July 05, 2021
Dr Dilek Kurban (Fellow and Lecturer, Hertie School, and Max Weber post-doctoral fellow, EUI, 2021-2022)
What should a supranational human rights court do when faced with a case concerning extrajudicial execution of civilians by a state agent? Certainly not what the European Court of Human Rights (ECtHR or the Court) has done in the case of Gasangusenov v. Russia: framing the case as an unintended consequence of counter-terrorism.
In a unanimous judgment issued on 30 March 2021, the Third Chamber of the ECtHR found a substantive violation of Article 2 of the European Convention on Human Rights (ECHR) in a case concerning the killing of two civilians. It based its finding on the disproportionate use of lethal force during an alleged special anti-terrorism operation, rather than on an intentional and arbitrary killing by a state agent, seemingly covered up by the entire state apparatus. Doing that, the Court contradicted its own statement of the facts of the case. It also engaged in inconsistent judicial reasoning by, on the one hand, concluding that the authorities had “staged” the crime scene and, on the other, not accepting the applicant’s claim that the aim was to cover up an extrajudicial execution. More broadly, the ECtHR demonstrated, once again, its lack of appreciation for the indispensable role of supranational courts for victims of state violence in authoritarian contexts. In calling for an effective domestic investigation into the killings, the ECtHR acted with the presumption that Russian courts are able and willing to hold the law enforcement accountable for gross human rights violations – presumption disproven by its own jurisprudence on Russia.
At the time of the events, the applicant and his wife were living with their sons Gasangusen and Nabi Gasangusenov in a village in the Shamilskiy district in Dagestan. The Gasangusenov brothers worked as shepherds on a grazing land situated 3-4 kilometres from the village. During June-August 2016, several terrorist attacks were carried out by illegal armed groups in Shamilskiy, including the assassination of a judge, the blowing-up of a television tower and the burning down of a school.
On 23 August 2016, at around 9 pm, the Gasangusenov brothers called their mother to say that they were on their way back from grazing, and yet did not return home. Early next morning, the applicant’s wife asked her relative I.M. to look for her sons. At about 6 am, I.M. found the Gasangusenov brothers’ bodies at about 1 km from the village. The bodies were next to each other, face down, in large black warm jackets with hoods pulled over their heads and barefoot. There were automatic machine guns on their backs with gun belts on the necks, and army boots and rucksacks nearby. At about 7 am, several police officers arrived with two stretchers and conducted a brief visual examination of the bodies, establishing thirteen and seventeen shots on Gasangusen and Nabi.
In the early hours of 24 August, the acting head of the Shamilskiy police station, Maj. I.A., issued an official statement that “during a special operation” carried out at about 9.25 pm on 23 August, unidentified persons fired shots at police law-enforcement officers and “the criminals were eliminated” by returned fire.
Criminal investigations were opened against the late Gasangusenov brothers for attempting on the life of a law enforcement officer and firearms trafficking. It was established that on 23 August, Russian Federal Security Service (FSB) agents carried out a special operation to discover the routes of movement and bases of illegal armed groups in Shamilskiy, in which local officers in Dagestan did not participate. The FSB officers who participated in the operation testified that they had not engaged in any shooting or heard of the Gasangusenov brothers. The investigation was terminated for failure to confirm that the brothers had attacked the law enforcement officers.
In November 2017, a criminal case was opened into the killings of Gasangusenov brothers. The applicant told the investigators that on the day before the incident, a police officer had visited his sons in the grazing land and asked them about the route and time of their regular departure for home. The applicant’s brother confirmed this, based on his conversation with his nephews. An officer from the Shamilskiy police station testified that Maj. I.A. had ordered him to prepare the statement of 24 August 2016. Two officers from the Dagestan Counterterrorism Centre testified that, on the night of the incident, they participated in a special operation 2 km. away from the brothers’ village, where they arrived on 23 August at 11.40 pm. They also declared arriving at the site of the incident at 6 am the next day, after the alleged gunfight between law enforcement officers and the criminals, and finding the bodies. The applicant’s nephew testified that at around 9.30 pm on 23 August 2016, several minutes after he had phoned Nabi Gasangusenov, he and his cousin heard machine shots. Fifteen minutes later, they heard several single shots. They called Nabi back several times, to no avail. Eventually, someone picked up the phone, hung up without saying anything and switched the telephone off. At the date of the ECtHR judgment, the investigation was pending.
On 6 April 2018, a criminal investigation was opened against Maj. I.A. on charges of filing a false report and neglect of duty. The prosecutor alleged that contrary to Maj. I.A.’s report, law-enforcement agencies had not taken part in the incident resulting in the death of the applicant’s sons. No further information was available regarding the progress of this case.
Before the ECtHR, the applicant claimed that his sons were intentionally killed by Maj. I.A., who wanted to boost his professional career with a successful counter-terrorism record, taking advantage of recent terrorist attacks in the region. He claimed that the coats, the boots, and the rucksacks found on and around the bodies did not belong to his sons. The applicant also noted that in preparing the brothers for burial, his nephew and several relatives all observed that the bullets on their clothing did not match those on their bodies.
In its discussion of the substantive limb of the right to life, the ECtHR first addressed whether there was a special operation on 23 August 2016 and whether the applicant’s sons had been killed during that operation. It dismissed as unspecific the government’s argument that the applicant’s sons had been killed by unidentified individuals. The Court noted, among others, that the bodies were found in warm clothing in August and yet had been barefoot, and that the number of gunshot wounds on the bodies did not match the holes on their clothes. Therefore, it concluded that the brothers had been killed under different circumstances than those under which their bodies had been found and that the crime scene had been staged. The ECtHR also took note of the news report regarding the ‘elimination’ of two alleged criminals during a special operation carried out at 9.25 pm on 23 August 2016, the FSB’s official letter confirming that a special operation had taken place, and the Russian criminal investigators’ statement that the brothers had been killed by law enforcement officers during a special operation. As a result, the ECtHR concluded that the applicant’s sons had been killed by state agents during a special operation.
The Court then assessed whether the use of lethal force was absolutely necessary during that operation. It noted that the special operation on 23 August had been planned in advance, as evidenced by the deployment of FSB officers from Moscow to capture members of illegal armed groups operating in the area. Recalling the principles established in earlier case law (see Bubbins v. the United Kingdom), the Court concluded that no serious consideration had been devoted to the planning and execution of the special operation to minimize the use of lethal force or incidental deaths. Noting that the police officers questioned during the domestic investigations did not provide any information concerning the leader and members of the operation or the circumstances surrounding the killing of the applicant’s sons, the ECtHR concluded that the use of lethal force was not absolutely necessary, as required by Article 2.
As for the procedural aspect of the right to life, the ECtHR recalled the essential parameters established in its earlier case law concerning the effectiveness of domestic investigations: adequacy, promptness, reasonable expedition, independence, and the involvement of the deceased person’s family (see Mustafa Tunç and Fecire Tunç v. Turkey). The ECtHR noted the authorities’ superficial examination of the crime scene, and failure to find out why the deceased had no footwear or were in someone else’s warm cloths and to establish the commander and members of the operation. It also took note of the circumstances of the alleged exchange of gunfire between the brothers and the law enforcement, and the delay in the initiation of the investigations. Therefore, the Court concluded that the authorities failed to carry out an effective investigation into the incidents.
In sum, the ECtHR found a violation of Article 2 of the Convention on its procedural and substantive limbs.
This is a strange judgment due to 1) the disconnect between the facts of the case and the ECtHR’s reasoning in finding a substantive violation of Article 2, and 2) the inconsistent reasoning.
The judgment hinged on the crucial question of whether the brothers were killed by federal agents during a counter-terrorism operation or were murdered intentionally by a local agent for personal gain. The ECtHR’s conclusion in favour of the first scenario is not supported by the facts of the case. The first problem is the applicant’s repeated assertions that Maj. I.A. intentionally killed his sons for professional advancement. Maj. I.A. seems to have indeed been promoted to head of the police station shortly after the killings, since the Russian government did not dispute the applicant’s assertion in this regard. Secondly, and more importantly, FSB officers who had participated in the special operation near the applicant’s village told domestic investigators that the operation took place 2 km away from the site of the killings, that they had never heard of, seen or killed the Gasangusenov brothers, and that they arrived at the site of the incident after the alleged gunfight between law enforcement and ‘criminals’. Another discrepancy between their testimonies and Maj. I.A.’s official statement concerns the timeframe. While the latter announced that the special operation took place at about 9.25 pm on 23 August, federal counter-terrorism agents testified that they arrived at the site of the operation on 11.40 that evening and in the site of the killings at 6 am the next day. Also noteworthy are the family’s assertions concerning the clothes and bullets on the bodies of Gasangusenov brothers – which were, again, not disputed by the government. The applicant’s nephew told domestic investigators that in preparing the brothers for burial (in the presence of an investigator and medical expert), he and several relatives all observed that the bullets on their clothing did not match those on their bodies (para. 59). This, too, seems to not have been disputed by the government. It’s noteworthy that the officers who arrived at the scene with two stretchers took the bodies away and ‘later’ released them to the family for burial (para. 11). The reasonable conclusion to draw from the ECtHR’s summary of the facts seems to be that the brothers were intentionally killed by a local police officer. Whether federal counter-terrorism agents had an active role in the killing or ‘only’ covered it up by giving the appearance of a special operation is unclear.
In fact, the ECtHR concluded that the crime scene was ‘staged’ to cover up the fact that ‘the brothers had been killed under different circumstances’ (para. 79). Just when the reader expects the ECtHR to rule, therefore, that the available facts do not support a finding of death by lethal force during a counter-terrorism operation, it concludes to the contrary. Moreover, taking note of the FSB’s official letter and the Russian investigators’ statement in support of the special operation argument, the ECtHR failed to consider the FSB agents’ testimonies to Russian investigators that they had nothing to do with the death of the brothers. Also absent in the ECtHR’s reasoning is any reference to the ongoing domestic criminal investigation where Maj I.A. is charged with issuing a false report regarding the incidents. Notably, the prosecutor’s indictment seems to claim not just that federal agents were not involved in the killings, but that no law enforcement agency was (para. 67). If this is indeed the prosecutor’s allegation, the applicant’s claim that his sons were intentionally killed by Maj. I.A. becomes all the more credible. In light of so much uncertainty surrounding the role of federal counter-terrorism agents in the death of the applicant’s sons, the ECtHR’s conclusion is puzzling.
In sum, the ECtHR treated this case as an incidental killing arising from the unnecessary use of lethal force during a counter-terrorism operation rather than an extrajudicial execution by a state agent. While both scenarios raise state responsibility for substantive violations of the right to life, there are crucial differences between the two. Under the former, the necessity and legitimacy of the special operation would be difficult to question, particularly in light of several acts of terrorism which took place in the Shamilskiy district during July-August 2016. The ECtHR is known to grant governments a wide margin of appreciation in matters of counter-terrorism and to limit its scrutiny to proportionality analysis (see Oğur v. Turkey) without questioning the necessity of security operations as such. Here, too, the Court accepted the government’s argument that the operation was prompted by recent terrorist attacks in the region (para. 86). Yet, even for ECtHR standards, the deference to domestic authorities in this regard is striking. The Court did not ask, for example, whether the Russian agents had credible evidence to suspect that the brothers were engaged in terrorism, limiting its analysis to the necessity of the use of lethal force.
The second scenario, the one which the ECtHR did not embrace, would suggest an intentional and arbitrary killing by a state agent, subsequently shielded from criminal accountability by domestic courts. Such an approach would require the Court to abandon the ‘beyond reasonable doubt’ standard of proof and base its reasoning on circumstantial evidence. In this case, in the absence of direct evidence to support the special operations argument, the ECtHR would have to take into account the totality of indirect evidence, such as witness testimonies (and the discrepancies between them), to make a logical inference that the applicant’s sons must have been victims of extrajudicial execution. Such a ruling would also have political implications. Compared to an Article 2 violation based on the disproportionate use of lethal force, relatively easy to muster for national governments, an ECtHR finding of extrajudicial execution by a state agent would arguably cause diplomatic problems between Moscow and Strasbourg.
There was, of course, a third option: to hold a fact-finding trial to question the applicant, witnesses and implicated government officials in order to establish the facts beyond reasonable doubt. But, in the post-enlargement world where the ECtHR has practically abandoned this practice, uttering this alternative is often considered to be hopeless idealism.
Gasangusenov illustrates, once again, the indispensable role of supranational courts for victims of state violence by authoritarian regimes. Where domestic judicial authorities are reluctant or unable to establish the facts in cases concerning systematic and gross human rights violations, supranational fact-finding is the only means of finding out what has happened and establishing the nature and extent of state responsibility. It is imperative that the ECtHR develops a differentiated approach in its oversight of authoritarian regimes (as opposed to liberal democracies). This suggests, inter alia, engaging in fact-finding hearings where domestic judicial authorities do not conduct effective investigations, relaxing its evidentiary standard and burden of proof where governments do not cooperate in sharing the material evidence in their exclusive possession, and adjusting its substantive doctrines to adequately adjudicate systematic and gross human rights violations. But of course, at a time when subsidiarity is the buzz word in Strasbourg and the ECtHR’s primary concern seems to be easing its case docket rather than providing individual justice, Mr. Gasangusenov is told to wait indefinitely for the Russian courts to establish why and how his sons were murdered and to hold the perpetrators accountable.