CASE OF NAGMETOV v. RUSSIA
Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
András Sajó;Dmitry Dedov;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
5. The applicant was born in 1949 and lives in Makhachkala, Republic of Dagestan, Russia. 6. 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. 7. 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. 8. 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. 9. A forensic expert examined the deceased’s body and extracted the objects that killed him. 10. 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. 11. 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. 2. ... 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.” 12. 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 testshooting 23 mm canisters with special gases”. 13. On an unspecified date, a number of carbines used by officers of the special mobile unit on 25 April 2006 were seized. 14. 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. 15. 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. 16. 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.” 17. Later on, the above-mentioned cases were joined to be investigated together. 18. 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 ... 2. ... 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 ... 5. 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 ... 6. ... 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 ...” 19. 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. 20. 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”. 21. On 26 February 2007 the investigating authority suspended the investigation. 22. 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.” 23. On 14 January 2008 the Supreme Court of the Republic of Dagestan upheld the judgment. 24. 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”. 25. On an unspecified date, the applicant became aware that the evidence extracted from the body of his son had been lost. 26. In November 2009 the applicant requested that the authorities commission an additional ballistics report and complained about the loss of the evidence. 27. 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. 28. 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. 29. On 16 January 2010 the investigator again suspended the investigation. 30. 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.” 31. 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. 32. 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].” 33. The applicant did not challenge this decision.