had contact with the interior of the carbine as it had been loaded into it with the aid of two obturators…
- Test shots have been done in respect of the KS-23 and KS23M carbines that were submitted for the examination. The purpose of the test shots was to observe the striae left on the obturators of the grenades fired from these carbines, and to compare the striae with the striae left on the obturator of the grenade used against the victim. I have used 23 mm Volna cartridges for the test shots. These cartridges are similar to those that were submitted for the examination…
- …In view of the variance of the results of the test shots, it was impracticable to identify the relevant carbine on the basis of the striae left on the obturators… in particular, on account of the elasticity and low thermo-resistance of the material used in the obturators…»
- On 15 November 2006 another ballistics report was sought from the Forensic Science Institute of the Federal Security Service («the Institute»). The Institute was likewise provided with thirteen carbines and the objects extracted from the victim’s body.
- On 26 February 2007 the expert from the Institute issued a report stating that it was not practicable to determine which of the examined carbines had been used to shoot the cartridge. The forensic expert explained that she had been provided with Volna cartridges for the purpose of her research and for test shots, whereas the elements extracted from the victim’s body were parts of a grenade. The forensic expert specified that Volna cartridges and tear gas grenades had «different geometric parameters and are made of materials with different characteristics».
- On 26 February 2007 the investigating authority suspended the investigation.
- On 30 August 2007 the applicant’s son, Mr Rafik Nagmetov, brought court proceedings challenging the alleged inaction of the investigating authority. In a judgment of 8 October 2007 Sovetskiy District Court of Makhachkala dismissed the complaint. The court held as follows:
«Over seventy people were interviewed in the course of the investigation. The necessary (medical, ballistics, criminological) examinations were carried out… All carbines, which had been used by the officers, were seized… All relevant officers were identified… The logbooks concerning distribution of weapons and ammunition were examined… On three occasions three different expert institutions were asked to submit ballistics reports. The requests were not complied with on account of the absence of the necessary equipment… Attempts were made to identify the relevant rifle in other expert institutions… Those were not equipped for this kind of forensic examination… Subsequently, the Federal Office of Forensic Examination was not able to identify the weapon… Another request is pending before the Forensic Science Institute of the Federal Security Service… So, the investigating authority has carried out all the investigative measures that were possible in the absence of an identified suspect.»
- On 14 January 2008 the Supreme Court of the Republic of Dagestan upheld the judgment.
- The applicant’s son, Mr Rafik Nagmetov, also sought a judicial review of the suspension decision of 26 February 2007. On 25 July 2008 the District Court held that the suspension of the investigation was justified. However, on 8 September 2008 the appeal court quashed the judgment and ordered a re-examination of the complaint. In a judgment of 6 October 2008 the District Court granted the complaint, considering that by failing to submit appropriate comparative material to the forensic expert, the investigating authority failed to take «exhaustive measures aimed at identifying the perpetrator».
- On an unspecified date, the applicant became aware that the evidence extracted from the body of his son had been lost.
- In November 2009 the applicant requested that the authorities commission an additional ballistics report and complained about the loss of the evidence.
- On 16 December 2009 the investigation was resumed. It appears that the investigating authority took some measures to clarify what had happened to the evidence. In particular, armourers from the special mobile unit were interviewed. The investigator also made an enquiry with the Institute referring to his difficulties in interpreting the report of 26 February 2007. It remains unclear what reply was received to this enquiry.
- According to the Government, the enquiry about the loss of evidence yielded no specific results, in particular on account of the death of the investigator in the case and the redeployment of the investigation unit.
- On 16 January 2010 the investigator again suspended the investigation.
- On 21 February 2011 the acting prosecutor of the Republic of Dagestan determined that this decision was unlawful and ordered a resumption of the investigation. The decision reads as follows:
«Having examined the file, I conclude that the investigation did not exhaust the measures aimed at establishing the circumstances of the crime, at collecting the evidence and identifying the rifle used to cause the victim’s death… In particular, the request for a ballistics report to the Institute was submitted with Volna cartridges instead of the type of cartridges used for causing the victim’s death. The different geometric parameters of these cartridges prevented the experts from identifying the carbine used against the victim…
Following the resumption of the investigation in December 2009 the investigator merely made an enquiry instead of actually submitting grenades for comparative research…
It does not follow from the expert report of 26 February 2007 that it was impossible to identify the rifle, on the condition that cartridges of the relevant type were provided.
The evidence extracted from the victim’s body was examined for the purposes of the above expert report. Thus, the current unavailability of this evidence is not an obstacle for seeking a new ballistics report from the same institution.»
- Following the resumption of the investigation the investigator made enquiries with the Institute about the possibility of carrying out a ballistics examination in the absence of the evidence extracted from the victim’s body. Whereas it remains unclear what reply was received from the Institute, it does not appear that any new ballistics examination was carried out.
- On 17 April 2011 the investigating authority issued a decision suspending the investigation. This decision reads as follows:
«It follows from the evidence in the case file that on 25 April 2006 inhabitants of nearby villages and other people blocked the road with stones and logs… In reply to lawful orders from the police requiring them to disperse, unidentified people threw stones at the police, causing various physical injuries to eleven officers. To retaliate, the police officers used firearms…
Officers of the special mobile unit fired shots with their pump-action shotguns towards the crowd, using 23 mm cartridges, and a tear gas grenade. Thereby they violated a directive dated 5 November 1996… and acted in excess of their competence. As a result, [the applicant’s son] and others sustained shotgun wounds… causing [him] to die on the spot.
It is impossible to commission another ballistics report in the absence of the cartridge. It has not been possible to identify the person who shot [the applicant’s son].»
- The applicant did not challenge this decision.
- Relevant domestic law
- Article 413 of the CCrP, setting out the procedure for the reopening of criminal cases, reads, in so far as relevant, as follows:
«1. Judgments and other court decisions which have become final may be quashed and criminal proceedings reopened if there are new or newly discovered circumstances.
- New circumstances are:…
(2) a violation of a provision of the European Convention for the Protection of Human Rights and Fundamental Freedoms in criminal court proceedings, as established by the European Court of Human Rights, and pertaining to:
(a) application of a federal statute which runs contrary to provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms;
(b) other violations of provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms;…»
- Alleged violation of Article 2 of the Convention
- The applicant complained that his son Murad had died in circumstances disclosing an unlawful and excessive use of lethal force. The applicant also contended that no effective investigation had been carried out.
- The Court has examined the above complaint under Article 2 of the Convention, which reads as follows:
«1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
- Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.»
- The parties’ submissions
- The Government acknowledged a violation of the material aspect of Article 2 of the Convention «on account of the unlawful actions by law enforcement officers who had acted in excess of their powers». However, the Government argued that an effective and thorough investigation had been carried out in the present case. The applicant and other people had been granted victim status in the criminal investigation. Over seventy people had been questioned as witnesses. A number of forensic reports (such as a medical expert report and a ballistics expert report) had been obtained. In particular, the Government relied on the report of 8 November 2006, which convincingly explained the technical impossibility of identifying the carbine used to fire the grenade that killed the applicant’s son (see paragraph 18 above). For its part, the Forensic Science Institute of the Federal Security Service did not have sufficient technical facilities to carry out a forensic examination. The authorities carried out an enquiry about the loss of evidence, albeit without specific results, in particular on account of the death of the investigator in the case and the redeployment of the investigation unit. The investigating authorities had therefore exhausted all reasonable measures aimed at collecting evidence and at identifying the alleged perpetrator.
- The applicant maintained his complaint.
- The Court’s assessment
- The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
(a) Material aspect
- The Court notes that the Government have acknowledged that Murad Nagmetov was deprived of his life, in contravention of the requirements of Article 2 of the Convention. In particular, the Government stated, together with the domestic authorities, that it was against Russian law to fire the tear gas grenade in question directly at a person.
- The Court finds no reasons to disagree with the above submission (see also Abdullah and Others v. Turkey, no. 44827/08, § 48, 16 July 2013). Thus, there has been a violation of Article 2 of the Convention.
(b) Procedural aspect
(i) General principles
- Having regard to their fundamental character, Articles 2 and 3 of the Convention contain a procedural obligation to carry out an effective investigation into alleged breaches of the substantive limb of these provisions (see Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 298, ECHR 2011 (extracts)). For an investigation into alleged killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and those carrying out the investigation to be independent from those involved in the events (ibid., § 300). This means not only no hierarchical or institutional connection but also practical independence. What is at stake here is nothing less than public confidence in the State’s monopoly on the use of force (ibid., § 300).
- The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used was or was not justified in the circumstances (see, for example, Kaya v. Turkey, 19 February 1998, § 87, Reports of Judgments and Decisions 1998-I) and of identifying and — if appropriate — punishing those responsible (see v. Turkey [GC], no. 21594/93, § 88, ECHR 1999-III). This is not an obligation of result, but that of means. The authorities must take whatever reasonable steps they can to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of the clinical findings, including the cause of death (as regards autopsies, see, among other authorities, Salman v. Turkey [GC], no. 21986/93, § 106, ECHR 2000-VII; on the subject of witnesses, see, among other authorities, v. Turkey [GC], no. 23763/94, § 109, ECHR 1999-IV; as regards forensic examinations, see, among other authorities, v. Turkey, no. 22676/93, § 89, 14 December 2000). Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard (see v. Turkey, no. 25657/94, §§ 393 — 395, ECHR 2001-VII (extracts)).
- In particular, the investigation’s conclusions must be based on thorough and impartial analysis of all relevant evidence. Failing to follow an obvious line of inquiry undermines to a decisive extent the investigation’s ability to establish the circumstances of the case and the identity of those responsible (see Kolevi v. Bulgaria, no. 1108/02, § 201, 5 November 2009). Nevertheless, the nature and degree of scrutiny which satisfy the minimum threshold of the investigation’s effectiveness depend on the circumstances of the particular case. They must be assessed on the basis of all relevant facts and with regard to the practical realities of investigation work (see Velcea and v. Romania, no. 64301/01, § 105, 1 December 2009).
- A requirement of promptness and reasonable expedition is implicit in this context (see v. Turkey, 2 September 1998, §§ 102 — 104, Reports 1998-VI; , cited above, § 109; and Mahmut Kaya v. Turkey, no. 22535/93, §§ 106 — 107, ECHR 2000-III). The Court accepts that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. However, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see McKerr v. the United Kingdom, no. 28883/95, §§ 111 and 114, ECHR 2001-III, and Opuz v. Turkey, no. 33401/02, § 150, ECHR 2009).
(ii) Application of the principles in the present case
- First of all, the Court notes that following the death of the applicant’s son a criminal investigation was opened, and it was done without delay (see, by contrast, Lyapin v. Russia, no. 46956/09, §§ 128 — 133, 24 July 2014).
- Second, the Court considers that the applicant’s argument concerning, in substance, the alleged partiality of the investigating authority or the experts in the case is unspecific and unsubstantiated. In the present case, the Court has no reasons to conclude that there was any hierarchical or institutional connection between the persons responsible for and those carrying out the investigation and those implicated in the events (see, by way of comparison, A.A. v. Russia, no. 49097/08, § 94, 17 January 2012, and Davitidze v. Russia, no. 8810/05, § 107, 30 May 2013).
- Third, as to the thoroughness of the authorities’ efforts to identify the person who caused the victim’s death, the Court reiterates that in investigations into killings crucial evidence is usually available to the investigating authorities at the beginning of the investigation. The body of the victim, the crime scene, eyewitness evidence and the material used in the commission of the offence, such as bullets and spent cartridges, are of benefit to investigators and provide them with pointers in the earliest stages of their enquiries (see Er and Others v. Turkey, no. 23016/04, § 54, 31 July 2012). The Court’s task in the present case is to determine, with due regard to the specific allegations and arguments from the parties, whether some deficiency in the investigation undermined its ability to identify the person responsible for the victim’s injuries and death.
- It follows from the available material that over seventy people were interviewed in the course of the investigation; the relevant officers were identified; and the logbooks concerning distribution of weapons and ammunition were examined (see paragraph 22 above). The applicant raised no arguments relating to these investigative measures. At the same time, the Court observes that in his application before it the applicant referred mostly to the allegedly unsatisfactory quality of the expert reports.
- It appears from the available material that the domestic authorities proceeded on the assumption that the victim’s death resulted from the use of a weapon by an officer of the special mobile unit and that this use was in breach of the domestic regulations because it was not appropriate to fire a tear gas grenade directly at a person. In the circumstances of the case, the authorities considered it pertinent to check for a possible match between the evidence extracted from the victim’s body and the carbines held by the officers during the public gathering on 25 April 2006.
- As to the pace and thoroughness of the measures concerning this aspect of the investigation, it remains unclear when the relevant carbines were seized. At least, it is noted that the first ballistics expert stated in May 2006 that it would be possible to identify the specific weapon using a separate obturator, if such a weapon were provided for examination (see paragraph 11 above). More than a month later, the investigating authority decided to commission another ballistics report from the same expert institution. However, at this point it could not be done because of the absence of «facilities or equipment for test-shooting 23 mm canisters with special gases» (see paragraph 12 above). As a result, this test was only performed after August 2006 when the investigating authority provided the forensic experts with a number of carbines (see paragraph 15 above). It is uncontested that these carbines were the ones that had been used by the officers of the special mobile unit on 25 April 2006. However, it is regrettable that it took nearly eight months to make proper arrangements for a comparative forensic examination in late 2006 and then three more months to receive a reply from the Forensic Science Institute of the Federal Security Service in February 2007 (see paragraph 20 above).
- The Court considers that, in addition to the above unjustified delays, the domestic authorities failed to take reasonable measures to preserve the key evidence in the case. The Court reiterates in this connection that to be effective an investigation should be «capable of leading to» the identification and punishment of those responsible. Otherwise, it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV). Therefore, the loss of the evidence extracted from the victim’s body (see paragraph 25 above) required a prompt and thorough enquiry. In the circumstances relating to the use of weapons by an agent of the State it was important to confirm or dispel any doubts as to the absence of any bad faith in handling evidence on the part of any public officials. Nevertheless, the available decisions contain no presentation or assessment of any evidence as to the circumstances of the loss of the key piece of evidence (see paragraphs 27 — 28 above). The Court has not been provided with convincing evidence that the Russian authorities took sufficient steps to secure the evidence concerning the incident and to investigate the loss of the key piece of evidence.
- The respondent Government has argued that the effectiveness of the domestic investigation was not undermined by the loss of the evidence because it happened after the investigators had already exhausted all reasonable measures, including the comparative forensic examination. The investigation could not be completed on account of the objective impossibility to identify the relevant rifle.
- The Court agrees with the Government that the ballistics report of 8 November 2006 did contain an assessment of the relevant evidence, including that extracted from the victim’s body. The expert test shot the carbines and made an attempt to compare the results with the striae left on the evidence extracted from the victim’s body. This measure was intended to establish whether any of the carbines had been used to fatally wound the applicant’s son. The expert concluded that it was technically impossible to establish, to a reasonable degree of certainty, whether or not any of the tested carbines had been used to shoot the victim.
- However, it appears that the investigating authority and the prosecutor’s office were not satisfied with the ballistics report of 8 November 2006 (see paragraphs 27 and 30 above), and thus the Forensic Science Institute was asked to reassess the matter. It replied in February 2007 that it was not practicable to determine which of the carbines had been used to shoot the cartridge. It remains unclear why the new forensic expert was provided with Volna cartridges rather than the relevant type of grenades for comparative research and why those could not have been obtained by her proprio motu. The respondent Government have not substantiated their statement before the Court that the Institute had insufficient technical facilities to carry out a forensic examination.
- For its part, the Court is not ready to rely on the report of 8 November 2006 as regards its conclusion of the impossibility of identifying the relevant carbine. It can be reasonably inferred from the expert’s explanation in February 2007 that Volna cartridges were not appropriate for comparative testing because they and the elements of the grenade, which had been extracted from the victim’s body, had different geometric parameters and were made of materials with different characteristics (see paragraph 20 above).
- The investigating authority failed to act on the information received from the Institute and suspended the investigation in February 2007, without any valid reason. While the domestic court eventually acknowledged in October 2008 that the investigating authority had wrongly suspended the investigation and had not taken «the exhaustive measures aimed at identifying the perpetrator» (see paragraph 24 above), it was only in December 2009 that the authorities resumed the investigation.
- By that time, the key evidence had already been lost (see paragraph 52 above). However, the prosecutors considered that a new forensic examination was still necessary and possible (see paragraph 30 and 32 above). Despite the prosecutors’ orders, the investigating authority failed to submit the materials for a new forensic examination. Instead, they limited their work to making enquiries with the Institute which, apparently, yielded no replies (see paragraphs 27, 30 and 31 above).
- The Court has not been provided with any evidence which would refute the domestic authorities’ conclusion that the new comparative ballistics assessment remained necessary and possible, despite the loss of the evidence. The report of 26 February 2007 may be perceived as disclosing an important disagreement with the methodology of the report of 8 November 2006, that is whether it was appropriate to use Volna cartridges for the comparative test-shooting, as it was done in the latter forensic examination. By implication, it could be argued that there remained a possibility that a proper comparative assessment might lead to the identification of the relevant rifle.
- In addition, the Court cannot but note that the available official decisions, including the most recent one in 2011, concern the suspension of the investigation. They do not contain any presentation or analysis of the available evidence such as statements regarding the incident on 25 April 2006. Thus, the applicant has not been provided with any official conclusions relating to his son’s death.
- Lastly, it does not transpire from the available material that there was any adequate disciplinary or criminal inquiry carried out in respect of the superior officers who had the task of training and supervising the officers who had been involved in the events on 25 April 2006.
- Taken together, the foregoing considerations have led the Court to conclude that the authorities did not exhaust all reasonable and practicable measures, which would be capable of providing assistance in identifying the shooter and in establishing the other relevant circumstances of the case.
- There has therefore been a violation of Article 2 of the Convention under its procedural limb.
- Other alleged violations of the Convention
- Lastly, the applicant raised complaints relating to Murad Nagmetov’s exercise of his rights under Articles 10 and 11 of the Convention. The Court considers that the applicant has no standing to lodge a complaint before the Court concerning the deceased’s above-named rights (see Gakiyev and Gakiyeva v. Russia, no. 3179/05, §§ 164 — 168, 23 April 2009).
- It follows that this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
III. Application of Article 41 of the Convention
- Article 41 of the Convention provides:
«If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.»
- The Court reiterates that, as a rule, no award is made under Article 41 of the Convention where an applicant has not submitted a claim for just satisfaction within the prescribed time-limit (see, among others, Lagutin and Others v. Russia, nos. 6228/09, 19123/09, 19678/07, 52340/08 and 7451/09, § 128, 24 April 2014, in the context of a violation under the criminal limb of Article 6 of the Convention). An applicant who wishes to obtain an award of just satisfaction must make a specific claim to that effect (Rule 60 § 1 of the Rules of Court).
- However, based on the powers conferred on it by Article 41 of the Convention, the Court previously found it equitable to make a monetary award in respect of just satisfaction on account of non-pecuniary damage, even where no such claim had been made, for instance taking into account the absolute character of the right violated (see Bursuc v. Romania, no. 42066/98, § 124, 12 October 2004; Mayzit v. Russia, no. 63378/00, § 88, 20 January 2005; Davtyan v. Georgia, no. 73241/01, § 71, 27 July 2006; Babushkin v. Russia, no. 67253/01, § 62, 18 October 2007; Igor Ivanov v. Russia, no. 34000/02, §§ 50 — 51, 7 June 2007; Chember v. Russia, no. 7188/03, § 77, ECHR 2008; Chudun v. Russia, no. 20641/04, § 129, 21 June 2011; and Borodin v. Russia, no. 41867/04, § 166, 6 November 2012; see also, in the context of Article 5 of the Convention, Rusu v. Austria, no. 34082/02, § 62, 2 October 2008, and Crabtree v. the Czech Republic, no. 41116/04, § 60, 25 February 2010).
- Turning to the present case, the Court notes that the applicant has not submitted a claim for just satisfaction on account of non-pecuniary damage.
- At the same time, the Court would like to make the following observations. First, it has found a double violation in respect of the fundamental right under Article 2 of the Convention on account of the use of firearms by the police causing the death of the applicant’s son and the shortcomings in the investigation. Second, while it is noted that the respondent Government have acknowledged before the Court the violation under the material limb of Article 2 of the Convention, no monetary award was made in this respect at the domestic level. Furthermore, it follows from the available information that the criminal investigation has remained suspended since 2011 so that no definitive domestic decision has been taken as to the merits of the applicant’s criminal complaint and as regards the legality of the use of weapons in the present case (see paragraph 60 above). In any event, while it appears that following the Court’s judgment the application of Article 413 of the Code of Criminal Procedure (see paragraph 34 above) might open a possibility of the resumption of the criminal investigation, the Court cannot but note that over nine years have passed after the events, which may adversely affect any eventual measure of «reparation», in particular aiming at remedying the shortcomings of the investigation.
- Against this background and in so far as a monetary compensation is relevant in the present context (see, by way of comparison, Kopylov v. Russia, no. 3933/04, §§ 127 — 131, 29 July 2010), it remains unclear whether the domestic law allows the adequate «reparation» to be sought and obtained within a reasonable time on account of the double violation under Article 2 of the Convention, in particular on account of the defects in the investigation (see, mutatis mutandis, Tarariyeva v. Russia, no. 4353/03, §§ 96 — 101, ECHR 2006-XV (extracts); Menesheva v. Russia, no. 59261/00, § 77, ECHR 2006-III; Dedovskiy and Others v. Russia, no. 7178/03, §§ 98 — 102, ECHR 2008 (extracts); Denis Vasilyev v. Russia, no. 32704/04, § 136, 17 December 2009, and Islamova v. Russia, no. 5713/11, § 73, 30 April 2015, in the context of Article 13 of the Convention; see also Jalloh v. Germany [GC], no. 54810/00, § 129, ECHR 2006-IX).
- The Court considers that the applicant must have suffered anguish and distress which cannot be compensated for by a mere finding of a violation. Having regard to the above considerations, the Court finds it appropriate and necessary in the particular circumstances of the case to award the applicant, on an equitable basis, a sum of 50,000 euros (EUR), in respect of non-pecuniary damage, plus any tax that may be chargeable to him.
- The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
- Lastly, it is noted that no claim in respect of costs and expenses has been made by the applicant. Therefore, no award should be made in this respect.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
- Declares the complaint under Article 2 of the Convention admissible and the remainder inadmissible;
- Holds that there has been a violation of Article 2 of the Convention under its material limb;
- Holds that there has been a violation of Article 2 of the Convention under its procedural limb;
(a) that the respondent State is to pay Mr Yarmet Uzerovich Nagmetov, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 50,000 (fifty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Done in English, and notified in writing on 5 November 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate concurring opinion of Judge is annexed to this judgment.
CONCURRING OPINION OF JUDGE
This judgment consolidates a line of authority which, in exceptional cases, awards just satisfaction under Article 41 of the Convention where the applicant has not submitted a claim for just satisfaction. In the light of Article 30 of the Convention, and in view of the importance of the principle of ne ultra petitum, it would have been more appropriate to refer this matter to the Grand Chamber for consideration.