issued by the Registrar of the Court

ECHR 104 (2021)

30.03.2021

Shepherds killed as a result of the unjustified use of lethal force,

no effective investigation

In today’s Chamber judgment¹in the case of Gasangusenov v. Russia (application no. 78019/17) the

European Court of Human Rights held, unanimously, that there had been:

a violation of Article 2 – substantive aspect (right to life) of the European Convention on Human

Rights, and

a violation of Article 2 – procedural aspect (right to life: obligation to conduct an effective

investigation).

The case concerned the killing of the applicant’s two sons, who worked as shepherds, during a

special operation carried out by State agents in August 2016 in Goor-Khindakh, Dagestan (Russia).

It also concerned the ensuing investigation.

The Court found that the applicant’s sons had been killed as a result of the unjustified use of lethal

force, in breach of Article 2 of the Convention. There was no evidence that serious consideration had

been devoted to the planning and carrying out of the operation. In that light, the Court found that it

had not been demonstrated that the lethal force used, which had brought about the applicant’s

sons’ deaths, had been absolutely necessary.

It also found that no effective investigation had been conducted into their killing. The Court held,

under Article 46 (binding force and execution of judgments) of the Convention, that the Government

had to take all necessary and appropriate measures to ensure in the present case that the

procedural requirements of Article 2 were complied with.

Principal facts

The applicant, Murtazaali Magomedovich Gasangusenov, is a Russian national who was born in 1970

and lives in Goor-Khindakh, Dagestan (Russia).

The applicant’s sons, Gasangusen and Nabi Gasangusenov, born in 1997 and 1999 respectively,

worked as shepherds on the Lagadib grazing land, which was situated about 3 to 4 km away from

Goor-Khindakh, a mountain village in Shamilskiy district. On various dates between June and August

2016, several terrorist attacks were carried out by members of illegal armed groups in the area,

including the assassination of a District Court judge on 11 August 2016, the blowing-up of a local

television tower, and the burning down of a school.

On the evening of 23 August 2016, Gasangusen and Nabi Gasangusenov did not return home for

dinner as planned. Early the following morning, their bodies were found about 1 km from the village.

The official information issued by the police in the early hours of 24 August 2016 stated that during a

special operation in the late evening of 23 August shots had been fired at law-enforcement officers

and the criminals had been killed in the return fire. On the same day, a criminal case was opened

against the applicant’s sons for attempted murder of a police officer and trafficking of firearms.

1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,

any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges

considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final

judgment. If the referral request is refused, the Chamber judgment will become final on that day.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.

Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.

On 31 January 2017 the applicant complained to the Investigative Committee and requested that a

criminal case be opened into his sons’ killing. He alleged that his sons’ bodies had been clothed in

jackets that were not their own, that the number of bullet holes in the jackets did not match the

bullet wounds on the bodies and that they had been killed by law-enforcement officers for unknown

reasons. In March 2017, the applicant complained to the District Court, stating that he had not

received a response from the investigating authorities, and, in April 2017, reiterated his request. No

reply was given to those requests.

On 15 November 2017 the investigation into the criminal case against the Gasangusenov brothers

was terminated as it had failed to confirm that they had attacked the law-enforcement officers. A

part of the file was transferred for investigation into their killing. Based on that material, a criminal

case was opened into the killing of Gasangusen and Nabi Gasangusenov.

On 28 November 2017, the applicant was granted victim status and questioned. According to the

applicant, his sons had been killed intentionally under the orders of the head of the police station,

who had wanted to use the situation around the recent terrorist attacks to advance his career. He

claimed that the officer had had his sons killed to show that the local police had been successfully

fighting against the terrorists.

At the time of the application, the investigation was still pending and the perpetrators of the killing

of Nabi and Gasangusen Gasangusenov had not been identified.

Complaints, procedure and composition of the Court

Relying on Article 2 (right to life) and Article 13 (right to an effective remedy) of the European

Convention on Huan Rights, the applicant complained that State agents had killed his sons to pass

them off as members of illegal armed groups operating in the area, that the authorities had failed to

effectively investigate the matter and that the delay in opening a case had been overly long.

The application was lodged with the European Court of Human Rights on 2 November 2017.

Judgment was given by a Chamber of seven judges, composed as follows:

Paul Lemmens (Belgium), President,

Georgios A. Serghides (Cyprus),

Dmitry Dedov (Russia),

Georges Ravarani (Luxembourg),

María Elósegui (Spain),

Darian Pavli (Albania),

Anja Seibert-Fohr (Germany),

and also Milan Blaško, Section Registrar.

Decision of the Court

Article 2

The Court observed that the documents submitted contained no indication of the applicant’s sons’

involvement in any type of criminal activities. It noted that the way the bodies had been found lent

credence to the crime scene having been staged. It observed that the applicant’s allegation that his

sons had been killed by State agents was supported by the material submitted, in particular by a

news report, an official letter confirming that the operation had taken place, and the statement in

the decision to open a criminal case against the brothers. Moreover, it had been corroborated by

statements given by officers in Moscow that had been deployed to assist the local law-enforcement

forces for the special operation, by local police officers and by local residents.

Considering the lack of an alternative version of the events in the Government’s arguments, the

Court found that Gasangusen and Nabi Gasangusenov had been killed during a special operation

carried out by State agents.

Concerning the special operation, the Court noted that no information on the planning of the

operation could be derived from the documents submitted. It seemed that no serious consideration

had been devoted to its planning and carrying out. In that light, the Court found that it had not been

demonstrated that the lethal force used, which had brought about Gasangusen and Nabi

Gasangusenov’s death, had been absolutely necessary.

Accordingly, the Court held that there had been a violation of the substantive aspect of Article 2 of

the Convention.

Regarding the alleged violation of the procedural aspect of Article 2, the Court observed that the

examination of the crime scene had been carried out superficially and that certain important

elements had only been found during a second examination the following day. Throughout the

proceedings, the investigators had taken no steps to clarify a number of key issues. Furthermore,

despite the coherent and consistent allegations of the applicant, and the orders of the domestic

court, the criminal case into the killing of the applicant’s sons had been opened only one year and

three months after the incident and the domestic investigators had failed to give a proper response

to the serious allegations of inappropriate use of lethal force by agents of the State.

The Court concluded that there had been a violation of Article 2 of the Convention in relation to the

effectiveness of the investigation.

Article 13

In view of its findings under Article 2, the Court held that it was unnecessary to examine the

complaint under Article 13 of the Convention.

Article 46

With respect to the failure to investigate, the Court noted that the investigation in the criminal case

into the killing of Gasangusen and Nabi Gasangusenov was still pending at the national level.

However, it was unclear whether any factual findings had been made in the context of the criminal

case and the other relevant proceedings. The Court considered that this investigation should

elucidate the main circumstances of the use of lethal force by the State agents and evaluate their

actions in consideration of all the known facts. It should also secure the next-of-kin’s access to the

key documents in the criminal cases.

The Court therefore held that the Government must take all necessary and appropriate measures to

ensure in the present case that the procedural requirements of Article 2 of the Convention were

complied with.

Just satisfaction (Article 41)

The Court held that Russia was to pay the applicant 120,000 euros (EUR) in respect of non-pecuniary

damage.

The judgment is available only in English.

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