CASE OF GERASIMENKO AND OTHERS v. RUSSIA
Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect)
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
6. The applicants were born in 1990, 1989 and 1990 respectively and live in Moscow. 7. D.E. was a major in the police. He was born in 1977. 8. On 28 November 2008 he was promoted to chief of the Tsaritsino branch of the Moscow Department of the Interior. 9. On the evening of 26 April 2009 D.E. had a birthday party. Shortly after returning home from the venue, he left again. 10. Between 12.30 and 1.20 a.m. on 27 April 2009 D.E. took a taxi to the Ostrov shopping centre on Shipilovskaya Street in Moscow. He was wearing police uniform and was armed with a handgun. 11. Initially, he fired several gunshots at the driver, E., who died of his injuries in hospital. 12. After D.E. got out of the car, he walked between some apartment blocks. Near one of them he saw two people he did not know, Ms S. and Mr K. Without saying anything, he opened fire and shot Ms S. three times and Mr K. twice. After a while he saw Mr L. and shot at him, also without saying a word. Mr L. however managed to run away. 13. D.E. then walked towards the Ostrov shopping centre. As it was open twenty-four hours a day, there were always people inside. D.E. opened fire at a group of people who were near the entrance, firing at least two shots at the first applicant and at least one shot at the second and third applicants. Another person, Ms B., was also wounded. 14. D.E. entered the shopping centre and approached Mr T. and Ms P. Without saying a word, he shot Mr T. in the head. After he fell to the ground, D.E. took Ms P. by the arm, pointed the gun at her head and, holding her hostage, continued moving through the shopping centre. Eventually, Ms P. managed to break free and run away. 15. When he passed a checkout counter, D.E. shot at a cashier, Ms T., who was killed instantly. 16. Staff and customers of the shopping centre tried to hide from D.E. Some of them used the fire exit and found themselves in the service yard of the shopping centre. D.E. followed them and, threatening them with his gun, ordered all the women who were hiding behind some boxes to step forward. One of them, Ms F., was trying to protect her pregnant daughter who was hiding together with her. She obeyed and approached D.E. He then pointed the gun at her head and pushed her towards a wall. He apparently intended to shoot her, but was distracted by a police unit that arrived at the scene. The police ordred him to let the people go, and surrender. D.E. started shooting at the police and Ms F. was able to escape, as were the other people hiding in the service yard. D.E. was subsequently apprehended by the police. 17. In the course of the events D.E. killed two people and wounded several others. 18. The first applicant suffered injuries to his head and body. He had a bullet entrance wound to the side of the face (parotic region) and an exit wound near the nose. He also had concussion and fractures to the walls of the right maxillary sinus and lower jaw. He also had a penetrating wound to the lumbar region, a ruptured spleen, a penetrating wound to the liver and diaphragm ligaments and a foreign body in the mediastinum. 19. The second applicant suffered head wounds. She had a perforating wound to the left cheek and oral cavity with a fractured lower jaw. 20. The third applicant had a non-penetrating wound to the left of the neck, a fractured left shoulder blade and a foreign body in the neck muscles. 21. On 27 April 2009 criminal proceedings were instituted against D.E. on two counts of murder and twenty-six counts of attempted murder in and around the Ostrov shopping centre. 22. On 5 May 2009 D.E. was dismissed from the police with effect from 27 April 2009. 23. On 7 May 2009 the first applicant was granted victim status in the criminal proceedings. 24. On 14 May 2009 D.E.’s mother was questioned. She submitted, in particular, that as a child he had had head injuries. At the age of between eleven and twelve years old he had suffered from severe headaches and throughout his school years he had been under the supervision of a neuropathologist. After the seventh grade he had been transferred to a different school because he would frequently have disagreements with his schoolmates. After the ninth grade he had been exempted from his school examinations on medical advice. 25. Between 25 June and 23 July 2009 a forensic psychological and psychiatric examination of Major D.E. was conducted by three psychiatrists and a psychologist. According to the conclusions set out in report no. 514 of 23 July 2009, D.E. did not suffer from any mental disorder, but had “accentuated” personality traits. The conditions he had suffered as a child and head injuries had led to the development of emotional instability, excitability, anxiety and demonstrative behaviour. This explained the difficulties in his adapting to school life and his behavioural deviations, which required psychiatric help. At the time of committing the offences he was accused of D.E. had not suffered from any temporary psychiatric disorder – that was apparent from the lack of evidence of his being in a psychotic state accompanied by delirium or hallucinations. He was able to understand the meaning of his actions and control them. He was neither a drug addict nor an alcoholic, although at the time of the events he had been in a moderate state of alcohol intoxication, as confirmed by an expert medical examination. 26. The psychologist who participated in the forensic examination stated that after his promotion in December 2008 until the time of the events D.E. had been in a “subjectively complex” situation. This had included an increased volume of work and management of a new team. D.E.’s qualities such as perfectionism, being highly demanding toward himself and others, needing to control all areas of professional activity and intolerance towards colleagues lacking diligence or competence had required, in the given situation, full use of his physical and personal resources. At the same time he had not been as enthusiastic about his new job as he had been about his previous job. Significant limitations on his independence and permanent accountability coupled with a lack of satisfaction from his work had led to emotional tension. D.E. had repeatedly wished to leave his job, but had felt responsibility for his duties and towards his subordinates. He had felt exhausted and had asked for leave, which his superiors had not granted him at the time. A complicated relationship with his wife had constituted another source of frustration. Furthermore, news of his direct supervisor leaving his job had constituted an additional traumatic factor, causing feelings of confusion unusual for D.E. The evening before the events D.E. had had his birthday party, which he had organised in the hope that he could relax in the company of his family and friends. However, on the morning of the party he had been busy at work and after leaving for the day, had expected to be called back. He had therefore been in a state of emotional tension. The fact that his wife and her father had been late for the party and the subsequent strained conversation he had had with her, coupled with his work-related anxiety and the feeling that the party had not gone as planned, had amplified the accumulated emotional tension and exhaustion. At the time of committing the offences D.E. had not been in an emotionally disturbed state. 27. In October 2009 (the exact date is illegible) the second applicant was granted victim status in the criminal proceedings. 28. On an unspecified date the third applicant was also granted victim status in the criminal proceedings. 29. On 19 February 2010 the Moscow City Court convicted D.E. of two murders, twenty-two counts of attempted murder, including the attempted murder of the applicants and law-enforcement officials, and the unlawful use of firearms. He was sentenced to life imprisonment. The court also stripped him of the rank of major. 30. When questioned in court D.E. pleaded partially guilty. He submitted that he had no recollection of the events and could not explain where and how he had come into possession of the handgun or cartridges. However, he did recognise himself on the footage of the CCTV at the shopping centre and therefore admitted that he had killed a man and tortured a woman, although he could not explain why he had done so. He pleaded not guilty with regard to all the other charges. 31. The court questioned numerous witnesses, who confirmed the account of events given in the preceding paragraphs. In particular, D.E.’s wife submitted that on returning from his birthday party he had behaved strangely. After he had left, she had called his parents and they had started to search for him. Police officers F. and Ya., who had apprehended D.E. at the Ostrov shopping centre, submitted that when they had asked him why he had done it, he had responded that “[you] should live [your] life in such a way that [you] would not want to live it again”. According to police officer Ya., D.E. also said that if he had had a machine gun “[it] would have been more fun” and, in response to a question about where he had got the firearms, he responded that, being police officers, they should know. 32. The court also noted that D.E. had had a 1968 Makarov ShI 3192 handgun and at least thirty-three cartridges. It further referred to information provided by the Tula Cartridge Factory on 26 August 2009 to the effect that the cartridges used by D.E. had been manufactured at the factory in 2002 and 2004. It had supplied cartridges to, in particular, the Moscow Department of the Interior. There had been no instances of cartridge theft reported. The court also referred to information provided by the Moscow Department of the Interior to the effect that the handgun used by D.E. had been reported stolen from the arms store of the North Caucasus Department of the Interior for the Rostov Region. It also referred to a judgment issued by the Proletarskiy District Court of Rostov-on-Don on 19 March 2001 convicting two officials of the theft of 128 handguns from that arms store in the period between June 1998 and April to May 2000, which included the handgun used by D.E. 33. According to the Government, on 23 March 2010 a criminal investigation into arms trafficking was instituted under Article 22 of the Criminal Code with respect to the sale of the handgun and ammunition to D.E. However, it was subsequently suspended as the culprit could not be identified. 34. On 8 June 2010 the Supreme Court of Russia upheld D.E.’s conviction and sentence on appeal. 35. On 17 September 2009 M., an investigator from the Investigative Committee at the Prosecutor’s Office of the Russian Federation, addressed the Minister of the Interior with a recommendation on measures to be taken with a view to rectifying the circumstances that had been conducive to the crime being committed. The recommendation noted that according to the forensic psychiatric examination, D.E. had been found to be of sound mind. However, since childhood he had been under the supervision of a neuropathologist on account of his psycho-emotional instability, but this had not been taken into account by the military medical panel which had found him fit to serve in the police. In the course of the psychological examination it had been established that one of the reasons for his psychologically traumatic situation had been his promotion to the position of chief of the Tsaritsino branch of the Moscow Department of the Interior. Referring to the findings of the forensic examination (see paragraph 26 above), the recommendation mentioned that D.E. had not been as interested and enthusiastic about his new duties as he had been about his previous work in the criminal police. Significant limitations on his independence and permanent accountability together with a lack of satisfaction from his work had led to emotional tension. 36. The recommendation went on to say that on 14 November 2008 D.E. had undergone an appraisal. The Appraisal Board had decided that he corresponded to the position he held and considered his promotion a possibility. However, the investigation established that D.E. had not been fit for the position of chief of the Tsaritsino branch of the Moscow Department of the Interior due to his moral and professional qualities. In particular, he had a poor knowledge of police service in the domain of public security and was irritable with his subordinates. The Appraisal Board had therefore had a very perfunctory attitude towards its duties, and the appraisal had not corresponded to the objectives set by the applicable regulations. Improper performance of duties by staff members of the human resources services of the agencies of the interior and their perfunctory attitude towards recruitment and the promotion of staff had led to persons unfit due to their personal and professional qualities being promoted to senior positions. Furthermore, the Ministry of the Interior had failed to conduct explanatory work with its staff to ensure respect for the rule of law, despite its functioning being based precisely on the principles of respect for human rights and humanism. The actions of D.E. had thus discredited the police. 37. The recommendation concluded that the above-mentioned failures on the part of the agencies of the interior had contributed to D.E committing serious crimes. It advised that measures should be taken aimed at their rectification. 38. On 19 February 2010, the date D.E. was convicted, the Moscow City Court also issued a special ruling. It stated that in the course of the trial it had been established that in his childhood D.E. had been treated for conditions related to mental disorders and disorders of the central nervous system in medical institutions of agencies of the interior. However, those circumstances had not been taken into account when D.E. had been accepted to serve in the police and subsequently promoted to chief of the Tsaritsino branch of the Moscow Department of the Interior, even though the relevant medical data had been available at the institutions that provided medical care to the staff of the agencies of the interior. There had thus been a breach of section 19 of the Police Act, sections 130 and 131 of the Order of the Ministry of the Interior of 14 July 2004 and section 9.7 of the Order of the Ministry of the Interior of 14 December 1999. 39. Furthermore, the court noted that in the course of the trial it had been established that when committing the offence D.E. had used cartridges that had been manufactured in the Tula Cartridge Factory which had supplied cartridges to, in particular, the Moscow Department of the Interior. According to information submitted by the factory, no instances of cartridge theft were reported. The court thus concluded that, while holding the position of chief of the Tsaritsino branch of the Moscow Department of the Interior, D.E. had obtained the cartridges in breach of the Instruction concerning the storage of firearms established by Order of the Ministry of the Interior no. 13 of 12 January 2009 and had later used them for committing particularly serious offences. 40. Having regard to the irregularities in the functioning of the Ministry of the Interior which had contributed to the offences committed by D.E., the court ruled that it would draw the attention of the Minister of the Interior to the said irregularities and invite him to take measures aimed at their rectification. 41. The first and second applicants sued D.E. for damages. The first applicant claimed compensation for medical expenses in the amount of 114,609 roubles (RUB), and the second applicant in the amount of RUB 27,631. Each applicant also claimed RUB 2,000,000 as compensation for non-pecuniary damage. 42. On 31 July 2012 the Nagatinskiy District Court of Moscow partially allowed the claims. The court established that D.E. had been responsible for causing injuries to the first and second applicants. The court awarded RUB 19,980 (approximately 500 euros (EUR)) to the first applicant and RUB 27,631 (approximately EUR 691) to the second applicant for pecuniary damage. It stated, in particular, that whereas the first applicant’s medical expenses in the amount of RUB 19,980 had been necessarily incurred, he had also claimed RUB 94,629 in respect of surgery he would have to undergo in order to extract a bullet from his anterior mediastinum. However, according to the forensic expert examination conducted, such surgery was not recommended since the bullet was separated from the tissue and did not pose a danger to the first applicant’s health, whereas any attempt to extract it might lead to unexpected complications. Having regard to the defendant’s financial situation and making its assessment on an equitable basis, the court also awarded RUB 350,000 (approximately EUR 8,750) to the first applicant and RUB 250,000 (approximately EUR 6,250) to the second applicant for non-pecuniary damage. 43. On 4 December 2012 the Moscow City Court upheld the judgment on appeal. 44. On an unspecified date the first and second applicants instituted proceedings against the Ministry of the Finance, the Federal Treasury and the Moscow Department of the Finance for damages, arguing that they had suffered injuries as a result of the unlawful actions of a State official. D.E. participated in the proceedings as a third party. 45. On 29 July 2009 the Nagatinskiy District Court of Moscow dismissed the first applicant’s claim. The court stated that under Articles 52 and 53 of the Constitution and Articles 1064 § 1 and 1069 of the Civil Code, the State was liable for the unlawful actions of a State official performed in the course of his duties. However, if a State official caused damage as a result of activities unrelated to exercising the duties of the State service, he was liable under Article 1064 § 1 of the Civil Code. The court found that in the case at hand D.E.’s unlawful actions that had caused damage to the first applicant had taken place between 12.30 and 1.20 a.m. at the Ostrov shopping centre, outside D.E.’s working hours and the territorial jurisdiction of the Tsaritsino branch of the Moscow Department of the Interior. They had therefore been unrelated to his duties as a State official. The fact that at the relevant time he had held the position of chief of the Tsaritsino branch of the Moscow Department of the Interior and had had the rank of major did not constitute grounds for the State’s liability under Article 1069 of the Civil Code, as it had been established that D.E. had caused damage as a result of activities unrelated to the duties of his service. The court also dismissed the first applicant’s arguments that the State should be held liable for the damage because (i) at the time of the events D.E. had been dressed in police uniform; (ii) he had used cartridges that had belonged to the Tsaritsino branch of the Moscow Department of the Interior; (iii) under Section 18 of the Police Act a police officer carried out his or her duties irrespective of the time, place or his or her position; and (iv) D.E. had been dismissed from service for discrediting the police. The court held that under section 18 of the Police Act, as a general rule a police officer carried out his or her duties taking into account his or her position, duty hours and whereabouts. Exceptions to that rule were provided in section 18(3) and (4) and concerned instances where a police officer had to take urgent measures to provide assistance to victims of offences, save lives, prevent a crime being committed or apprehend a person suspected of committing an offence. In such cases a police officer had to perform his or her duties irrespective of his or her position, duty hours and whereabouts. However, this was not the situation at hand and therefore D.E. had not been acting in the exercise of his State duties and there were no grounds to hold the State liable for his actions. The fact that he had been wearing police uniform and had used cartridges that had belonged to the Tsaritsino branch of the Moscow Department of the Interior had no bearing. The fact that D.E. had been dismissed for discrediting the police meant that his actions had been incompatible with the status of a police officer, but not that he had performed the actions that had caused damage to the first applicant in the course of his duties. 46. On 6 October 2009 the Moscow City Court upheld the judgment. It noted that there was no evidence that would unequivocally confirm that the actions in question had been performed by D.E. in the course of his duties as a civil servant. 47. On 23 September 2009 the Nagatinskiy District Court of Moscow dismissed the second applicant’s claim. The court’s reasoning was identical to that in its judgment of 29 July 2009 in respect of the first applicant’s claim. 48. On 1 December 2009 the Moscow City Court upheld the judgment. As in its decision of 6 October 2009, it noted that there was no evidence that would unequivocally confirm that the actions in question had been performed by D.E. in the course of his duties as a civil servant. 49. Subsequently, having regard to the special ruling of the Moscow City Court of 19 February 2010, the first and second applicants applied for the civil proceedings to be reopened in the light of newly discovered circumstances. 50. On 9 April 2010 the Nagatinskiy District Court of Moscow dismissed their requests in two separate rulings. It held that there were no significant new circumstances that would warrant reopening the proceedings. 51. On 15 November 2010 the third applicant underwent a polygraph test to assess her perception of the police officers after the events of 27 April 2009. According to the results of the test, on 27 April 2009 she had taken D.E. for a police officer and, as a result of the events, had developed feelings of fear and apprehension towards police officers. 52. Between 19 November and 5 December 2010 an expert psychological examination was conducted with a view to establishing how the fact that at the time of the events D.E. had been wearing police uniform had affected the third applicant’s psychological state. According to the results of the examination, police uniform affects a person’s behaviour as in general people tend to display loyalty and obedience towards symbols of authority due to the latter’s legitimacy and conventionality and their fear of reprisal in the event of their refusal to obey. The fact that the perpetrator had been wearing police uniform had undoubtedly affected the third applicant’s behaviour and psychological state and had limited her ability to choose a behavioural pattern aimed at protecting her life and health. At the time of the examination the third applicant felt an uncontrollable fear of officials wearing police uniform. When she saw one she felt anxiety, apprehension and panic. There was a direct connection between the events and the third applicant’s psychological state characterised by depression, emotional tension and instability, negative feelings, the tendency to avoid new experiences, a pessimistic outlook on life and a change in moral values. 53. On 29 September 2011 the third applicant instituted proceedings against the Ministry of Finance for damages. She argued that damage had been caused as a result of a police officer’s unlawful exercise of his powers. She argued, in particular, that (i) D.E. had used firearms that he had obtained in the course of his service in the police; (ii) any judicial decision recovering damages from D.E. would remain unenforced since, being convicted to life imprisonment, he would have no sources of income and therefore no assets to recover the judgment debt from; (iii) the polygraph test had proven that on the night of the events the third applicant had taken D.E. for a police officer; and (iv) according to the results of the expert psychological examination, the fact that D.E. had been wearing police uniform had affected the third applicant, rendering her defence difficult. 54. On 7 December 2012 the Tverskoy District Court of Moscow dismissed the claim. Relying on Articles 150, 151, 1064 § 1 and 1069 of the Civil Code and referring to D.E.’s conviction, the court found no evidence that damage had been caused to the third applicant by the unlawful actions of a law-enforcement officer. The court found that the claim had been brought against the wrong defendant and that it should have been brought against D.E. It dismissed the argument that any judgment against D.E. would remain unenforced as speculative. The third applicant’s reference to the fact that D.E. had used cartridges that had belonged to the Moscow Department of the Interior was also dismissed as “being based on a wrong assessment of the facts established by the court”. The court also stated that the third applicant’s personal perception of the perpetrator dressed in police uniform did not constitute grounds for allowing the claim. It further noted that the reference to the Court’s case-law in the statement of claim constituted an arbitrary interpretation of judicial decisions irrelevant to the case. 55. On 16 April 2012 the Moscow City Court upheld the judgment on appeal.