I correctly predicted that there was a violation of human rights in SHIRVANIYEV v. RUSSIA.
Information
- Judgment date: 2022-06-21
- Communication date: 2018-09-24
- Application number(s): 22470/18
- Country: RUS
- Relevant ECHR article(s): 2, 2-1, 13
- Conclusion:
Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect) - Result: Violation SEE FINAL JUDGMENT
JURI Prediction
- Probability: 0.6786
- Prediction: Violation
Consistent
Legend
Communication text used for prediction
The applicant, Mr Kuri Shirvaniyev, is a Russian national, who was born in 1969 and lives in Selmentauzen, the Vedeno district in the Chechen Republic.
He is represented before the Court by lawyers of Human Rights Centre Memorial.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A.
The circumstances of the case 1.
Wounding of the applicant and its consequences for his health At about 9.40 a.m. on 31 May 2016 the applicant, his son Movsur Shirvaniyev and Mr A.Kh.
went from their village of Selmentauzen to the pasture where their cattle were grazing.
The applicant had an officially registered double-barrelled gun, food and gasoline for the house on the pasture.
According to the applicant, there was neither special regime of counterterrorist operation in force in the area at the time, nor were he or other local residents informed of such an operation taking place in the vicinity of their village.
In about 2 km from the village, from a distance of 200-300 metres, the men saw a serviceman in military uniform with an automatic gun who was not showing signals or shouting any warnings.
The three villagers kept walking when the serviceman suddenly opened gunfire at them.
The applicant, his son and Mr A.Kh.
fell on the ground.
One bullet hit the applicant in the stomach.
Then a group of servicemen ordered the three men to get up and approach them with hands up.
The applicant was wounded, stayed on the ground, whereas his son and Mr A.Kh.
followed the order.
The applicant’s son shouted that his father had been wounded.
In reply, one of the servicemen had ordered him to shut up and hit him in the head with the butt of his automatic gun.
After that the servicemen called for a helicopter, which took the applicant to the 357th medical battalion of military unit no.
6788 in Grozny (the military hospital).
Then the servicemen took the applicant’s son and Mr A.Kh.to the military unit stationed in the vicinity of Selmentauzen and released a couple of hours later.
No charges were brought up against either the applicant, his son or Mr A.Kh.
As a result of the gunshot wound, the applicant received grave injuries to the abdomen.
On 31 May 2016 he was hospitalised and operated on at the military hospital.
On 2 June 2016 he was transferred to intensive care unit at the Republican Clinical Hospital in Grozny (the hospital), where he stayed until 11 July 2016 and underwent five more surgeries on the bowels.
Between 11 and 20 July 2016 he stayed at the multi-trauma unit.
On 20 July 2016 he was discharged.
Between 28 November and 8 December 2016 the applicant was hospitalised again due to complications of the wound.
Then on 16 January 2017 he was taken to the Republican Emergency Care Hospital in the neighbouring Republic of North Ossetia-Alania, where on 19 January 2017 he was operated on again and discharged on 24 January 2017.
On 2 February 2017, the applicant was hospitalised again due to osteomyelitis which occurred as a result of the gunshot wound.
On 3 February 2017, the applicant was officially classified as suffering from the 2nd degree of disability.
2.
Attempts to initiate a criminal investigation into the shooting On 1 June 2016 the applicant’s wife, Ms B.D., complained of the incident to the Vedeno military prosecutor’s office and then to a number of other law-enforcement agencies, including the Chief Military Prosecutor and the Investigative Committee.
She stated that the servicemen had opened gunfire at her husband without any warning and heavily wounded him.
She requested an investigation be initiated.
On 9 June 2016 the investigators from the 506th military investigations department of the Investigative Committee in the Southern Military Circuit (the military investigators) commissioned the applicant’s forensic examination.
The examination established that as a result of the gunshot wound he had sustained grave injuries.
On six occasions, that is on 1 July and then on 2 and 29 August, 13 October, 23 November and 26 December 2016 the military investigators refused to initiate a criminal investigation into the circumstances of the applicant’s wounding the lack of corpus delicti in the actions of the military servicemen.
On six occasions, that is on 4 July, 9 August, 12 September, 8 November and 7 December 2016 and then on 7 April 2017 the supervising authorities overruled the refusals as unlawful and unsubstantiated, and ordered that a new preliminary inquiry be carried out.
According to the applicant, the military investigators did not inform him of the refusals and the decisions to overrule them in a timely manner.
On 16 August and 21 September 2016 and then on 17 January 2017 the applicant appealed the refusals of 2 and 29 August and 13 October 2016 respectively to the Grozny Military Garrison Court (the military court).
On 19 August and 26 September 2016 and then 23 January 2017 the court left the applicant’s appeals without examination as the impugned refusals had already been overruled by the supervisors (see above).
On 28 April 2017 the investigators issued the last refusal to open a criminal case in connection with the applicant’s wounding on 31 May 2016 for the lack of corpus delicti.
According to the decision, at the material time a counterterrorist operation had been in progress in the Vedeno district and local population, including the applicant, his son and Mr A.Kh.
had been warned about it in advance.
Military unit no.
6607 from the 27th Siberian regional command of the internal troops carried out that operation.
According to the servicemen involved in the incident, the applicant and his companions had not obeyed the warnings to stop and to put their hands up, instead they had started running away to the forest.
Then, warrant officer A.S. had made several warning shots in the air, but the applicant and his companions had continued to run away.
Then six servicemen that is, warrant officer A.S., Major A.L., Sergeants A.K.
and M.K, Lieutenant A.B.
and Captain A.K., had made between two and seven shots each in the direction of the applicant, his son and Mr A.Kh.
As a result, the applicant received the gunshot wound to the stomach, causing damage to his health, which later had been classified as grave.
The decision was based on the statements of eight military officers involved in the incident, the forensic expert who examined the applicant’s wound, two police officers who had arrived at the scene of the incident, the district police officer S.B., according to whom, a fellow villager had passed on the warning of the counterterrorist operation to the applicant, his son and Mr A.Kh., and a statement of a local resident Mr A.D.
The decision also stated that according to the statements given by the applicant, his son and Mr A.Kh.
to the investigators, the servicemen had opened gunfire without any warning.
The applicant appealed against the refusal of 28 April 2017 to the military court.
He stated, amongst other things, that there was no official information that at the time of the incident a counterterrorist operation had been taking place, and that the servicemen had opened unprovoked fire aiming to kill him, as otherwise, they would have shot at the feet and not in the stomach.
The applciant requested that the refusal to open a criminal case be overruled and a fully-fledged investigation be initiated into the events.
On 14 September 2017 the military court rejected the appeal having found that the refusal to open a criminal case was duly substantiated.
The applicant appealed the above decision to the North Caucuses Circuit Military Court.
On 9 November 2017 the court rejected the appeal.
B.
Relevant domestic law and international law and practice Tagayeva and Others v. Russia, nos.
26562/07 and 6 others, §§ 457-72, 13 April 2017.
COMPLAINTS The applicant complains under Article 2 of the Convention that he was heavily wounded as a result of unprovoked use by State agents of lethal force and that the domestic authorities failed to investigate the matter.
Under Article 13 of the Convention, the applicant complains that he had no effective domestic remedies against the violations alleged.
Judgment
THIRD SECTIONCASE OF SHIRVANIYEV v. RUSSIA
(Application no. 22470/18)
JUDGMENT
STRASBOURG
21 June 2022
This judgment is final but it may be subject to editorial revision. In the case of Shirvaniyev v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Georgios A. Serghides, President, Anja Seibert-Fohr, Peeter Roosma, judges,and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 22470/18) 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”) on 9 May 2018 by a Russian national, Mr Kuri Shirvaniyev, born in 1969 and living in Selmentauzen (“the applicant”) who was represented by NGO Memorial Human Rights Centre in Moscow;
the decision to give notice of the application to the Russian Government (“the Government”), initially represented by Mr G. Matyushkin and Mr M. Galperin, former Representatives of the Russian Federation to the European Court of Human Rights, and later by their successor in this office, Mr M. Vinogradov;
the parties’ observations;
Having deliberated in private on 31 May 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT-MATTER OF THE CASE
1. The case concerns the applicant’s wounding during a counterterrorist operation in Chechnya and the authorities’ failure to investigate the matter. 2. On 31 May 2016 the applicant was tending to his cattle at a pasture. Without any warnings of an ongoing special operation, a group of servicemen opened gunfire at him and severely wounded him. Between July 2016 and April 2017 the authorities, having carried out a preliminary inquiry into the matter, repeatedly refused to open a criminal case for the lack of corpus delicti. These decisions were repeatedly overruled by the investigators’ superiors as unsubstantiated due to being based on the statements of seven out of thirteen implicated servicemen, while the other six officers had not been interviewed at all; the statements given had not been verified and key elements of the incidents, such as the number of civilians and servicemen present at scene during the shooting and provenance of the bullets that had wounded the applicant, remained unelucidated. 3. According to the Government, the use of lethal force against the applicant was justified and the ensuing inquiry complied with the Convention standards of an effective investigation. THE COURT’S ASSESSMENT
ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
4. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 5. The relevant principles concerning the State’s substantive and procedural obligations under Article 2 of the Convention have been summarised respectively in Tagayeva and Others v. Russia, nos. 26562/07 and 6 others, §§ 562-63 and 601, 13 April 2017, and Armani Da Silva v. the United Kingdom ([GC], no. 5878/08, §§ 229-39, 30 March 2016. 6. Assessing the compliance with the procedural obligation, the Court observes that the documents submitted and undisputed by the parties show that no fully-fledged criminal investigation into the applicant’s wounding was carried out, despite the fact that the information collected by the inquiry contained clear indications of the conflicting evidence concerning the circumstances of the incident. No timely steps were taken to elucidate those contradictions; the repeated decisions of the investigators’ superiors to overrule the refusals to open a criminal case were indicative of the inquiry’s inability to obtain and secure key evidence. The implicated servicemen gave “an explanation” to the inquiry, which did not commit them in the same way as it would have in the context of an opened criminal case and did not entail the necessary safeguards inherent in an effective criminal investigation, such as liability for perjury. 7. The Court has already found that as regards serious allegations concerning use of lethal force under Article 2 of the Convention, an inquiry alone is not capable of leading to the punishment of those responsible, if not followed by a fully-fledged investigation, especially where there are conflicting versions of events, as in the present case (see Abdulkhanov v. Russia, no. 35012/10, § 88, 6 July 2021, with further references). 8. Therefore, the Court concludes that there has been a violation of Article 2 of the Convention under its procedural head. 9. As for the justification of the use of lethal force under the substantive obligation of Article 2 of the Convention, the information available does not suggest that resorting to lethal force against the applicant was absolutely necessary and that the actions of the authorities in respect of the planning, control and execution of the operation were sufficient to safeguard the life of the applicant (see Dalakov v. Russia, no. 35152/09, § 97, 16 February 2016). Most importantly, the exact circumstances under which fire had been opened at the applicant had not been elucidated; in the absence of such basic information the Court is unable to subscribe to the position that the use of lethal force had been justified, as the Government submit. 10. In such circumstances, the Court finds that it has not been demonstrated that the lethal force used, which brought about the applicant’s wounding, was absolutely necessary, as required by Article 2 of the Convention. 11. There has accordingly been a violation of Article 2 of the Convention under its substantive head. APPLICATION OF ARTICLE 41 OF THE CONVENTION
12. The applicant claimed 75,615 euros (EUR) in respect of pecuniary damage. No documents substantiating the claim were enclosed. As for non‐pecuniary damage, he left the determination of its amount to the Court. He also claimed EUR 9,000 for costs and expenses. 13. The Government submitted that the claims were excessive. 14. Given the lack of details substantiating the claim, the Court rejects the claim for pecuniary damage. As for non-pecuniary damage, it awards the applicant EUR 40,000 plus any tax chargeable on that amount. 15. The Court also awards the applicant EUR 2,500, together with any tax that may be chargeable to him, in respect of costs and expenses. The net award to be paid into the representatives’ bank account as indicated by the representatives. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 40,000 (forty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts 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 21 June 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Olga Chernishova Georgios A. Serghides Deputy Registrar President
THIRD SECTION
CASE OF SHIRVANIYEV v. RUSSIA
(Application no. 22470/18)
JUDGMENT
STRASBOURG
21 June 2022
This judgment is final but it may be subject to editorial revision. In the case of Shirvaniyev v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Georgios A. Serghides, President, Anja Seibert-Fohr, Peeter Roosma, judges,and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 22470/18) 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”) on 9 May 2018 by a Russian national, Mr Kuri Shirvaniyev, born in 1969 and living in Selmentauzen (“the applicant”) who was represented by NGO Memorial Human Rights Centre in Moscow;
the decision to give notice of the application to the Russian Government (“the Government”), initially represented by Mr G. Matyushkin and Mr M. Galperin, former Representatives of the Russian Federation to the European Court of Human Rights, and later by their successor in this office, Mr M. Vinogradov;
the parties’ observations;
Having deliberated in private on 31 May 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT-MATTER OF THE CASE
1. The case concerns the applicant’s wounding during a counterterrorist operation in Chechnya and the authorities’ failure to investigate the matter. 2. On 31 May 2016 the applicant was tending to his cattle at a pasture. Without any warnings of an ongoing special operation, a group of servicemen opened gunfire at him and severely wounded him. Between July 2016 and April 2017 the authorities, having carried out a preliminary inquiry into the matter, repeatedly refused to open a criminal case for the lack of corpus delicti. These decisions were repeatedly overruled by the investigators’ superiors as unsubstantiated due to being based on the statements of seven out of thirteen implicated servicemen, while the other six officers had not been interviewed at all; the statements given had not been verified and key elements of the incidents, such as the number of civilians and servicemen present at scene during the shooting and provenance of the bullets that had wounded the applicant, remained unelucidated. 3. According to the Government, the use of lethal force against the applicant was justified and the ensuing inquiry complied with the Convention standards of an effective investigation. THE COURT’S ASSESSMENT
ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
4. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 5. The relevant principles concerning the State’s substantive and procedural obligations under Article 2 of the Convention have been summarised respectively in Tagayeva and Others v. Russia, nos. 26562/07 and 6 others, §§ 562-63 and 601, 13 April 2017, and Armani Da Silva v. the United Kingdom ([GC], no. 5878/08, §§ 229-39, 30 March 2016. 6. Assessing the compliance with the procedural obligation, the Court observes that the documents submitted and undisputed by the parties show that no fully-fledged criminal investigation into the applicant’s wounding was carried out, despite the fact that the information collected by the inquiry contained clear indications of the conflicting evidence concerning the circumstances of the incident. No timely steps were taken to elucidate those contradictions; the repeated decisions of the investigators’ superiors to overrule the refusals to open a criminal case were indicative of the inquiry’s inability to obtain and secure key evidence. The implicated servicemen gave “an explanation” to the inquiry, which did not commit them in the same way as it would have in the context of an opened criminal case and did not entail the necessary safeguards inherent in an effective criminal investigation, such as liability for perjury. 7. The Court has already found that as regards serious allegations concerning use of lethal force under Article 2 of the Convention, an inquiry alone is not capable of leading to the punishment of those responsible, if not followed by a fully-fledged investigation, especially where there are conflicting versions of events, as in the present case (see Abdulkhanov v. Russia, no. 35012/10, § 88, 6 July 2021, with further references). 8. Therefore, the Court concludes that there has been a violation of Article 2 of the Convention under its procedural head. 9. As for the justification of the use of lethal force under the substantive obligation of Article 2 of the Convention, the information available does not suggest that resorting to lethal force against the applicant was absolutely necessary and that the actions of the authorities in respect of the planning, control and execution of the operation were sufficient to safeguard the life of the applicant (see Dalakov v. Russia, no. 35152/09, § 97, 16 February 2016). Most importantly, the exact circumstances under which fire had been opened at the applicant had not been elucidated; in the absence of such basic information the Court is unable to subscribe to the position that the use of lethal force had been justified, as the Government submit. 10. In such circumstances, the Court finds that it has not been demonstrated that the lethal force used, which brought about the applicant’s wounding, was absolutely necessary, as required by Article 2 of the Convention. 11. There has accordingly been a violation of Article 2 of the Convention under its substantive head. APPLICATION OF ARTICLE 41 OF THE CONVENTION
12. The applicant claimed 75,615 euros (EUR) in respect of pecuniary damage. No documents substantiating the claim were enclosed. As for non‐pecuniary damage, he left the determination of its amount to the Court. He also claimed EUR 9,000 for costs and expenses. 13. The Government submitted that the claims were excessive. 14. Given the lack of details substantiating the claim, the Court rejects the claim for pecuniary damage. As for non-pecuniary damage, it awards the applicant EUR 40,000 plus any tax chargeable on that amount. 15. The Court also awards the applicant EUR 2,500, together with any tax that may be chargeable to him, in respect of costs and expenses. The net award to be paid into the representatives’ bank account as indicated by the representatives. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 40,000 (forty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts 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 21 June 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Olga Chernishova Georgios A. Serghides Deputy Registrar President