Khayauri and Others v. Russia (Applications nos. 33862/17 and 2 others – see appended list)

A selection of key paragraphs can be found below the judgement.

74.  Thus, from the documents submitted it is apparent that no criminal investigation, other than the pre-investigation inquiry, was officially carried out into the death of Magomed Khayauri, Islam Tachiyev and Artur Karsamauli. Therefore, the Court is bound to assess the circumstances of their killing based on the documents furnished as part of criminal case no. 1200068 and the pre-investigation inquiry, which resulted in the multiple decisions not to initiate a criminal investigation into their death.

77.  In view of the foregoing, and having regard to its previous well‑established case-law in respect of the State’s procedural obligation under Article 2 (see paragraphs 70-71 above), the Court sees no reason to hold otherwise in the present case. It finds that the repeated refusals to open a criminal case into the applicants’ credible allegations of unlawful use of lethal force by the State agents, of which the authorities were promptly made aware, amounted to a failure to carry out an effective investigation as required by Article 2 of the Convention.

78.  There has therefore been a violation of Article 2 of the Convention under its procedural limb.

81.  The Court notes that the special operation was not spontaneous; the FSB officers had waited in ambush for individuals suspected of membership of illegal armed groups (see paragraphs 14, 20 and 41 above). The officers were well-equipped and were intending to arrest the suspects. However, there is nothing in the documents reviewed by the Court to suggest that any serious consideration was devoted at the planning stage of the operation to the possibility that the suspects would try to resist arrest or escape. Furthermore, the documents submitted contain no indication of either chain of command of the officers during the special operation, their physical location during the events or any indication of the roles each of the officers involved played therein and what type of service guns they had been armed with. There is no information on such basic facts as to who participated in the condoning of the area, drove the military vehicles or waited in the ambush. Furthermore, from the statements given by the FSB officers implicated in the incident, it is unclear how many officers participated in the special operation and who exactly returned fire and by whose bullets Magomed Khayauri, Artur Karsamauli or Islam Tachiyev were shot and killed (see paragraphs 20, 41‑42, 47 and 53 above).

82.  The Court further notes that the documents submitted to the Court state that, according to the FSB officers, the officers offered the suspects a chance to surrender. However, in return, Magomed Khayauri, Artur Karsamauli and Islam Tachiyev had taken firearms from the bag and opened fire (see paragraph 12 above), while the fourth person, Mr M.Dz., managed to escape. The forensic examination of the three pistols found at the crime scene showed that none of them had been touched by any of the young men (see paragraph 18 above), and the only other two weapons, the Kalashnikov machine guns, were never tested for fingerprints or biological material (see paragraphs 25-26 above). Therefore, even assuming that the two machine guns had been hidden in the sports bag, and then taken out by Magomed Khayauri, Artur Karsamauli or Islam Tachiyev to shoot at the officers, it is unclear whether and how the three of them could have been able to use the two machine guns (see paragraph 53 above). Furthermore, the implicated officers’ statements concerning a loud-speaker warning made shortly before the shooting are in contradiction with the statements of the witnesses to the incident (see paragraphs 47 and 53 above). Considering the numerous gunshot wounds on the bodies of the three young men (see paragraphs 13 and 22 above), the documents submitted do not show, in the Court’s view, that the officers tried to take any measures to avoid using such intense gunfire and subjecting the lives of the three young men to a high risk of death. Having regard to those facts, the Court finds that it has not been demonstrated that the lethal force used, which brought about Magomed Khayauri, Artur Karsamauli and Islam Tachiyev’s death, was absolutely necessary, as required by Article 2 of the Convention.

83.  In the light of the above, the Court finds that there has accordingly been a violation of the substantive limb of Article 2 of the Convention.