Постановление Европейского суда по правам человека от 17.12.2009 «Дело Голубева (golubeva) против России» [англ.]

Город принятия

(Application No. 1062/03)
(Strasbourg, 17.12.2009)
*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 Golubeva v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Christos Rozakis, President,

Nina {Vajic}*,

*Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.

Anatoly Kovler,

Elisabeth Steiner,

Dean Spielmann,

Giorgio Malinverni,

George Nicolaou, judges,

and {Soren} Nielsen, Section Registrar,

Having deliberated in private on 26 November 2009,

Delivers the following judgment, which was adopted on that date:

1. The case originated in an application (No. 1062/03) 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 Mariya Grigoryevna Golubeva ("the applicant"), on 6 December 2002.

2. The applicant, who had been granted legal aid, was represented by Mr A. Brykin, a lawyer practising in the Altayskiy Region. The Russian Government ("the Government") were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3. The applicant complained, in particular, about the killing of her partner by the police.

4. On 5 May 2008 the President of the First Section decided to communicate the above complaint to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

5. On 27 August 2009 the President made a decision on priority treatment of the application (Rule 41 of the Rules of Court).

6. The Government objected to the joint examination of the admissibility and merits of the application. Having examined the Government's objection, the Court dismissed it.

I. The circumstances of the case
7. The applicant was born in 1930 and lives in the town of Biysk in the Altayskiy Region.

A. Events of 24 August 1999
1. The applicant's version of the events
8. The applicant stated that the residents of her block of flats were embroiled in a conflict with a group of teenagers who frequently gathered in front of the building to drink alcohol, litter the yard and make noise until late at night.

9. On 24 August 1999 several residents, including the applicant and her partner Mr Sh., tried to disperse the teenagers. A quarrel followed. One of the teenagers swore at them. Mr Sh. retorted that "youngsters like these should be killed". The teenagers ran immediately to the nearby police station where they complained that Mr Sh. had threatened them with a gun and had fired a shot at them.

10. Several minutes later several police officers came running to the spot and required that Mr Sh. surrender his gun. They were drunk. Mr Sh. denied having a gun. The applicant told him to go home and he left. The policemen did not attempt to stop him.

11. After a while the police officers decided to arrest Mr Sh. and rang his doorbell. Mr Sh. refused to open it. The neighbourhood police officer (участковый) Mr T. was determined to get into the apartment through the balcony and called the fire brigade, which brought an extension ladder.

12. Mr T. and another police officer, Mr K., climbed the ladder and broke the balcony window. The applicant heard two shots. She believed that Mr T. had fired the first shot at Mr Sh. and then fired in the air. When she entered the flat she saw that Mr Sh. was dead.

2. The police officers' version
13. At about 5 p.m. on 24 August 1999 the neighbourhood police officer Mr T. heard a gunshot and saw several teenagers running towards him. They said that a man had just fired a shot at them and pointed at Mr Sh. He saw Mr Sh. give something to the applicant, who then entered the building. He ran after her and made her come back. At that time other police officers arrived on the scene.

14. Mr Sh. behaved aggressively, in particular brandishing a shovel at the police officers, and Mr T. thought that he was drunk. He ordered Mr Sh. to surrender his gun. Mr Sh. denied having any weapon. Mr T. wanted to search him but was prevented from doing so by other residents of the block of flats. Mr Sh. took advantage of the situation and escaped to his flat. He locked the door and refused to let Mr T. in. Mr T. asked the applicant to open the door or give him the key, but she refused.

15. Mr T. asked one of the police officers to watch the door. He then called the police officer on duty and asked for instructions. The police officer instructed him to force the door open and arrest Mr. Sh. As he was unable to force the door open, Mr T. decided to get into the flat through the balcony and asked the officer on duty to call the fire brigade. At that moment a patrol team arrived at the scene.

16. Once the fire brigade had arrived, Mr T. and a police patrol officer Mr K. climbed the extension fire ladder. Mr Sh. attempted to prevent them from entering the balcony. He threatened to kill them and brandished a gun-like object. Mr T. ordered Mr Sh. to lay down his weapon, warned him that he would shoot and fired in the air. Mr Sh. hit Mr T. on the head with the heavy metal object he was holding. Mr K., who was standing behind Mr T. on the ladder, saved him from falling from the third floor. When Mr Sh. attempted to hit Mr T. a second time, Mr T. shot at Mr Sh., fatally wounding him. The police officers carried Mr Sh. into the bedroom and immediately called an ambulance. The doctors certified Mr Sh. dead and examined Mr T.

B. Internal inquiry by the Interior Department
of the Altayskiy Region
17. The Interior Department of the Altayskiy Region conducted an internal inquiry into the incident. Having inspected the scene of the incident and having questioned the police officers involved, it established the following facts:

- Mr T. and other police officers believed that Mr Sh. was armed as they had heard a gunshot and witnesses had stated that he had fired at them;

- Mr Sh. had been aggressive and apparently drunk;

- the residents of the block of flats prevented Mr T. from searching Mr Sh. and, by retaining the police officers, gave him an opportunity to escape to his flat;

- Mr T. called the police station of the Vostochniy District of Biysk for instructions. The police officer on duty, Major D., told him to call the Biysk police station;

- Mr T. called the Biysk police station. The police officer on duty, Major P., ordered him to force the door open and arrest Mr Sh. Mr T. explained to Major P. that he would be unable to force the door open as he did not have the requisite equipment. He further stated that it would be possible to access the flat through the balcony. Major P. called a fire brigade;

- After Mr T. and Mr K. had climbed up an extension fire ladder, Mr Sh. barred their access to the balcony and brandished a gun-like object at them;

- Mr T. ordered Mr Sh. to put down his weapon and fired a warning shot in the air;

- Mr Sh. hit Mr T. on the head and nearly threw him down from the third floor. After Mr Sh. had attempted to hit Mr T. a second time, Mr T. fired at him;

- The police officers called an ambulance. The ambulance doctors established that Mr Sh. was dead and that Mr T. had concussion.

18. In his report of 23 September 1999 an acting head of the Interior Department of the Altayskiy Region concluded that Mr T. had acted in compliance with the rules governing the conduct of the police. The use of weapon had been justified by the circumstances and lawful in accordance with section 15 (1)(2) of the Police Act. On the other hand, he found that the casualty had occurred as a result of negligence on the part of the officers on duty, Major D. and Major P., who had not recorded the information received from Mr T., had not informed their superiors about the on-going incident and had not sent reinforcements to Mr T. He ordered that Major D. be demoted and Major P. be reprimanded. He further reprimanded the head of the police station of the Vostochniy District of Biysk and the head of the Biysk police station for unsatisfactory training and poor discipline of their subordinate officers.

C. Criminal investigation
19. On 24 August 1999 the prosecutor's office of the Priobskiy District of Biysk opened criminal proceedings in respect of Mr Sh.'s resistance to the police.

20. On the same day the prosecutor's office inspected the flat and seized a metal pestle stained with blood. No gun was found in the flat.

21. On 25 August 1999 the case was transferred to the prosecutor's office of the Vostochniy District of Biysk. The prosecutor's office inspected the flat anew and seized a cartridge case.

22. On 25 August 1999 the experts performed an autopsy on Mr Sh.'s body. They noted a gunshot wound to his chest and several bruises and abrasions to his body and head. The experts described Mr Sh.'s position at the moment of the shot and the trajectory of the bullet. They concluded that the wound had been fatal. They further stated that it was highly probable that the bruises and abrasions on Mr Sh.'s face had been the result of his falling and hitting a hard object, while the bruises on his wrists, right arm, chest and right buttock had been caused as a result of his being gripped and dragged. All injuries had been inflicted shortly before the death, most likely while he was dying. The level of alcohol in Mr Sh.'s blood and urine showed that he had been moderately intoxicated.

23. On 7 October 1999 an expert examined Mr T.'s medical record. He noted that on 24 August 1999 Mr T. had been taken to hospital, where he had remained until 7 September 1999. He had been diagnosed with an injury to his head and concussion. The expert concluded that the injury could have been received on 24 August 1999. He also noted that there was no indication of alcohol intoxication in Mr T.'s medical record.

24. On 22 October 1999 experts carried out blood group tests. The tests revealed that the blood on the pestle could have been Mr Sh.'s. It could not have been Mr T.'s.

25. On 26 October 1999 a ballistic examination was performed.

26. The prosecutor questioned Mr T. and the applicant, who gave their versions of the incident. One of the teenagers was also questioned. She testified that Mr Sh. had been in possession of a gun and had fired at her and her friends.

27. On 24 October 1999 the prosecutor's office of the Vostochniy District discontinued the criminal proceedings, those against Mr Sh. because he was dead, and those against Mr T. for the absence of corpus delicti in his actions.

28. On 23 November 1999 the decision was annulled by a supervising prosecutor, who transferred the case to the prosecutor's office of Biysk and ordered an additional inquiry.

29. In the course of the additional inquiry the prosecutor questioned police officer Mr K. and other police officers who had participated in the incident of 24 August 1999. They confirmed Mr T.'s testimony.

30. The teenagers testified unanimously that Mr Sh. had threatened them with a gun and had fired at them. They also stated that Mr Sh. had quarrelled with the police officers and had brandished a shovel at them.

31. The residents of the applicant's block of flats testified that Mr Sh. had not had any weapon and had not fired at the teenagers. The policemen who had been called by the teenagers had been drunk and had behaved rudely. When Mr Sh. had expressed his intention to leave, the policemen had not tried to stop him. However, subsequently they had decided to enter his flat through the balcony and arrest him. Although all the residents had assured them that Mr Sh. did not present any danger and had urged them to postpone the inquiry into the incident until the following morning, the police officers persisted in their attempt to arrest Mr Sh. immediately. In the witnesses' opinion climbing onto the balcony had been inopportune and unnecessary. They had all heard the police officer fire two shots. Some of them stated that the first shot had been aimed at Mr Sh. and the second in the air.

32. One of the applicant's neighbours, Mr G., stated that on 24 August 1999 he had been in his flat. He had heard a gunshot and looked out of the window. He had seen a man chasing a group of teenagers. A police officer had appeared and tried to arrest them. However, several women had prevented the police officer from approaching the man who had escaped to his flat. He had then seen two police officers climbing an extension ladder and attempting to access the balcony of the man's flat. He had heard one of the policemen shout a warning, fire in the air and, several moments later, fire a second shot. The police officer had then accessed the balcony. Mr G. was sure that the first shot had been fired in the air but he could not tell what the direction of the second shot had been. He stated firmly, however, that both shots had been fired while the police officer was still on the ladder and not yet on the balcony.

33. The prosecutor's office also questioned Major D. and Major P., who had been on duty on 24 August 1999 and had given instructions to Mr T. on the telephone. They denied giving any orders to Mr T. They had had the impression that Mr T. was strongly convinced that Mr Sh. was armed. They had offered to send reinforcements, but Mr T. had declined. Mr T. had asked for permission to enter the flat through the balcony, and that permission had been given to him.

34. The prosecutor studied the ambulance records. Mr T. had been examined by the ambulance doctors who had been called to the scene on 24 August 1999. The records did not contain any indication that he had been intoxicated.

35. Finally, the prosecutor questioned a ballistic expert who described the bullet trajectory. In particular, she stated that the bullet had gone upwards then ricocheted to the right and back. She also affirmed that a forensic simulation of the incident on the balcony would be inconclusive. It would be impossible to simulate identically the conditions in which the shooting had occurred, for the following reasons: firstly, blank bullets had a different trajectory as compared with live bullets; secondly, it would be necessary to simulate the position of the person who had fired the shot to within