Постановление ЕСПЧ от 16.02.2016 <Дело Далаков (Dalakov) против России> (жалоба N 35152/09) [англ.]

EUROPEAN COURT OF HUMAN RIGHTS
THIRD SECTION
CASE OF DALAKOV v. RUSSIA
(Application no. 35152/09)
JUDGMENT <*>

(Strasbourg, 16.II.2016)
———————————

<*> 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 Dalakov v. Russia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Luis  Guerra, President,
Helena ,
George Nicolaou,
Johannes Silvis,
Dmitry Dedov,
Branko Lubarda,
Alena , judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 26 January 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE

  1. The case originated in an application (no. 35152/09) 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 Magomed Dalakov («the applicant»), on 30 May 2009.
  2. The applicant was represented by lawyers of the NGO EHRAC/Memorial Human Rights Centre. The Russian Government («the Government») were represented by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights.
  3. The applicant alleged that his nephew had been killed as a result of a special operation carried out by State agents in September 2007 in Ingushetia and that the authorities had failed to investigate the matter effectively.
  4. On 26 September 2013 the application was communicated to the Government.

 

THE FACTS

  1. The circumstances of the case

 

  1. The applicant was born in 1933 and lives in Karabulak, Ingushetia. He is the uncle of Mr Apti Dalakov, who was born in 1986. Mr Apti Dalakov’s parents and brother died in a car accident in 1998.
  2. The circumstances of the case are disputed by the parties.

 

The killing of Mr Apti Dalakov and subsequent events

 

  1. Killing of Mr Apti Dalakov

 

(a) The applicant’s submission

  1. At about 5 p.m. on 2 September 2007 Mr Apti Dalakov and his friend Mr I.D. left a computer club in Karabulak. While they were walking down Oskanova Street, two Gazel minivans with heavily tinted windows and without number plates pulled over and a group of men armed with assault rifles and pistols emerged from the vehicles. Two of the armed men wore plain clothes, while the others were in camouflage uniforms and balaclavas. Without identifying themselves or giving any explanation they pointed their guns at Mr Apti Dalakov and Mr I.D. and opened fire. Mr Apti Dalakov ran away. The armed men pursued him and continued shooting.
  2. In Dzhabagiyeva Street, in the presence of a number of local residents, including Mr I.B.M., Ms A.I.Ts. and Ms F.Kh.Ts., Mr Apti Dalakov was hit by a car and fell to the ground. He got up and limped into the courtyard of the adjacent nursery school. A man from the car which had hit Mr Apti Dalakov ran after him and fired at him several times with his pistol. Mr Apti Dalakov fell to the ground face down. Several other armed men ran towards the scene and one of them fired at Mr Apti Dalakov several times while he was on the ground. After having ascertained that Mr Apti Dalakov was dead, one of the armed men lifted his body and placed an object under it.
  3. Shortly thereafter a group of officers of the local police and the special police force (Отделение милиции особенного назначения (ОМОН)) (hereinafter «the OMON») arrived at the scene. A number of civilians present on the premises and the adjacent streets alerted the police officers to the fact that Mr Apti Dalakov had not offered any resistance to his pursuers, that he had not been armed and that his pursuers had placed an object under his body; it turned out to be a hand grenade with its pin pulled. The police officers requested the pursuers, who were officers of the Ingushetia Department of the Federal Security Service (Федеральная Служба Безопасности (ФСБ)) (hereinafter «the FSB») to identify themselves; they refused to do so. In the ensuing scuffle the police officers arrested the FSB officers and took them to the Karabulak town police department. Mr I.D., who had been arrested by FSB officers after the chase, was also arrested by the town police and then released several days later.
  4. After bomb disposal experts had deactivated the grenade, Mr Apti Dalakov’s body was taken for a post-mortem examination and was returned to his relatives for burial at midnight on 2 September 2007.
  5. The above account of the events is based on the information contained in the application form as well as on written statements by Mr I.B.M., dated 26 September 2007, Ms A.I.Ts. and Ms F.Kh.Ts., both dated 2 October 2007, and a written statement by the applicant dated 31 July 2009.

(b) The Government’s submission

  1. Referring to the contents of the investigation file in criminal case no. 27520028 the Government stated in their submission of 22 January 2014 that the circumstances of the incident had been as follows.

«6. Between 5.30 p.m. and 6 p.m. on 2 September 2007 servicemen of the Ingushetia FSB found presumed members of a bandit group Mr Apti Dalakov and Mr [I.D.] The FSB servicemen got out of the service car and attempted to detain these two men. They ordered the two men to get down on the ground, having identified themselves as FSB agents.

  1. Mr [I.D.] obeyed and lay down on the ground. Mr Apti Dalakov did not comply with the order and started to run away. One of the FSB agents followed him. During the pursuit he warned Mr Apti Dalakov that he would open fire if the latter did not stop… Mr Apti Dalakov stopped, took a grenade from his pocket and prepared to pull the pin. Taking into account information in their possession concerning the presumed criminal activity of Mr Apti Dalakov and his refusal to obey law-enforcement agents’ orders, the FSB officer took the decision to open fire, shooting to kill in order to eliminate the threat to his own life and health and that of the other people present at the time in the street.

  1. As regards Mr [I.D.], on 3 September 2007 the record of his arrest was drawn up and he was questioned as a suspect… arrest as a measure of restraint was chosen for him. He was released ten days later, and on or about 23 September 2007 he left to live permanently in Kazakhstan…»

 

  1. Criminal proceedings initiated against Mr Apti Dalakov

 

  1. On 2 September 2007 the Karabulak investigating department of the Investigating Committee with the Prosecutor’s Office of the Russian Federation in Ingushetia (hereinafter «the investigating department») opened criminal case no. 27520028 against Mr Apti Dalakov under Articles 317 and 222 § 1 of the Criminal Code (assault on a law-enforcement official and unlawful possession of arms and explosives).
  2. On the same date, 2 September 2007, the investigating department examined the crime scene. According to the crime scene report, forty cartridge cases were collected from the scene and a grenade was found under Mr Apti Dalakov’s body, under the lower part of his stomach. No objects were found in the hands of Mr Apti Dalakov. As a result, forty cartridges and the grenade were collected from the scene for expert examination.
  3. Between 2 and 11 September 2007 a senior operational search officer, Mr A.Kh. of the Internal Investigations Department of the Ingushetia Ministry of the Interior, conducted an internal inquiry in connection with «collaboration between police officers from the Ingushetia Ministry of the Interior and officers of the Ingushetia Federal Security Service» concerning the circumstances of Mr Apti Dalakov’s killing. Its results were stated in conclusion no. 172 dated 11 September 2007. The document, amongst other things, contained the following information:

«…at about 5 p.m. on 2 September 2007 the FSB officers conducted a special operation in Karabulak aimed at arresting members of illegal armed groups.

The local police department was not informed about it.

During the special operation, the FSB officers eliminated a member of an illegal armed group, Mr Apti Dalakov, who had offered active armed resistance.

At about 5.20 p.m. police captain [G.G.], who was on duty,… had seen two armed men pursuing a young man who was running away; one of the armed men had opened fire on him. The pursuers had been accompanied by a white Gazel vehicle with darkened windows and without number plates.

Captain [G.G.] had reported the incident to the duty unit of the Karabulak town police department, and had remained at his post…

A group of police officers dispatched to the crime scene from the town police station and a group of Ingushetia OMON which had arrived there after hearing shots from automatic weapons… found a dead man and a disorderly group of about 100 people, some in camouflage uniforms and others in civilian clothing, who were shouting… and yelling about why the police were not arresting armed bandits who had killed an unarmed man who had not offered any resistance.

The armed men, who were in camouflage uniforms and civilian clothing, who had conducted this special operation, had refused to identify themselves, had not presented any documents, and had warned that they would use firearms against the police officers.

The law-enforcement officers of Karabulak had taken those men for terrorists and/or active members of illegal armed groups…

Under these circumstances, to prevent the presumed law-enforcement officers from being lynched by the enraged crowd, the head of the Karabulak town police department, Lieutenant-Colonel [A.M.], had tried to separate the armed men who had killed [the man on the ground] and the civilians from the local residents. However, the police officers had ended up being isolated by the unidentified armed men and had become, in effect, their hostages; the armed men had behaved aggressively and refused to state what organisation they belonged to.

The OMON group had arrived at the scene, quickly assessed the situation, and then blocked and disarmed the unidentified individuals using special physical force techniques against those who resisted. After that the armed men were taken to the Karabulak town police department and the premises of the OMON unit (the entire perimeter of the town police station had been surrounded by civilians expressing their indignation at the actions of the unidentified persons who had made several «insurance» shots to the head of the unarmed wounded young man who had fallen to the ground next to the nursery school and who, according to the nearby residents, then had placed an armed grenade under his body to make it look like the young man had offered resistance).

The Ingushetia Minister of the Interior and the head of the Ingushetia FSB had arrived at the scene and taken the decision to immediately release the arrested persons to avoid making their identities known to the public…

The unidentified persons… had offered resistance to the OMON officers… as a result [of the scuffle], the police officers [M.O.] and [M.K.] and the head of the operational search unit of the Karabulak town police department, Lieutenant-Colonel [A.Ts.], required medical assistance…

All the arrested persons who were law-enforcement officers were released without logging their names in the detention log upon confirmation of their identities by the head of the Ingushetia FSB; their guns were returned to them…

Therefore, the above misunderstanding took place due to lack of proper coordination between the law-enforcement agencies who were carrying out a special task in the Republic of Ingushetia…»

  1. The documents submitted indicate that on various dates in September 2007 the investigators questioned several witnesses who lived near the crime scene. For the most part the witnesses stated that they had not seen the actual events but had seen a young’s man body on the ground surrounded by a large number of police who had cordoned off the area.
  2. On 12 September 2007 the investigators questioned Ms F.Kh.Ts., who stated that at about 5 p.m. on 2 September 2007 she had been at home. She had looked out of the window on to Dzhabagiyeva Street and heard a muffled sound of an impact. Then she had seen a young man limping rapidly past her window into the premises of the nursery school. He had been followed by a masked man in camouflage uniform with a pistol and a man with a camouflage T-shirt pulled over his head. This man was running with an automatic rifle and firing at the young man. Then all three men went round the corner of the building. The witness had immediately run outside and followed the men. She saw the young man on his stomach on the ground, convulsing. The other two men were standing next to him and arguing. Then one of them ordered the witness to go away and she obeyed the order. After that a large number of police officers had arrived at the scene and cordoned off the area.
  3. On 12 September 2007 the Ingushetia Forensic Examinations Bureau («the Forensic Bureau») concluded that the detonating fuse of the grenade recovered from the crime scene was not capable of exploding due to a missing part, but that the grenade itself was capable of exploding provided the fuse was in working condition.
  4. On 19 September 2007 the investigators questioned a police officer of the Ingushetia OMON, Akh.Ya., who stated that at about 5.30 p.m. on 2 September 2007 he had been at work when he and his colleagues had heard sounds of sporadic gunfire coming from the area around Karabulak central market. He and thirteen to fifteen of his colleagues were then dispatched to the scene of the shooting, next to the nursery school. Upon arrival at the scene the witnesses had seen a large crowd of local residents and a group of about twelve to fifteen masked men with automatic firearms. The local residents had been aggressively expressing their indignation, as according to them the armed men had killed an unarmed young man; the body was still on the ground. The armed men had refused to identify themselves or to give reasons for killing the young man. They resisted the police officers: behaved aggressively, swore, fired their weapons into the air several times, and threatened the police with firearms. When the second group of police arrived, owing to the armed men’s behaviour and the threats from the outraged crowd of local residents they disarmed the masked men, forced them into a Ural lorry, and took them to the Karabulak town police department.
  5. Between 20 and 28 September 2007 the investigators questioned the police officers M.K., M.Ku., B.She., M.Ts. and A.-G.M.; their statements concerning the events were similar to that of their colleague Akh.Ya.
  6. On 22 September 2007 the investigators were informed by the Ingushetia FSB that it was impossible to question their officers implicated in the incident, as they were all undergoing medical treatment in hospital in Kislovodsk, Russia.
  7. On 26 September 2007 the investigators questioned police officer Captain G.G., who stated that at about 5.30 p.m. on 2 September 2007 he had been on duty across the road from the nursery school. He had heard the gunshots and immediately called the police station. After that he had run out into the street and seen two men in the sand-coloured camouflage uniforms of special service agents. The men, who had been running ahead, had been firing at someone in front of them. Then the two men went round the corner of a building and out of sight. Then the men following them in a white Gazel minivan without registration numbers had turned and driven off.
  8. On 1 October 2007 the Forensic Bureau informed the investigators of its conclusions concerning the cause of Mr Apti Dalakov’s death. According to their report of 3 September 2007, Mr Apti Dalakov had died from gunshot wounds, including two in the back, one in the back of the lower leg, and one in the back of the head.
  9. On 15 or 16 October 2007 the investigators questioned an FSB officer, V.L., and granted him victim status in the criminal case. In his statement the officer submitted that at about 5 p.m. on 2 September 2007 he and his colleagues had arrived in Karabulak in a service vehicle to identify and detain members of an illegal armed group, Mr I.D. and Mr Apti Dalakov. At about 5.30 p.m. they had received information that both men were heading in their direction. The officers had been given descriptions of Mr I.D. and Mr Apti Dalakov and ordered to detain them. The witness and his colleagues got out of the car, shouted «on the ground! FSB!» and ran after the two men. Mr I.D. immediately got down on the ground, whereas Mr Apti Dalakov ran away. The witness thought Mr Apti Dalakov was armed and could offer resistance. The witness and his colleagues put Mr I.D. into their vehicle and then went after Mr Apti Dalakov. When the witness reached Dzhabagiyeva Street he heard «FSB! Stop!» and then «Stop or I’ll fire!» and then heard machine-gun shots and ran towards them. He saw his colleagues next to a two-storey building in Dzhabagiyeva Street, standing next to the body of Mr Apti Dalakov and one of the colleagues holding a grenade. He checked Mr Apti Dalakov’s pulse and confirmed that he was dead, then the witness and his colleagues called the mine squad and cordoned off the area.
  10. On 16 and 17 October 2007 the investigators questioned FSB officers A.Ch., I.K., and P.Ch., and granted them victim status in the criminal case. The statements given by the three officers to the investigation were identical to that of their colleague, officer V.L.
  11. On 2 November 2007 the investigating department terminated the proceedings in case no. 27520028. The decision referred to statements by FSB officers V.L., I.K. and P.Ch. They submitted, among other things, that on 2 September 2007 they had gone to Karabulak to arrest members of an illegal armed group, Mr Apti Dalakov and Mr I.D. When the officers had spotted the two men, they got out of their Gazel minivan and shouted: «FSB! Get down!». Mr I.D. had complied with the order but Mr Apti Dalakov had run away. Officers A.B. and A.Ch. followed Mr Apti Dalakov, while V.L., I.K. and P.Ch. put Mr I.D. securely into their vehicle. After that they heard shooting and went to Dzhabagiyeva Street, where they found FSB officers and Mr Apti Dalakov, face down on the ground with a grenade in his hand. The officers checked his pulse, ascertained that he was dead, called bomb disposal experts and secured the area. The decision further stated that officers A.B. and P.Ch. «had given similar statements», without providing any further details in that respect. The examination of the grenade seized at the scene by the authorities had established that it was capable of exploding. The decision concluded that there existed sufficient evidence to prove that Mr Apti Dalakov was guilty of assaulting law-enforcement officials and of unlawful possession of ammunition, but in view of his death in the exchange of fire the criminal case against him was to be terminated. The applicant learnt of that decision at some point in February or March 2008 (see paragraph 40 below).
  12. On 3 December 2007 the head of the investigating department overruled the decision of 2 November 2007 to terminate the criminal investigation as unsubstantiated at the request of the Karabulak town prosecutor. The latter stated in his request, among other things, the following:

«…the decision of 2 November 2007… is premature, unlawful and unsubstantiated due to the incompleteness of the investigation… for instance,

Mr [I.D.], who had complied with the order of the arresting group… was not questioned about the circumstances of the incident.

In addition, the investigators did not examine the legal grounds for the use of firearms against Mr A. Dalakov.

From conclusion no. 172 of the internal inquiry of 11 September 2007 carried out by the Internal Investigations Department of the Ingushetia Ministry of the Interior, residents of the nearby houses had stated that after the liquidation of Mr A. Dalakov, an armed grenade had been placed under his body to make it look like he had offered armed resistance. However, this information was not examined further…»

The applicant was informed of the decision on 6 December 2007.

  1. On 27 December 2007 the investigators separated the part of the evidence concerning the use of the firearms during the incident from criminal case no. 27520028 and forwarded it to another investigator in the Karabulak investigating department for further examination. In the documents submitted it is also stated that on the same date the same material was forwarded to the military investigations department of military unit no. 68799 for examination.
  2. On 3 January 2008 the investigating department again terminated the proceedings in case no. 27520028 because of the death of the suspect. The text of the decision reiterated in identical wording the decision of 2 November 2007 (see paragraph 26 above).
  3. On 22 January 2008 the head of the Ingushetia investigating department overruled the decision of 3 January 2008 to terminate the criminal investigation as premature and unsubstantiated. In particular, he pointed out that the investigators had neither questioned Mr I.D. and the FSB officer who had shot Mr Apti Dalakov nor obtained information on the inquiry concerning the use of the firearms against Mr Apti Dalakov by the FSB servicemen.
  4. On 6 February 2008 the investigation in criminal case no. 27520028 was again terminated, because of the death of the suspect. The text of the decision reiterated verbatim that of 2 November 2007 (see paragraph 26 above) but did not mention that according to the mother of Mr I.D. the latter had moved to Kazakhstan on or about 23 September 2007. The applicant was not informed of that decision.
  5. On 26 February 2008 the investigators requested the head of the military investigations department to inform them of the results of the examination of the materials concerning Mr Apti Dalakov’s killing.
  6. On 28 February 2008 the military investigations department replied to the investigators that on 30 January 2008 they had refused to initiate criminal investigation into the killing owing to the lack of corpus delicti in the actions of the FSB officer A.K. who had opened fire on Mr Apti Dalakov. The copy of the decision enclosed with the letter indicated that the decision had been taken on the basis of the explanation given by officer A.K., which was identical to the statement given by him on 5 March 2008 to the investigators in criminal case no. 27520028 (see the paragraph below). Neither the applicant nor his relatives were informed of that decision.
  7. On 28 February and 5 March 2008 respectively the investigators granted FSB officer A.K. victim status in criminal case no. 27520028 and questioned him. The officer stated that on 2 September 2007, as a member of a special combat group, upon the order of the head of the Ingushetia FSB, he had arrived in Karabulak to carry out a special operation aimed at arresting active members of «the Karabulak illegal armed group» Mr Apti Dalakov and Mr I.D., who were suspected of involvement in terrorist acts in Ingushetia. Having arrived at the place of the operation next to the nursery school, the officer had got out of the vehicle, run towards Mr I.D. and Mr Apti Dalakov, and shouted: «On the ground! FSB!» In reply to this warning Mr I.D. had got down on the ground, whereas Mr Apti Dalakov had started running away. The officer had run after him and continued shouting from time to time: «Stop! FSB!» Having understood that Mr Apti Dalakov had no intention of stopping, the officer shouted: «FSB! Stop or I’ll fire!» and then fired once into the air when Mr Apti Dalakov was about ten to fifteen metres away from him. At that point Mr Apti Dalakov had stopped, turned round to face the officer, taken a grenade out of the right pocket of his trousers and tried to pull out the fuse. Having assessed the situation as threatening, the officer opened fire, aiming to hit Mr Apti Dalakov. When the shots were fired Mr Apti Dalakov’s body was flung about in various directions and then he fell to the ground face down. After ascertaining that Mr Apti Dalakov was dead, the officer reported the incident to the head of the operation. The latter ordered the officer and his colleagues from the FSB to cordon off the area and wait for the investigators’ arrival.

 

  1. The applicant’s attempts to initiate a criminal investigation into the circumstances of Mr Apti Dalakov’s death

 

  1. On 5 September 2007 a relative of Mr Apti Dalakov, Mr M.Kh., complained to the Karabulak town prosecutor about the killing of Mr Apti Dalakov and asked for a criminal investigation to be opened into the matter.
  2. On 20 and 29 September 2007 the applicant complained about the killing to the Ingushetia Prosecutor and the Karabulak town prosecutor.
  3. On 10 October 2007 the town prosecutor replied to the applicant that on 2 September 2007 criminal case no. 27520028 had been opened against Mr Apti Dalakov concerning assault on a law-enforcement official and unlawful possession of arms and explosives. The letter did not specify whether any proceedings had been initiated to investigate Mr Apti Dalakov’s killing.
  4. On 27 November 2007 the applicant complained to the town prosecutor that he had not been informed of any decisions in respect of the complaint concerning his nephew’s killing.
  5. On 6 December 2007 the town prosecutor replied to the applicant that the decision to terminate proceedings in criminal case no. 27520028 had been overruled as unlawful and the proceedings resumed on 6 December 2007. The letter did not specify whether any proceedings had been initiated in respect of an investigation of Mr Apti Dalakov’s killing.
  6. On 6 March 2008 the applicant again complained to the Karabulak investigating committee about Mr Apti Dalakov’s killing, and stressed that according to numerous witnesses his nephew had not been armed and had not offered resistance to FSB officers. However, none of those eyewitnesses had been interviewed and no criminal proceedings had been instituted in connection with his death. The applicant further stated that he had in the meantime been provided with the decision of 2 November 2007 and that the town prosecutor had overruled it as unfounded. The applicant requested the investigating department to institute criminal proceedings in connection with the killing and to question the FSB officers who had participated in the arrest of his nephew, the OMON and police officers and other eyewitnesses. He also asked the investigators to grant him victim status in those proceedings. The applicant’s complaint was received by the investigating department on 19 March 2008 but no reply was given to it.
  7. On 14 August 2008 the applicant complained to the Karabulak District Court under Article 125 of the Code of Criminal Procedure about the failure of the investigating department to open a criminal case in connection with Mr Apti Dalakov’s killing and failure to take basic steps to establish the circumstances of the incident. In his complaint the applicant stated, amongst other things, the following:

«…On 2 September 2007… officers of law-enforcement bodies shot and killed my nephew Mr Apti Dalakov, who, according to eye-witnesses, was not armed and did not resist.

I lodged a request with the Ingushetia Prosecutor asking for a criminal case to be opened in connection with the killing. In reply I received the decision to terminate the investigation in criminal case no. 2750028 opened against Mr Apti Dalakov.

The Karabulak Town Prosecutor overruled this decision… I lodged another complaint with the Karabulak Investigating Department in which I requested that a criminal case be opened in order to investigate the killing of Mr Apti Dalakov; witnesses to the incident, in addition to the police officers from the Karabulak Town Police Department and the Ingushetia OMON who had participated in the detention of the FSB officers who had shot Mr Apti Dalakov, be identified and questioned… and victim status in the criminal case be granted to me. This complaint was delivered on 19 March 2008.

According to… the Russian Criminal Procedure Code, my complaint should have served as the reason for opening of a criminal case… a criminal case is opened when there is sufficient evidence that a crime has been committed… and the decision is taken within ten days from the receipt of the complaint…

However, those regulations were not complied with. The investigating authorities received my complaint, but they neither took any appropriate decisions nor informed me thereof. This procedural violation led to the failure to take the other steps I had requested in my complaint.

Witnesses to the incident, who could have confirmed Mr Apti Dalakov’s killing and refuted the allegations that he had resisted arrest, have not been identified or questioned. We ourselves have identified such witnesses, including Mr [M.Ku.], Mr [I.Ma.], and others.

The police officers from the Karabulak Town Police Department and the Ingushetia OMON who had arrested the individuals, who shot Mr Apti Dalakov were not questioned. I was not granted victim status either.

The failure of the investigating authorities to act violates Article 2 of the European Convention of Human Rights…

I request, on the basis of Article 125 of the Russian Criminal Procedure Code that the court…

  1. Declare unlawful the failure of the investigating authorities to initiate a criminal investigation in respect of my complaint, to identify and question witnesses to the killing… and grant me victim status in the proceedings;
  2. Oblige the Karabulak Investigating Committee

(1) to remedy the above breaches;

(2) to open a criminal case in connection with Mr Apti Dalakov’s killing

(3) to grant me victim status in the criminal case

(4) to identify and question witnesses to Mr Apti Dalakov’s killing

(5) to question officers of the Karabulak Town Police Department and the Ingushetia OMON who arrested those involved in Mr Apti Dalakov’s killing…»

According to the Government, the applicant lodged this complaint on 18 August 2008. The incoming mail registration stamp on the copy of the document indicates that this complaint was received on 14 August 2008.

  1. On 18 September 2008 the District Court held a hearing in connection with the applicant’s complaint. According to the transcript of the hearing, both parties were present. During the examination the representative of the investigating authorities submitted that they had transferred the evidence concerning the killing of Mr Apti Dalakov to a military prosecutor’s office. The judge requested that the documents reflecting the transfer be provided for the next hearing, scheduled for 23 September 2008.
  2. On 23 September 2008 the District Court examined and rejected the applicant’s complaint as unsubstantiated. The court reasoned as follows:

«…[the applicant] M.K. Dalakov… requested that his complaint be allowed and the refusal to initiate a criminal investigation into his nephew’s killing be declared unlawful… that the police officers… who had been present at the crime scene be questioned as witnesses, and that more witnesses to the crime, in addition to the FSB officers who had shot Mr A. Dalakov dead, be identified and questioned.

The public prosecutor Mr [A.P.] requested the court to reject the complaint as unsubstantiated. In support of his position he stated that the criminal case related to Mr A. Dalakov’s death had been terminated by the Karabulak Investigating Committee, as the actions of the FSB officers who had carried out the operation in respect of Mr A. Dalakov had been declared lawful. The OMON police officers on whose questioning the applicant insists before the court arrived at the scene later and did not witness Mr A. Dalakov’s killing. No other witnesses were identified.

Having been duly informed of the date and place of the hearing, and in the absence of requests for the examination of the case in their absence, both parties failed to appear at the hearing; this does not preclude the court from examining the complaint on its merits.

The court finds the applicant’s and his lawyer’s allegations unsubstantiated, as they are not properly argued and are not supported by appropriate evidence.

On the basis of the above, under paragraph 5 of Article 125 of the Russian Criminal Procedure Code, the court finds that the complaint of Mr Magomed Dalakov under Article 125 of the Russian Criminal Procedure Code concerning alleged failure of the Karabulak Investigating Committee to act should be rejected…»

  1. According to the Government’s submission, both parties were present during the examination on 18 and 23 September 2008. The applicant, who was represented at the hearing by his lawyer, was provided with a copy of the decision by letter from the court, sent to his address on the same date. The Government provided a copy of that letter without an envelope, bearing the applicant’s address in Karabulak and dated 23 September 2008.
  2. According to the applicant’s submission, on 23 September 2008 no examination of the complaint took place and, therefore, he was not informed of any decisions taken on that date and did not receive the decision by post. The applicant stated that prior to the hearing of 23 September 2008 his lawyer had been informed in person that the hearing had been rescheduled for an unspecified date. Subsequently, the lawyer repeatedly enquired with the court by telephone and in person about the examination of the complaint. In reply to his queries he was assured that he would be apprised of the date and venue of the examination. Neither the applicant nor his lawyer was provided with a copy of the decision of 23 September 2008.
  3. In the applicant’s submission, the court’s decision allegedly taken on 23 September 2008 was backdated, and had in fact been prepared at a later date. In particular, he pointed out that the text of the decision and the transcript of the hearing allegedly held on that date contained inconsistencies. In particular, according to the transcript, both parties, including the applicant’s lawyer, had been present at the hearing and the delivery of the decision by the judge. However, in the text of the decision of 23 September 2008 it was stated, amongst other things, that neither party had appeared at the hearing (see paragraph 42 above).
  4. According to the applicant, on 30 November 2008 his lawyer telephoned the court and was informed that the examination of his complaint had again been rescheduled as the judge had gone on holiday.
  5. On 9 April 2009 the applicant wrote to the military investigating department, asking whether they had returned to the town prosecutor’s office the materials concerning Mr Apti Dalakov’s killing (see paragraph 42 above). No reply was given to that request.
  6. On 16 April 2009 the applicant’s lawyer complained to the Ingushetia Supreme Court. The text of the complaint included the following:

«…M. Dalakov lodged a complaint with the Karabulak District Court… of inaction on the part of the Investigating Committee of Karabulak. The complaint was assigned for examination to Federal Judge Ms [B].

According to Article 125 of the Russian Code of Criminal Procedure, this complaint should have been examined within five days of its receipt. However, this has not yet been done.

I request that you take measures to expedite the examination of the complaint.»

No reply was given to this complaint.

50. From the documents submitted it appears that no criminal proceedings against the FSB officers concerning Mr Apti Dalakov’s killing have been initiated to date.

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