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PUTINTSEVA v. RUSSIA - 33498/04 [2012] ECHR 820 (10 May 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/820.html
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[2012] ECHR 820
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FIRST
SECTION
CASE OF PUTINTSEVA v. RUSSIA
(Application
no. 33498/04)
JUDGMENT
STRASBOURG
10
May 2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Putintseva v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer
Lorenzen,
Elisabeth Steiner,
Khanlar
Hajiyev,
Linos-Alexandre Sicilianos,
Erik Møse,
judges,
and André Wampach,
Deputy Section
Registrar,
Having
deliberated in private on 17 April 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 33498/04) 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”) by a Russian national, Ms Svetlana Valeryevna
Putintseva (“the applicant”), on 3 September 2004.
The
applicant was represented by Ms T. Nikobova and then by
Ms T. Sladkova, lawyers practising in Moscow. The Russian
Government (“the Government”) were represented by Mr G.
Matyushkin, Representative of the Russian Federation at the European
Court of Human Rights.
The
applicant alleged, in particular, that her son had been killed during
his military service and that the authorities’ response to the
incident had been inadequate.
On
16 September 2008 the application was communicated to the Government.
It was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1964 and lives in the town of Beloyarskiy in
the Tyumen Region.
On
8 June 2001 the applicant’s son, Mr Valeriy Putintsev, was
called up for two years of mandatory military service. He was
assigned to serve in military unit no. 39982 in the town of Uzhur.
On
the evening of 9 February 2002 Mr Putintsev left the military unit
without permission. Three days later he was arrested in a local
village and his detention for ten days on a charge of absence without
leave was authorised. He was placed in a disciplinary cell at the
Uzhur Town Garrison.
On
14 February 2002 junior sergeant L. took up convoy duty in the
detention unit of the Uzhur Town Garrison. On the following day, on
an order from the commandant of the garrison, junior sergeant L.
attempted to search the applicant’s son. Mr Putintsev
headbutted the junior sergeant, hurting Mr L.’s lip. Mr L. did
not fight back. In view of the incident, the commandant ordered a
medical examination of the applicant’s son and junior sergeant
L. While escorting the applicant’s son from a military hospital
back to the garrison’s detention unit, Mr L., in an attempt to
prevent the applicant’s son from escaping, fired at him and
wounded him in the right buttock. On the morning of 27 February 2002
the applicant’s son died from the gunshot wound, which had
caused injuries to internal organs and extensive bleeding.
The
commandant of the Uzhur Town Garrison immediately reported the
shooting to the military prosecutor’s office of military unit
no. 56681. A criminal investigation was opened into the reported
incident. On 15 February 2002, at 3.10 p.m., an acting assistant
to the military prosecutor examined the scene of the incident. Junior
sergeant L. participated as a witness. The record showed that the
grounds adjacent to the military hospital were surrounded by a
concrete fence. A road between the hospital building and the fence
led to metal gates guarding the entrance to the hospital grounds. A
used cartridge from an automatic gun was found on the road
approximately twenty-five metres from the entrance gates. The plan of
the scene drawn up by the investigator showed that the applicant’s
son had started running along the road towards the gates from thirty
metres back. He had passed the gates without any attempt being made
to stop him. The plan also indicated that junior sergeant L. had also
passed the gates in pursuit of the applicant’s son and, having
run another seven metres beyond them, had stopped and shot Mr
Putintsev. A blood stain measuring sixty by forty centimetres
was discovered seventy-three metres from the place where Mr L.
had started shooting, on the road between two fences separating the
main grounds of the military unit and the grounds of the disciplinary
division where the applicant had been detained. The plan also
included a drawing of the applicant’s son’s path from the
place where he had started running to the blood stain. According to
the drawing, having passed the gates of the hospital grounds, he had
been running towards the checkpoint of the main grounds of the
military unit situated right across from the hospital gates and then,
having turned, had sprinted along the road between the two fences.
The
investigator seized the applicant’s son’s uniform and
underwear, having made photos of the clothes and a detailed
description of the stains and damage to them. The photos showed a
blood-soaked undershirt and winter underpants. The investigator also
took possession of Mr L.’s AK-74 automatic machine gun and the
ammunition, including fifty-seven live cartridges and two used ones,
collected by officer K. and other soldiers after the shooting.
Several hours later Mr L. was interrogated as a
witness. He described his dispute with the applicant’s son
which had caused him a lip injury and their subsequent visit to the
military hospital for medical examinations. Junior sergeant L.
insisted that on the way to the hospital officers had warned the
applicant’s son that he would be shot should he attempt to
escape. That had not stopped the applicant’s son from running
away on their way back from the hospital. Mr L. stressed that despite
his warning shouts and his firing two warning shots into the air, Mr
Putinstev had continued running away, at the same time inviting Mr L.
and accompanying officer K. to catch him. Mr L. had shot at the
applicant’s son once, aiming at his legs. Approximately seventy
metres had separated the applicant’s son from Mr L. at the
moment of the shooting. At the same moment in time, officer K. had
been approximately twenty metres away from the applicant’s son,
having continued to run after him. The applicant’s son had
fallen to the ground and officer K. had ordered Mr L. to call for an
ambulance. After the applicant’s son had been taken to
hospital, officer K. had told Mr L. to collect the used cartridges.
They had been able to recover two of them: one from the two warning
shots and one from the target shot.
A
search for the bullet with which the applicant had been shot,
including with the use of mine detectors, did not produce any
results.
On
16 February 2002 the investigator ordered a report from the military
unit’s psychologist to address the applicant’s son’s
psychological condition preceding the incident. The psychologist
indicated that during interviews the applicant’s son had
“hinted at the presence of hazing in the unit directed towards
him by junior commanding officers (sergeants) [whose] last names he
[had] not mentioned [and] [had] complained of the impossibility of
establishing social contacts and friendly relationships within his
military unit”. At the same time, the psychologist described
Mr Putintsev as a psychologically settled, stubborn and
determined person, able to defend his opinion “until the very
end by any means”. Having observed during an interview the
applicant’s son’s breaking down and developing signs of
depression, the psychologist recommended his transfer to another
military unit without giving him access to firearms and placing him
under psychological supervision in the new unit.
In
the days following the shooting the investigator interviewed the
applicant’s son’s fellow soldiers, including those who
had been on duty at the checkpoint of the military unit on 15
February 2002 and had witnessed the incident, personnel of the
military hospital and the unit’s commanding officers. The
witnesses described Mr Putintsev as a calm, but unsociable, person
and denied subjecting him or witnessing his being subjected to any
form of harassment or ill-treatment. Certain witnesses had seen the
applicant’s son on the ground after the shooting with his hips
and stomach covered in blood. Several of them had helped to transport
him to the hospital.
The
commandant of the garrison stated that he had had a talk with the
applicant’s son following his unauthorised leave. Mr Putintsev
had allegedly confided to him that he had had problems with fellow
soldiers from the Caucasus but had refused to identify them. The
commandant insisted that while giving the evening’s
instructions to the convoy groups he had paid particular attention to
Mr Putintsev, having heard that he had been “mentally
unbalanced”. On the morning of 15 February 2002 the officer had
received a report of a dispute between the applicant’s son and
a convoy soldier, Mr M., following Mr Putintsev’s refusal to
submit to a search. The officer had had a talk with the applicant’s
son, during which the latter had complained that convoy soldiers had
been beating him up. The commandant had called the officer in charge
of the convoy unit, junior sergeant L., and soldier M. and had
ordered junior sergeant L. to examine the applicant’s son in
their presence to verify whether he had had any injuries. Having
complained of insufficient space in the office to perform the
examination, Mr L. had asked for the commandant’s permission to
do it in another room, where he had then taken Mr Putintsev. On their
return only a few minutes later, Mr L. had had an injured lip and had
complained of the applicant’s son having attacked him. The
commanding officer had authorised a medical examination of the
applicant’s son and Mr L. by hospital doctors. He had offered
Mr L. the opportunity to step down from convoy duty but the latter
had assured him that he had no hard feelings towards the applicant’s
son and that he was willing to escort Mr Putintsev to the hospital.
The
investigator also studied materials of an internal inquiry into the
applicant’s son’s unauthorised leave. The case file
included Mr Putintsev’s explanation of his decision to leave
the military unit. He stated that he had felt lonely and depressed
and had been tired of military service. The inquiry had led to a
decision refusing the institution of criminal proceedings against Mr
Putintsev in view of his sincere remorse and the fact that his
decision to leave the premises of the military unit had been no more
than an attempt to cast off the difficulties of life in the army.
On
27 February 2002 the investigation into the shooting took a new turn
in view of the applicant’s son’s death. The investigator
of the military prosecutor’s office authorised a post-mortem
forensic examination, having asked experts to identify the cause of
Mr Putintsev’s death and the distance from which the shot had
been fired. The experts were also to list any injuries present on the
applicant’s son’s body and to determine their nature. In
report no. 945 experts identified a perforating wound from the
gunshot as the cause of the applicant’s son’s death.
Another
expert examination was meant to determine whether Mr L.’s
actions had complied with military regulations, in particular whether
the use of a gun had been lawful. An expert report issued on 9 March
2002 confirmed that Mr L. had been under an obligation to open fire
at Mr Putintsev during his escape. Mr L. had complied, to the letter,
with the rules regulating the use of firearms in such a situation. He
had only shot at the applicant’s son after he had exhausted
other means of preventing an escape. He had warned Mr Putintsev that
the firearm would be used and had made warning shots.
On
1 March 2002 the investigator seized the applicant’s son’s
personal belongings, including a number of letters to him from family
members and letters in which Mr Putintsev had complained of being in
poor health, extremely homesick and depressed, experiencing
difficulties in adjusting to the army, degrading treatment of
soldiers by officers, and forced labour for the officers’
benefit to the point of being treated like a slave.
On
11 March 2002 the military prosecutor of military unit no. 56681
assigned a group of investigators to take over the applicant’s
son’s case.
In
March 2002 the investigators performed additional interrogations of a
large number of witnesses, having attempted to clarify certain
aspects of the applicant’s son’s military service, his
relations with fellow soldiers and commanding officers, and so on.
A
month later the criminal proceedings were closed in view of the
absence of criminal conduct on Mr L.’s part. The investigator
concluded that Mr L. had followed, to the letter, the rules
regulating the use of firearms to prevent the escape of an arrestee.
On 28 June 2002 the military prosecutor for the First Supervisory
Division quashed that decision and re opened the criminal
proceedings, having considered that the investigators had not
sufficiently thoroughly studied alternative versions of the events of
15 February 2002, including one of intentional murder as a
result of hazing in the military unit, and had omitted to perform a
number of important investigative steps, including an expert
examination of the machine gun and used cartridges seized from the
scene, a reconstruction with the participation of Mr L., an expert
examination of the applicant’s son’s clothes, and an
assessment of the quality of the medical assistance provided to him
in hospital after the shooting.
Having fully complied with the instructions laid down
in the decision of 28 June 2002 and having re-interviewed a large
number of witnesses, on 14 September 2002 the investigator again
closed the criminal proceedings, having considered that there was no
evidence of a criminal offence. The final reasoning of the decision
read as follows:
“[T]he actions of Mr L., who on 15 February 2002,
while being on convoy duty... preventing the escape of Mr Putintsev,
a detainee for a disciplinary offence, having [the character of]
“shoot to kill”, [and] as a result of which Mr Putintsev
was injured and soon died, contain the formal features of the
criminal offence proscribed by Article 111 § 4 of the Russian
Criminal Code. However, taking into account the fact that Mr L. used
the weapon in compliance with Article 201 of the Statute of Garrison
and Sentry Service in the Military Forces of the Russian Federation
[...] and that he did not violate his responsibilities imposed on him
by the [...] Statute, it is necessary to conclude that his actions do
not constitute criminal conduct”.
On
10 February 2003, following the applicant’s complaint, a deputy
military prosecutor overturned the decision of 14 September 2002 and
reopened the investigation. The deputy prosecutor held that the
investigator’s decision had been premature and ordered him to
take a number of additional investigative measures.
On 7 May 2003 a deputy military prosecutor of military
unit no. 56681 closed the criminal proceedings, finding no case
to be answered. The relevant parts of the decision read as follows:
“On 15 February 2002, at 2.10 p.m., on an order of
the military commandant [the applicant’s son] was escorted by
junior sergeant L. and an assistant to the head of the convoy
regiment, senior lieutenant K., to the military hospital of military
unit no. 93421 for a medical examination.
On their way back to the detention unit, at 2.30 p.m.,
[the applicant’s son] absconded near isolation wards situated
in the grounds of the military hospital. In order to prevent [the
applicant’s son] committing any criminal acts, junior sergeant
L. warned [him] by shouting: ‘Stop, [I] will shoot’, but
the [applicant’s son] did not obey the order. [Junior sergeant]
L. disabled the safety device of his AK-74 submachine gun and changed
the gun lever to trigger single shots. He put a bullet in the firing
chamber and fired two warning shots in the air. [The applicant’s
son] did not react in any way and continued running.
[Senior lieutenant] K. ran after [the applicant’s
son] to try to catch him, but he tripped and fell. Then junior
sergeant L. ran after [the applicant’s son] and, realising that
he could not catch up with [him], stopped near the entrance gate to
the military hospital and fired one shot at [the applicant’s
son], as a result of which [the applicant’s son] sustained a
bodily injury in the form of a perforating bullet wound to the right
buttock, causing injuries to the main blood vessels, right hip and
bone structure, accompanied by a disturbance of the blood flow to the
right lower extremity with subsequent necrobiotic changes in the crus
muscles and complications in the form of acute renal failure, the
appearance of stress ulcers on the large and small intestines and
their subsequent perforation, [and] the development of fecal
peritonitis and general poisoning of his system, [resulting in]
serious damage to his health.
An ambulance took [the applicant’s son] to the
surgical department of the military hospital of military unit no.
93421, where he underwent surgery.
On 18 February 2002 [the applicant’s son] was
taken to Krasnoyarsk Regional Hospital no. 1 where on 27 February
2002, at 8.45 a.m., he died from his injuries.
[Junior sergeant] L., questioned as a witness during the
pre-trial investigation, stated that ... on 14 February 2002 he
had taken up convoy duty in the detention unit of the Uzhur Town
Garrison. [The applicant’s son], a soldier in military unit no.
39982, had been kept in the detention unit as a disciplinary
detainee. On 15 February 2002, at 2.10 p.m., on an order from the
military commandant, [the applicant’s son], escorted by Mr L.
and [officer] K., had been taken to the military hospital of military
unit no. 93421 for a medical examination. After the examination,
at 2.30 p.m., they had left the hospital and had headed back to the
detention unit. Officer K. had slipped near the hospital isolation
wards and at that moment [the applicant’s son] had started
running towards the checkpoint yelling ‘try to catch me’.
Mr K. and Mr L. had run after him. In order to prevent [the
applicant’s son] from committing any criminal acts, Mr L. had
warned [him] by shouting: ‘Stop, [I] will shoot’.
However, [the applicant’s son] had not complied with the order.
Then Mr L. had stopped, disabled the safety device of his submachine
gun, changed the gun lever to trigger single shots and fired a
warning shot in the air. [The applicant’s son] had not reacted
and had continued running. Mr L. had run after him again. After ten
metres, he had fired another warning shot in the air. [The
applicant’s son] had continued running. Then Mr L. had fired a
single shot at him, aiming at his legs. [The applicant’s son]
had fallen down after the shot. Officer K ... had approached [the
applicant’s son] and had told Mr L. to call an ambulance.
Junior sergeant L. had run to the hospital and then, together with a
doctor on duty, had run to the place where [the applicant’s
son] was lying. The doctor had examined [the applicant’s son],
[had] placed him in the ambulance and [had] taken [him] to the
hospital.
Junior sergeant L. confirmed his statements during a
reconstruction [conducted as part of the] investigation on 16 August
2002.
Officer K., questioned during the pre-trial
investigation as a witness, stated that he had been in contractual
military service in military unit no. 12440. At night on 14 February
2002 he had gone on duty as a garrison guard in the detention unit of
the Uzhur Garrison in the capacity of an assistant to the head of the
convoy regiment ... On 15 February 2002, at 2.00 p.m., on the
commandant’s order, he and junior sergeant L. had escorted [the
applicant’s son] to the military hospital of military unit no.
93421 for a medical examination. After the examination, he, Mr L. and
[the applicant’s son] had left the hospital and had headed back
to the detention unit. On their way to the detention unit, near the
hospital isolation wards, [the applicant’s son] had suddenly
started running towards the hospital entrance gates and had yelled:
‘Try to catch and hit me’. At the same moment officer K.
had slipped and had been unable to apprehend [the applicant’s
son]. Junior sergeant L. had immediately shouted to [the applicant’s
son]: ‘Stop, [I] will shoot’, but [the applicant’s
son] had continued running. Mr L. had fired a warning shot in the air
and had run after [the applicant’s son]. [The applicant’s
son] had not reacted in any way and had run through the hospital
entrance gates and had continued running along the fence. Mr L. had
stopped near the gates and had fired a second warning shot in the
air. [The applicant’s son] had continued running, not paying
attention to the shots and shouts. After Mr L. had run through the
hospital gates, he had fired at [the applicant’s son] and had
wounded him. At that moment officer K. had been 15-20 metres away
from [the applicant’s son]. After that he had approached [the
applicant’s son] and had immediately called an ambulance, which
had taken [the applicant’s son] to the hospital.
Officer K. confirmed his statements during a
reconstruction [conducted as part of the] investigation on 16 August
2002.
N., questioned as a witness during the pre-trial
investigation, stated that he had been in mandatory military service
in military unit 12463. On 14 February 2002 he had taken up guard
duty at the checkpoint. That checkpoint was situated opposite the
military hospital of military unit no. 93421. On 15 February 2002, at
2.30 p.m., he had been outside, near the entrance gates of checkpoint
no. 4, and had been inspecting ... cars ... He had been alone
outside. When he had once again closed the gates ... he had heard
someone shout ‘Stop, [I] will shoot’, from the direction
of the hospital. He had noticed a soldier running from the hospital
and two people, an officer and a soldier with a gun, running after
him. The fleeing soldier had not reacted to the shouts ... and had
continued running, then the soldier with the gun had fired a shot in
the air, but [the applicant’s son] had continued running and
had not reacted in any way. Then [Mr N.] had heard another shot
in the air but the situation did not change. The fleeing soldier had
started running on the road alongside the fence and Mr N. had no
longer been able to see [him] from where he had been standing at
checkpoint no. 4; he had only been able to see when the soldier with
the gun had run through the hospital gates and had fired at the
fleeing [soldier]. [Mr L.] had fired once. After that Mr N. had gone
onto the road and had looked in the direction where the soldier with
the gun had fired. Mr N. had seen that the [soldier who had been
fleeing] was lying on the verge of the road and that the officer was
standing near him; [the officer] had told the soldier with the gun to
run to the hospital for an ambulance. Approximately 5 or 10 minutes
later a doctor, and then an ambulance, had arrived. Mr N. remembered
clearly that the soldier with the gun had only fired an aimed shot
once and had wounded the fleeing soldier with the third shot, as the
first two shots had been fired in the air.
The head of military unit no. 39982, Lieutenant Colonel
B., questioned as a witness in the criminal case, stated that he had
only known [the applicant’s son] from 6 to 12 February
2002. He described him as a reserved, unsociable person. [The
applicant’s son] had overreacted to commanding officers’
remarks. He had had no friends. On 9 February 2002 ... [Mr B.] had
been informed that [the applicant’s son] had left the military
unit without permission. A search had produced no results. On
11 February 2002, at 11.00 a.m., Mr B. had been notified that
the Koptevo District Police Department had apprehended a soldier who
had identified himself as Mr Ivanov and had refused to show a
military card. It had turned out that that apprehended person had
been [the applicant’s son]. [Mr Putintsev] had refused to
explain the reasons for his absence without leave. Mr B. had brought
[the applicant’s son] back to the military unit, had authorised
his disciplinary detention and had had him detained in the garrison’s
detention unit. [The applicant’s son] had had no injuries on
his face. He had had a dry abrasion which, according to him, he had
sustained during work in a study unit in the town of
Pereslavl-Zalesskiy.
Mr Ko., questioned as a witness in the criminal case,
testified that he worked as a surgeon at Regional Clinical Hospital
no. 1. On 18 February 2002 he had been working, and sometime after
3.00 p.m. he had been called to the hospital admissions room. A
soldier, [the applicant’s son], who had suffered a gunshot
wound, was lying on a stretcher. During an examination no injuries,
save for a gunshot wound, had been discovered on his body.
...
According to forensic medical examination no. 945 of the
corpse of [the applicant’s son]:
1. The death of [the applicant’s son] resulted
from a perforating bullet wound to the right buttock, causing
injuries to the main blood vessels, right hip and bone structure ...
The conclusion made as to the cause of death was confirmed by the
presence of entrance and exit wounds on the skin, [and by] gross and
microscopic impressions.
2. According to the medical documents
submitted, death was pronounced at 4.45 a.m. on 27 February
2002.
...
It was impossible to identify from what distance the
gunshot was fired and to give a detailed description of the exit and
entrance wounds because they were treated surgically.
The injury caused severe damage to the [applicant’s
son’s] health, which endangered his life at the moment when it
was sustained and had a direct causal link with [the applicant’s
son’s] death.
...
According to the results of outpatient complex forensic
psychiatric examination no. 209 performed on 12 April 2002 in
respect of the period prior to [the applicant’s son’s]
absence without leave from the military unit and his subsequent
escape from the detention unit, [the applicant’s son] had not
exhibited any signs of a psychiatric illness; he had exhibited the
following personality traits – attention seeking, stubbornness,
a tendency to hysteria, unwillingness to comply with commonly
accepted norms and rules and to serve in the army, persistent desire
to achieve goals by any means, tendency to overestimate his
abilities, and lack of control over his actions in emotionally
meaningful situations, [but] which did not render him incapable of
fully understanding the actual nature and dangerousness of his
actions or controlling them. During his escape from the guard he had
not exhibited signs of any temporary mental disorder ..., his actions
were committed deliberately, for a purpose and [the applicant’s
son] was capable of fully understanding the nature and dangerousness
of his actions and of controlling them.
According to the results of the forensic medical report
on the medical assistance provided to the [applicant’s son]:
1. The cause of [the applicant’s son’s]
death was a single gunshot wound to the right buttock and iliac
region with gunshot fractures of the right trochanter, pubic and
ischial bones, an injury to the right iliac arteries and vein
accompanied by massive blood loss, extensive haemorrhaging in the
retroperitoneal space, traumatic and hemorrhagic shock and
complicated multiple organ failure.
2. [The applicant’s son’s]
surgical treatment in the hospital ... was necessary, technically
correct and timely.
3. [The applicant’s son’s]
postsurgical treatment in the hospital and subsequently in the
Krasnoyarsk Regional Clinical Hospital was performed correctly and to
the necessary extent.
4. No mistakes during the surgical and
postsurgical treatment of [the applicant’s son] in the hospital
and subsequently in the Krasnoyarsk Regional Clinical Hospital were
detected.
According to the results of ballistic examination no.
1478:
...
3. Three cartridge cases submitted for examination are
constituent elements of live cartridges ... for an AK-74 submachine
gun ...;
4, 5, 6. There are two holes [in the clothes
(an overcoat, pants, coat) submitted for examination] caused by
mechanical force: those holes were caused by a gunshot; one is the
entrance hole and the other is the exit hole.
...
9. If the overcoat was not buttoned up, the gunshot
holes in the military clothes ... submitted for examination were
caused by a single bullet fired once;
...
11. The holes in the clothes submitted for examination
were caused by a gunshot fired from a distance of no less than 30
centimetres;
...
13. The three cartridge cases submitted for examination
were fired from the same AK-74 submachine gun (no. 896397250 4)
presented for examination.
A senior expert, Mr V., stated that the distance from
which the shot had been made was more than 30 centimetres. It was
impossible to identify the distance precisely because the submachine
gun presented for examination had a flash hider....
According to military statute examination no. 101 on 9
March 2002:
1. Section 11 of Protocol No. 14 and Article
9 of Section 201 of the Statute of Garrison and Sentry Service in the
Military Forces of the Russian Federation determine the procedure for
using firearms; they state that a sentry should use a firearm after
warning an arrestee (a detainee) who is attempting to escape with a
peremptory shout: ‘Stop or [I] will shoot’, and if the
order is not complied with, then [the sentry] should shoot.
2. The sentry, junior sergeant L., did not violate
the procedure for using firearms in his use of the gun and complied
with the requirements set out in Section 201 of the Statute.
3. When a detainee is attempting to escape, a
sentry should not run after him; after giving the warning ‘Stop
or [I] will shoot’, he must shoot at the detainee.
4. By virtue of Article 24 of Protocol no. 14 of
the Statute ... detained soldiers, in a group of no more than
fifteen, are to be sent from a detention unit to other [points] in
the grounds of a military unit under the guard of one sentry ... On
an order of the garrison’s military commandant, officer K., an
assistant to the head of the convoy regiment, was also sent to
accompany [the applicant’s son] because the latter was liable
to leave the military unit without permission. While accompanying
[the applicant’s son] Mr K. did not violate any requirement of
the Statute.
...
While escorting [the applicant’s son] junior
sergeant L. complied with the established procedure, walking three
steps to the left behind [the applicant’s son], and [officer]
K. walked ahead of the detainee, not violating the requirements of
the Statute...
According to statements by soldiers in mandatory
military service in military units nos. 39982 and 40250, [the
applicant’s son] was not subjected to acts of violence or
harassment by other soldiers or officers in the aforementioned units;
no one beat him up or intimidated or insulted him or forced him to do
any work for them.
Captain Sh. stated ... that on admittance to the
detention unit he had examined [the applicant’s son], who had
not had any injuries or bruises on his body save for a bruise on the
left shank which, according to [the applicant’s son], he had
sustained as a result of a fall during his absence from the military
unit ... In the detention unit [the applicant’s son] had been
given food according to the established regulations; he had not made
any complaints concerning the conditions of detention in the
detention unit. While Mr Sh. had been on duty no one had committed
acts of violence or harassment towards [the applicant’s son].
...
A medical officer in military unit no. 39982, Ms F.,
stated ... that on [the applicant’s son’s] arrival from
the study unit in the town of Pereslavl-Zalesskiy she had examined
him ... During the first examination she had not noticed any injuries
or bruises or any other signs of possible beatings on [the
applicant’s son’s] body. When she had examined [the
applicant’s son’s] head she had noticed an infected
injury on his scalp; as per [the applicant’s son’s]
explanations he had sustained that injury when he had hit his head on
a low door frame in Pereslavl–Zalesskiy. She had examined
soldiers every day, and during [the applicant’s son’s]
service in military unit no. 39982 she had not discovered any
injuries, bruises or other signs of beatings on his body. [The
applicant’s son] had not made any complaints about the state of
his health.
A medical officer in military unit no. 40250, Ms O.,
made statements identical to those by Ms F., and she additionally
stated that ... in January 2002 [the applicant’s son] had been
admitted to hospital in military unit no. 93421 with a diagnosis of
“difficulty in adapting”. During a conversation with a
doctor, T., she had found out that [the applicant’s son] had
wanted to be transferred to a communication centre of military unit
no. 39982 as he had been unable to adapt in military unit no. 40250.
At the same time, [the applicant’s son] had not told doctor T.
that he had been harassed by his fellow soldiers or other
individuals.
Major A. stated that ... at approximately 2.20 p.m. [on
the day of the shooting] [the applicant’s son] and Mr L. had
been brought for a medical examination. During the examination [the
applicant’s son] had stripped naked and Mr A. had examined him,
searching for injuries, bruises, scratches, etc. He had performed the
examination starting from [the applicant’s son’s] head
and face and finishing with his legs. During the examination he had
discovered an injury covered by a brown scab on [the applicant’s
son’s] scalp. He had concluded that the injury had been
sustained 4–5 days before. He had also discovered a small
injury on [the applicant’s son’s] left shank which could
also have been sustained 4–5 days before. He had not discovered
any other injuries on [the applicant’s son’s] body. When
he had examined Mr L., he had discovered a lacerated wound, measuring
approximately 1 centimetre, on the inner side of the upper lip. That
injury could have been sustained 30 minutes before their arrival at
the hospital. Subsequently, [major A.] had recorded [the applicant’s
son’s] and Mr L.’s injuries in letters of referral for
medical examinations.
According to [the applicant’s son’s] written
statements, he had sustained an injury to his scalp in the study unit
in Pereslavl-Zalesskiy in October 2001.
During the pre-trial investigation, the allegations that
[the applicant’s son] had been subjected to acts of violence or
harassment by other servicemen during his service in military units
nos. 39982 and 40250 were not confirmed. The allegations of extortion
of money, personal and military belongings from [the applicant’s
son] were not confirmed either. It is established that [the
applicant’s son] had sustained an injury to the scalp during
his service in the study unit in Pereslavl-Zalesskiy; he had
sustained an injury to the left shank as a result of a fall during
his absence without leave from the military unit between 8 and 12
February 2002; a bruise on [the applicant’s son’s] right
eye had been sustained as a result of resuscitation actions taken in
Krasnoyarsk Regional Hospital no. 1; no-one is responsible for
causing injuries to [the applicant’s son].
Thus, it is necessary to conclude that [the applicant’s
son’s] attempt to escape from the detention unit was caused by
his own disorderly actions and lack of understanding of the actual
nature and social harmfulness of his actions; it had a purposeful and
conscious character and was not caused by any external factor.
In his use of the gun, junior sergeant L. did not
violate the procedure on the use of firearms; [he] complied with all
the necessary requirements set out in Section 201 of the Statute.”
The
applicant appealed against the decision of the deputy military
prosecutor to the Military Court of the 61st Garrison. Amongst other
things, she asked the Military Court to grant her victim status in
the criminal case concerning her son’s death to enable her to
claim compensation later on for the pecuniary and non-pecuniary
damage which had resulted from his death.
On
3 July 2003 the Military Court, endorsing the findings made by the
deputy prosecutor in his decision of 7 May 2003, dismissed the
applicant’s complaint. As regards the applicant’s request
for victim status, the Military Court held:
“By virtue of Article 42 of the Code of Criminal
Procedure, a victim is a person who sustained physical, pecuniary or
non-pecuniary damage as a result of a crime. As [the deputy military
prosecutor] refused to institute criminal proceedings against junior
sergeant L., and the criminal case concerning the death of [the
applicant’s son] was closed because there was no evidence of a
crime, it is necessary to state that [the applicant’s] request
for victim status due to the death of her son is unfounded.”
On
27 August 2003 the Military Court of the 3rd Command quashed the
judgment of the Military Court of the 61st Garrison and remitted the
case for fresh examination. A copy of the decision of 27 August 2003
was not submitted to this Court.
On
28 January 2004 the Military Court of the 61st Garrison, again
relying on the deputy military prosecutor’s decision of 7 May
2003, found that the use of firearms against the applicant’s
son had been lawful. The court noted that the applicant’s son
had been aware that he was under arrest and had understood the
consequences of his attempt to escape, including the possible use of
firearms, and that junior sergeant L. had had no choice but to follow
the rules on the use of firearms laid down by the Statute of Garrison
and Sentry Service. The Military Court also dismissed the applicant’s
request for victim status.
On
24 March 2004 the Military Court of the 3rd Command upheld the
judgment of 28 January 2004, endorsing the reasoning of the
first instance court.
II. RELEVANT DOMESTIC LAW
A. Disciplinary Statute
The
Disciplinary Statute of the Military Forces of
the Russian Federation, adopted by Presidential Decree no.
2140 on 14 December 1993 and in force until 1 January 2008, laid
down grounds for the imposition of disciplinary penalties on
servicemen, including soldiers performing mandatory military service.
In particular, the Disciplinary Statute permitted detention for up to
ten days of a soldier for a breach of military discipline or public
order (§ 51). A decision authorising the detention was to be
taken by the commandant or head of the unit involved (§ 85). An
inquiry into the circumstances of an alleged disciplinary offence was
to precede a decision by which a disciplinary penalty was imposed.
The inquiry was to, inter alia, take account of the purpose
for which the alleged disciplinary offence was committed, whether the
soldier was guilty of the offence, what the consequences of the
offence were and whether there were mitigating or aggravating
circumstances (§ 86). A decision to impose a disciplinary
penalty was ordinarily to be taken within a day after the commandant
had learned about the offence (§ 88).
B. Statute of Military Service
The Statute of Military Service of the Russian
Federation, adopted by the same Presidential Decree as the
Disciplinary Statute and in force until 1 January 2008, contained an
exhaustive list of cases in which the use of firearms by servicemen
was authorised. In particular, the relevant part of the Statute read
as follows:
“11. While performing military service duties and,
if necessary, during out-of-office hours, servicemen have the right
to store, carry and use firearms.
The procedure for storing and using firearms by
servicemen is laid down in the present Statute.
As a measure of last resort, servicemen have the right
to use firearms personally or within their military subdivision:
to
repel an attack by a group of persons or an armed person on guarded
military or State installations, as well as on military units and
divisions, buildings and premises of military units, military
echelons, motorcades or single cars and convoy units, if it is
impossible to use other means and measures to protect them;
to
prevent an attempt to take possession, by force, of firearms and
military equipment, if it is impossible to use other means and
measures to protect them;
to
protect military personnel and civilians from an attack posing a
threat to their lives and limb, if it is impossible to use other
means and measures to protect them;
to
apprehend a person who has committed a crime or is committing a
serious or particularly serious criminal offence or an armed person
who refuses to comply with lawful orders to disarm, if it is
impossible to use other means and measures to suppress the
resistance, to apprehend the criminal or to seize the weapon.
Servicemen
performing convoy duty have the right to use firearms in the cases
and in line with the procedure established by the Statute of Garrison
and Sentry Service in the Military Forces of the Russian Federation.
Moreover,
a commanding officer has the right to use firearms personally or to
order the use of firearms to restore discipline and order in the
event of open resistance from a subordinate, when his actions clearly
pursue [the purposes] of treason or disruption of a military mission
in battlefield conditions.
12.
A warning that a weapon may be used should precede its use. A weapon
may be used without a warning [to repel] an unexpected and armed
attack [and] an attack with the use of military equipment, vehicles,
aircrafts, sea and river vessels; [to prevent] an escape of an armed
[detainee] or [when the escape is effected] with the use of vehicles
or from moving vehicles, at the night time or in other restricted
visibility conditions.
Servicemen
have the right to use firearms to make an alert signal or to call for
help, as well as [to use the weapon] against an animal which
threatens the life or health of individuals...”
C. Statute of Garrison and Sentry Service
The Statute of Garrison and Sentry Service in the
Military Forces of the Russian Federation, in force at the material
time, regulated the use of firearms and force in convoy and sentry
service. In particular, Article 201 provided as follows:
“A sentry guarding arrestees (detainees) in a
disciplinary unit must:
- warn arrestees (detainees) attempting to escape with
an order: ‘Stop, or [I] will shoot’, and if the order is
not complied with [the sentry] should use a firearm against them.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
The
applicant complained under Articles 2 and 13 of the Convention that
her son had been killed as a result of the unnecessary use of
firearms by a State agent and that the authorities had failed to
conduct an effective investigation into her son’s death. The
Court will examine the present complaint under Article 2 of the
Convention, which provides as follows:
“1. Everyone’s right to life
shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court
following his conviction of a crime for which this penalty is
provided by law.
2. Deprivation of life shall not be regarded
as inflicted in contravention of this Article when it results from
the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful
violence;
(b) in order to effect a lawful arrest or to
prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose
of quelling a riot or insurrection.”
A. Submissions by the parties
The
Government submitted that on 15 February 2002 a sentry, junior
sergeant L., had lawfully shot the applicant’s son during the
latter’s attempt to escape. At the time, the applicant’s
son had been subject to ten days’ detention for unauthorised
leave from military service. When the applicant’s son had
started running away while being escorted back from hospital, Mr L.
had warned him that he would open fire. He had fired two warning
shots in the air. All attempts to force the applicant’s son to
stop failing, junior sergeant L. had fired a target shot in
compliance with the requirements of Article 201 of the Statute of
Garrison and Sentry Service. According to the Government, Mr L. had
had no intention of killing the applicant’s son, having aimed
at his legs in order to minimise the damage to his health. The
Government stressed that the incident had been thoroughly
investigated. The evidence collected by the investigating authorities
(witness statements, expert reports, crime scene examinations, and so
forth) had corroborated the investigators’ finding that Mr L.’s
actions had not constituted criminal conduct.
The
Government further submitted that the applicant’s detention and
his subsequent placement in a disciplinary cell had been lawful,
having complied with the provisions of national law laying down
responsibility for disciplinary offences committed by servicemen. The
use of force by Mr L. had been absolutely necessary to prevent the
escape of the applicant’s son, who had been lawfully detained.
Thus, Mr Putintsev’s loss of life could not be regarded as
having been in contravention of the Convention, being covered by the
exception in subparagraph (b) of paragraph 2 to Article 2 of the
Convention. The Government insisted that, having decided to abscond
and having refused to comply with the order to stop, Mr Putintsev had
himself placed his life in imminent danger. He had been warned and he
had fully understood the consequences of his actions. The deadly
force had been used for a lawful purpose and had been a measure of
last resort. The Russian Federation could not therefore be held
responsible for Mr Putintsev’s death.
The
Government acknowledged that Article 201 of the Statute of Garrison
and Sentry Service, in force at the material time, had not indicated
that the use of force had to be absolutely necessary. However, that
legal norm had indicated that deadly force could only be used in
specific cases and as a measure of last resort. The Government
observed that the wording of Article 201 of the Statute had afforded
the same level of protection of the right to life as Article 2 of the
Convention. They further noted that in assessing the circumstances of
the case the Court should not overlook the fact that the events in
question had occurred in the army, a very specific setting
characterised by extreme limitations on the rights and freedoms of
individuals performing military service. The specific
responsibilities of servicemen to respect discipline and the
regulations of the Statute of Garrison and Sentry Service, as well as
the fact that military service was inherently characterised by
unquestionable compliance with orders of higher-ranking officers, had
justified the use of deadly force against a serviceman to prevent his
escape.
Finally,
the Government addressed the issue of the quality of the
investigation into the shooting. They noted that the criminal case
had been opened on the same day that the incident had occurred. The
investigation had been thorough, complete and independent, having
been performed by an independent State body, the military prosecution
service. Seven forensic expert examinations had been conducted over
the course of the investigation. They had covered various subjects
and had pursued various purposes, including those of identifying the
cause of the applicant’s son’s death, reconstructing the
events surrounding the shooting, verifying various versions of the
events, assessing the quality of the medical care afforded to the
applicant’s son in hospital following the shooting, and so on.
An examination of the scene of the incident had been carried out
within hours of the shooting. Reconstructions of the events of 15
February 2002 had been organised with the participation of junior
sergeant L. and officer K. More than two hundred interviews to
identify possible witnesses to the incident had been conducted.
Having provided the Court with a copy of the criminal case file,
including the written statements of the witnesses collected by the
investigating authorities, the Government argued that the evidence
had fully supported the finding of the use of force having been
lawful and necessary. At the same time, the Government pointed out
that the investigating authorities had not only concentrated on the
version of events given by Mr L. They had looked into the
allegations of hazing in the military unit, including the possibility
of the applicant’s son having been subjected to some form of
violence or degrading treatment or extortion, and had not found any
evidence in support of those allegations.
In
the Government’s opinion, the biggest support to the findings
of the investigating authorities had been given by the Russian courts
which, having examined the applicant’s complaint, had
considered that the investigators’ decision to close the
criminal case had been wholly appropriate. The Government drew the
Court’s attention to its reasoning in the case of García
Ruiz v. Spain ([GC], no. 30544/96, §§ 28-29,
ECHR 1999 I), having stressed that unless the findings of
national courts were clearly arbitrary, the Court had no reason to
doubt them. The Government submitted that the Court should not
interfere with the national courts’ task of examining evidence
and assessing the investigators’ decisions purely on the basis
of the applicant’s refusal to accept the outcome of the
domestic proceedings.
The
applicant maintained her complaint, having argued that it had not
been absolutely necessary to kill her son, a person who had not
presented any danger and had not committed any criminal offence, and
that the investigation into the killing had been performed poorly.
She pointed to four defects in the investigation: the failure to
attribute particular weight to the fact that only one used cartridge
had been found at the crime scene, whereas two cartridges had been
produced by Mr L. himself; that the investigators had not clarified
the issue of her son’s detention in the disciplinary unit; that
they had not identified the cause of the injuries on her son’s
body; and that they had not ordered an expert report as to the
authenticity of her son’s signature on a written statement
explaining the reasons for his unauthorised leave. The applicant
further submitted that she had not been afforded victim status in the
criminal proceedings, thus having been denied an effective
opportunity to challenge the investigator’s conduct.
B. The Court’s assessment
1. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention and that it
is not inadmissible on any other grounds. It must therefore be
declared admissible.
2. Merits
(a) General principles
Article
2, which safeguards the right to life and sets out the circumstances
in which deprivation of life may be justified, ranks as one of the
most fundamental provisions in the Convention, from which no
derogation is permitted. Together with Article 3, it also enshrines
one of the basic values of the democratic societies making up the
Council of Europe. The circumstances in which deprivation of life may
be justified must therefore be strictly construed. The object and
purpose of the Convention as an instrument for the protection of
individual human beings also requires that Article 2 be interpreted
and applied so as to make its safeguards practical and effective (see
Andronicou and Constantinou v. Cyprus, 9 October 1997, §
171, Reports of Judgments and Decisions 1997 VI, and
Huohvanainen v. Finland, no. 57389/00, § 92, 13 March
2007).
The
text of Article 2, read as a whole, demonstrates that it covers not
only intentional killing but also situations where it is permitted to
“use force” which may result, as an unintended outcome,
in the deprivation of life. Any use of force must be no more than
“absolutely necessary” for the achievement of one or more
of the purposes set out in sub-paragraphs (a) to (c). This term
indicates that a stricter and more compelling test of necessity must
be employed than that normally applicable when determining whether
State action is “necessary in a democratic society” under
paragraphs 2 of Articles 8 to 11 of the Convention. Consequently, the
force used must be strictly proportionate to the achievement of the
permitted aims (see Kelly and Others v. the United Kingdom,
no. 30054/96, § 93, 4 May 2001).
Accordingly,
and with reference to Article 2 § 2 (b) of the Convention, the
legitimate aim of effecting a lawful arrest or preventing the escape
of a person lawfully detained can only justify putting human life at
risk in circumstances of absolute necessity. The Court considers that
in principle there can be no such necessity where it is known that
the fleeing person poses no threat to life or limb and is not
suspected of having committed a violent offence, even if failure to
use lethal force may result in the opportunity to arrest the fugitive
being lost (see the Court’s approach in McCann and Others v.
the United Kingdom, 27 September 1995, §§ 146-50
and §§ 192-214, Series A no. 324, and, more
recently, in Makaratzis v. Greece [GC], no. 50385/99, §§
64-66, ECHR 2004 XI).
In keeping with the importance of Article 2 in a
democratic society, the Court must, in making its assessment, subject
deprivations of life to the most careful scrutiny, particularly where
deliberate lethal force is used, taking into consideration not only
the actions of the agents of the State who actually administer the
force but also all the surrounding circumstances including such
matters as the planning and control of the actions under examination.
In determining whether the force used is compatible with Article 2,
it may therefore be relevant whether an operation has been planned
and controlled so as to minimise to the greatest extent possible
recourse to lethal force or incidental loss of life (see Bubbins
v. the United Kingdom, no. 50196/99, §§
135-36, ECHR 2005 II (extracts), and McCann and Others,
cited above, §§ 150 and 194).
In
addition to setting out the circumstances in which deprivation of
life may be justified, Article 2 implies a primary duty on the State
to secure the right to life by putting in place an appropriate legal
and administrative framework defining the limited circumstances in
which officials may use force and firearms, in the light of the
relevant international standards (see Makaratzis, cited above,
§§ 57-59). In line with the above-mentioned principle of
strict proportionality inherent in Article 2 (see McCann and
Others, cited above, § 149), the national legal framework
regulating arrest operations must make recourse to firearms dependent
on a careful assessment of the surrounding circumstances, and, in
particular, on an evaluation of the nature of the offence committed
by the fugitive and of the threat he or she poses.
Furthermore,
national law must ensure a system of adequate and effective
safeguards against arbitrariness and abuse of force and even against
avoidable accident (see Makaratzis, cited above, § 58).
In particular, officials must be trained to assess whether or not
there is an absolute necessity to use firearms, not only on the basis
of the letter of the relevant regulations, but also with due regard
to the pre-eminence of respect for human life as a fundamental value
(see the Court’s criticism of the “shoot to kill”
instructions given to soldiers in McCann and Others, cited
above, §§ 211-14).
Finally,
the obligation to protect the right to life under Article 2 of the
Convention, read in conjunction with the State’s general duty
under Article 1 to “secure to everyone within [its]
jurisdiction the rights and freedoms defined in [the] Convention”,
requires by implication that there should be some form of effective
official investigation when individuals have been killed as a result
of the use of force. The essential purpose of such an investigation
is to secure the effective implementation of the domestic laws
safeguarding the right to life and, in those cases involving State
agents or bodies, to ensure their accountability for deaths occurring
under their responsibility (see Makaratzis, cited above,
§ 73). What form of investigation will achieve those
purposes may vary in different circumstances. However, whatever mode
is employed, the authorities must act of their own motion, once the
matter has come to their attention. They cannot leave it to the
initiative of the next of kin either to lodge a formal complaint or
to take responsibility for the conduct of any investigative
procedures (see Kelly and Others, cited above, § 94, and,
mutatis mutandis, İlhan v. Turkey [GC] no.
22277/93, ECHR 2000-VII, § 63).
(b) Application to the present case
It
is common ground between the parties that the death of the
applicant’s son, Mr Valeriy Putintsev, resulted from the use of
lethal force by a sentry, junior sergeant L. The Court will firstly
assess the adequacy of the investigation into the death of the
applicant’s son. It will then turn to the establishment of the
disputed facts and the assessment of the circumstances surrounding
the use of force.
(i) Concerning the procedural obligation
under Article 2 of the Convention
The
domestic authorities conducted a criminal investigation into the
killing of the applicant’s son. The Court must ascertain
whether those proceedings were effective for the purposes of Article
2 on the basis of the complete investigation file submitted by the
Government,.
According
to the Court’s settled case-law, for an investigation into
alleged killing by State agents to be effective, it may generally be
regarded as necessary for the persons responsible for carrying out
the investigation to be independent from those implicated in the
events (see Ramsahai and Others v. the Netherlands [GC], no.
52391/99, § 325, ECHR 2007 II; and Öğur v.
Turkey, [GC] no. 21954/93, ECHR 1999-III, §§ 91-92).
The investigation must also be effective in the sense that it is
capable of ascertaining the circumstances in which the incident took
place and of leading to a determination of whether the force
used was or was not justified in the circumstances and to the
identification and punishment of those responsible. This is not an
obligation of result, but of means. The authorities must have taken
the reasonable steps available to them to secure the evidence
concerning the incident, including, inter alia, eyewitness
testimony and forensic evidence. A requirement of promptness and
reasonable expedition is implicit in this context. Any deficiency in
the investigation which undermines its capability of establishing the
circumstances of the case or the person responsible is liable to fall
foul of the required standard of effectiveness (see Leonidis
v. Greece, no. 43326/05, §
68, 8 January 2009, and Anguelova v. Bulgaria, no. 38361/97, §
139, ECHR 2002-IV).
Turning
to the circumstances of the present case, the Court observes that the
military prosecutor’s office conducted a criminal investigation
into the death of the applicant’s son. That investigation was
at all stages carried out by a prosecutor’s office that was not
connected to the Uzhur Town Garrison or military unit no. 39982,
either structurally or factually. The Court is therefore satisfied
that the persons conducting the criminal investigation were
independent from the personnel of the Uzhur Town Garrison implicated
in the events. It remains to be assessed whether the investigation
was thorough and prompt.
The
criminal investigation was opened immediately after the shooting. On
the same day that the incident occurred, the investigator inspected
the scene, having drawn up a meticulous plan of the scene, seized and
bagged as evidence the applicant’s son’s clothes, took
possession of Mr L.’s submachine gun and ammunition,
including the two used cartridges collected by officer K. and one
used cartridge found on the hospital grounds, and organised a search
for the bullet with which the applicant’s son had been shot. Mr
L. was interrogated within hours of the incident, having provided his
version of events. In the days following the shooting, the
investigator ordered a report from the unit’s psychologist to
understand the reasons behind the applicant’s son’s
unauthorised leave on 9 February 2002, his relations with fellow
soldiers and commanding officers and his attempted escape on
15 February 2002. He also thoroughly studied the materials of
the internal inquiry into Mr Putintsev’s unauthorised leave and
interrogated a large number of solders, commanding officers and staff
members of the military hospital to indentify possible eyewitnesses
to the events of 15 February 2002, as well as to obtain general
information on the atmosphere in the military unit and the
applicant’s son’s daily life in the army. An autopsy on
the applicant’s son’s body was performed on the day
following his death.
Two
weeks after the applicant’s son’s death, a group of
investigators from the prosecutor’s office took over the case
in view of the large amount of evidence that was to be collected and
assessed. Several expert opinions were prepared within months. The
investigators continued their search for possible witnesses and
re-interviewed a large number of people. The Court does not find the
fact that the two investigator’s decisions were annulled by a
higher-ranking prosecutor to be evidence of the inefficiency of the
investigation, as from the materials in the case file it can be seen
that the investigating authorities made diligent efforts to establish
the circumstances of the case and to examine various versions of
events. Having received instructions from the higher-ranking
prosecutor, the investigators followed them to the letter in order to
eliminate or explain any inconsistencies or discrepancies which could
have arisen from their previous decision to close the case. They
performed a number of additional expert examinations, including a
ballistic test, assessed the quality of the medical services provided
to the applicant’s son in hospital in the aftermath of the
shooting and performed reconstructions at the scene with the
participation of all implicated persons. The Court observes that the
investigating authorities neither failed to look for corroborating
evidence nor exhibited a deferential attitude to the military
personnel.
The
Court is also not convinced by the applicant’s argument that
the domestic authorities failed to investigate the origin of the
bruises on her son’s body. It transpires from the documents
submitted by the parties that the experts who conducted the autopsy
of the applicant’s son gave a detailed description of his
injuries, and indicated the time and probable manner of their
occurrence. Statements by medical personnel who had examined the
applicant’s son before the incident corroborated the expert
opinions. The prosecutor’s office also inquired into the origin
of the injuries and, relying on the expert reports and witnesses
statements, gave an explanation of how they had been caused (see
paragraph 25 above). The Court therefore considers that the domestic
authorities thoroughly investigated that issue. Nor is the Court
persuaded that a forensic examination of the applicant’s son’s
signature on his explanation for his unauthorised leave on 9 February
2002 was required to make the investigation effective. The Court does
not consider that such an expert report could have had any
evidentiary value for the purpose of the investigation into the
events of 15 February 2002.
Further
assessing the effectiveness of the investigation, the Court observes
that the applicant was not granted victim status in the proceedings.
While the Court finds this omission on the part of the authorities
regrettable, it does not lose sight of the fact that the applicant
was interviewed on a number of occasions in the course of the
investigation and that she actively made use of available avenues to
complain of alleged defects in the inquiry, having successfully
challenged the investigator’s decisions to close the criminal
case. While reiterating the importance of involving the
next-of-kin of a deceased in the proceedings (see Hugh Jordan v.
the United Kingdom, no. 24746/94, §§ 109 and 133, ECHR
2001 III (extracts)), the Court is convinced, in the
circumstances of the instant case and in particular in view of the
applicant’s close involvement in the investigation, that the
defect arising from the authorities’ failure to assign her
victim status was thereby remedied and the capability of the
investigation to establish the circumstances of the case was not
undermined (see Golubeva v. Russia, no. 1062/03, §
91, 17 December 2009).
In the light of the above, the Court is satisfied that
the domestic authorities took reasonable steps to promptly secure the
evidence concerning the incident, including eyewitness testimony and
forensic evidence, and to establish the circumstances in which the
incident had taken place. The investigation was independent and was
conducted with sufficient expedition. The Court does not consider
that the various alleged shortcomings in the investigation to which
the applicant referred substantially hampered the carrying out of a
thorough, impartial and careful examination of the circumstances
surrounding the killing of her son.
There
has accordingly been no violation of the procedural obligation of
Article 2 of the Convention.
(ii) Concerning the alleged responsibility
of the State for the death of Mr Putintsev
(α) Establishment and evaluation of the
facts
The
Court firstly considers it necessary to reiterate the subsidiary
nature of its role and recognises that it must be cautious in taking
on the role of a first-instance tribunal of fact, where this is not
rendered unavoidable by the circumstances of a particular case (see,
for example, McKerr v. the United Kingdom (dec.),
no. 28883/95, 4 April 2000). Where domestic proceedings have
taken place, it is not the Court’s task to substitute its own
assessment of the facts for that of the domestic courts and, as a
general rule, it is for those courts to assess the evidence before
them. Although the Court is not bound by the findings of domestic
courts, in normal circumstances it requires cogent elements to lead
it to depart from the findings of fact reached by those courts (see,
mutatis mutandis, Matko v. Slovenia, no. 43393/98,
§ 100, 2 November 2006). Where allegations are made under
Articles 2 or 3 of the Convention, however, the Court must apply a
particularly thorough scrutiny (see Imakayeva v. Russia, no.
7615/02, § 113, ECHR 2006 XIII (extracts)).
The
Court has found that the domestic authorities conducted a thorough,
independent and effective investigation capable of elucidating the
circumstances in which the fatal incident happened (see paragraph 57
above). It does not see any reason to depart from the factual
findings made by the investigators and domestic courts. Those
findings were not arbitrary in the sense of being inconsistent,
contradictory or irreconcilable with the evidence. They were based on
forensic reports and witness statements. The domestic authorities had
the benefit of listening at first hand to the witnesses, observing
their demeanour and assessing the probative value of their testimony.
The Court therefore takes their establishment of the facts (see
paragraph 25 above) to be an accurate and reliable account of the
circumstances underlying the present case.
As
regards the evaluation of these facts from the standpoint of Article
2, the Court observes that the focus of concern of the criminal
investigation was whether the killing of the applicant’s son by
junior sergeant L. constituted a criminal offence under domestic law.
The standard applied by the domestic authorities was whether the use
of lethal force was legitimate, as opposed to whether it was
“absolutely necessary” under Article 2 § 2 in the
sense developed above (see paragraphs 23 to 25). Moreover, it must be
borne in mind that the courts’ finding was limited to a
decision of lawful killing and did not involve the assessment of the
legal and administrative framework defining the circumstances for the
use of force against a fleeing soldier, subject to detention for a
disciplinary offence. Against this background, the Court must make
its own assessment of whether the facts of the case disclose a
violation of Article 2 of the Convention.
The
Court, in determining whether there has been a breach of Article 2
in the present case, is not assessing the criminal responsibility of
those directly or indirectly concerned. Criminal-law liability is
distinct from international-law responsibility under the Convention.
The Court’s competence is confined to the latter.
Responsibility under the Convention is based on its own provisions,
which are to be interpreted and applied on the basis of the object
and purpose of the Convention and in the light of the relevant
principles of international law. The responsibility of a State under
the Convention, arising for the acts of its organs, agents and
servants, is not to be confused with the domestic legal issues of
individual criminal responsibility under examination in the national
criminal courts. The Court is not concerned with reaching any
findings as to guilt or innocence in that sense (see Avşar v.
Turkey, no. 25657/94, § 284, ECHR 2001 VII (extracts),
and McCann and Others, cited above, §§ 170-173).
Turning
to the circumstances of the present case, the Court observes that the
applicant’s son, who was serving a disciplinary sentence of
ten days’ detention for being absent without leave from
compulsory military service, was shot and killed by junior sergeant
L. in an attempt to prevent his escape from detention. It follows
that the case falls to be examined under Article 2 § 2 (b) of
the Convention.
(β) Assessment of the relevant legal
framework
The
Court reiterates that the investigating authorities, the Russian
courts and the Government cited Article 201 of the Statute of
Garrison and Sentry Service as the legal basis for the use of deadly
force against the applicant’s son. The Court notes that the
aforementioned regulation called for nondiscretionary use of lethal
force to prevent the escape of a member of the armed forces from
detention, to which he could have been sentenced for even a minor
disciplinary offence. The Court does not lose sight of the extremely
concise wording of the regulation which permitted the use of lethal
force. Apart from requiring a general warning that a firearm would be
used, Article 201 did not contain any other safeguards to prevent the
arbitrary deprivation of life. It did not make use of firearms
dependent on an assessment of the surrounding circumstances, and,
most importantly, did not require an evaluation of the nature of the
offence committed by the fugitive and of the threat he or she posed.
The Court observes that under the regulation in question it was
lawful to shoot any fugitive who did not surrender immediately in
response to an oral warning or the firing of a warning shot in the
air (see paragraph 33 above). The laxity of the regulation on the use
of firearms and the manner in which it tolerated the use of lethal
force were clearly exposed by the events that led to the fatal
shooting of the applicant’s son.
Such
a legal framework is fundamentally deficient and falls well short of
the level of protection “by law” of the right to life
that is required by the Convention (see Nachova and Others v.
Bulgaria [GC], nos. 43577/98 and 43579/98, § 100, ECHR
2005 VII).
The
Court reiterates the Government’s argument that the requirement
of “absolute necessity” was inherent in Article 201.
However, it is not convinced by the Government’s
interpretation. As opposed to the provisions of the Statute of
Military Service, which provided for the use of firearms “as a
measure of last resort” or only “if it [was] impossible
to use other means and measures” in an exhaustive list of cases
not covering sentry service (see paragraph 32 above), Article 201 did
not make any room for the proportionality requirement.
The
Court therefore finds that there was a general failure by the
respondent State to comply with its obligation under Article 2 of the
Convention to secure the right to life by putting in place an
appropriate legal and administrative framework on the use of force
and firearms by military sentries.
(γ) Assessment of the actual use of
force and the authorities’ conduct preceding the incident
It
was undisputed that the applicant’s son was subject to ten
days’ detention for a non-violent offence. On 15 February 2002,
following an altercation with junior sergeant L., both the
applicant’s son and Mr L. were sent to the military hospital
for a medical examination. On the way back from the hospital, the
applicant’s son started running away from his sentry, Mr L.,
and escorting officer K. His attempt to escape was accompanied by
foolishly inviting the officers to catch him but did not involve any
use of violence. He was not armed nor did he represent a danger to
the convoy or third parties, a fact of which both Mr L. and officer
K. must have been aware.
Having
regard to the above, the Court considers that in the circumstances of
the present case any resort to potentially lethal force was
prohibited by Article 2 of the Convention, regardless of any risk
that the applicant’s son might escape (see, for identical
reasoning, Nachova and Others, cited above, §
107). It is the Court’s long-standing approach not to consider
recourse to potentially deadly force as “absolutely necessary”
where it is known that a person escaping from lawful detention poses
no threat to life or limb and is not suspected of having committed a
violent offence.
In
addition, the conduct of Mr L., the junior sergeant who shot the
applicant’s son, calls for serious criticism in that he used
grossly excessive force. It appears that there were other means
available to prevent the applicant’s son’s escape. The
applicant’s son began his attempted escape in the grounds
adjacent to the military hospital. He passed through the guarded
gates of the hospital grounds without any attempt being made to stop
him. He then continued running towards the checkpoint of the military
unit, being observed by soldiers guarding it. However, once again no
one tried to stop him. Furthermore, officer K. was in hot pursuit
after the applicant’s son, with merely twenty metres separating
them when Mr Putintsev was shot. The personnel of the military unit
had cars. The applicant’s son was running in the middle of the
day, along the road between two long fences separating different
parts of the grounds of the military unit. He would have been clearly
visible for sufficient time to find an alternative solution to the
hasty decision to open fire. Moreover, the applicant’s son’s
behaviour was apparently predictable, since, during his previous
unauthorised leave, he had been found in the local village closest to
the military unit’s grounds.
Finally,
the Court is unable to overlook other aspects of the authorities’
conduct preceding the actual use of force. It was known to the
commanding officers that the applicant’s son, who had
experienced psychological problems in adjusting to the life in the
army, suffered from depression and had already once left the unit
without authorisation, was prone to repeat his attempt to leave
military service. While the applicant’s son was warned of the
consequences of any further attempt to escape, there is no indication
that Mr L. received clear instructions about the amount of force
necessary in the event that the applicant’s son made a repeated
attempt to escape or that Mr L. was provided with some guidance to
minimise the risk of loss of life. Furthermore, the Court finds it
open to criticism that Mr L., the same person with whom the
applicant’s son had a physical altercation shortly before the
shooting, was entrusted with the task of escorting him to the
hospital. While the Court is aware of officer K.’s presence in
the convoy, it was Mr L. who was performing the duty of an armed
sentry and it was he who took the decision to use force to prevent
the escape. Although the Court must be cautious about revisiting
events with the wisdom of hindsight (see Bubbins, cited above,
§ 147), it cannot but conclude that the applicant’s son’s
convoy was organised in an unconsidered manner and that the decision
taken by the commandant to entrust Mr L. with the task of escorting
the applicant’s son lacked the necessary degree of caution. It
follows from the above that the authorities failed to minimise to the
greatest extent possible recourse to lethal force and any risk to the
life of the applicant’s son.
(δ) The Court’s conclusion
The
Court finds that the respondent State failed to comply with its
obligations under Article 2 of the Convention in that the relevant
legal framework on the use of force was fundamentally deficient and
that the applicant’s son was killed in circumstances in which
the use of firearms to prevent his escape was incompatible with
Article 2 of the Convention. There has therefore been a violation of
Article 2 of the Convention under its substantive limb.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly,
the Court has examined the other complaints submitted by the
applicant. However, having regard to all
the material in its possession, and in so far as these complaints
fall within the Court’s competence, it finds that they do not
disclose any appearance of a violation of the rights and freedoms set
out in the Convention or its Protocols. It follows that the remainder
of the application must be rejected as being manifestly ill founded,
pursuant to Article 35 §§ 3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 45,000 euros (EUR) in respect of non pecuniary
damage.
The
Government submitted that a finding of a violation would in itself
constitute sufficient just satisfaction in the case.
The
Court, however, finds that the applicant suffered distress and
frustration which cannot be compensated solely by the finding of a
violation. Making its assessment on an equitable basis, the Court
awards the applicant the sum claimed in full, plus any tax that may
be chargeable on the above amount.
B. Costs and expenses
The
applicant did not claim any amount for costs and expenses incurred
before the domestic courts and before the Court. Consequently, the
Court does not make any award under this head.
C. Default interest
The
Court considers it appropriate that the default interest rate should
be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint concerning the
applicant’s son’s killing in the army and the quality of
the investigation into the incident admissible and the remainder of
the application inadmissible;
Holds that there has been no violation of
Article 2 of the Convention under its procedural limb;
Holds that there has been a violation of Article
2 of the Convention under its substantive limb;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 45,000
(forty-five thousand euros) in respect of non-pecuniary damage, to be
converted into Russian roubles at the rate applicable at the date of
settlement, plus any tax that may be chargeable on the above amount;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 10 May 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Nina Vajić
Deputy
Registrar President
