Last Updated on April 28, 2020 by LawEuro
THIRD SECTION
CASE OF NIGMATULLIN AND OTHERS v. RUSSIA
(Applications nos. 47821/09 and 9 others – see appended list)
JUDGMENT
STRASBOURG
4 February 2020
This judgment is final but it may be subject to editorial revision.
In the case of Nigmatullin and Others v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Alena Poláčková, President,
Dmitry Dedov,
Gilberto Felici, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 14 January 2020,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in ten applications 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”) on various dates indicated in the appended table. The President of the Section acceded to the fifth applicant’s request not to have his name disclosed (Rule 47 § 4 of the Rules of Court).
2. The Russian Government (“the Government”) were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.
3. Notice of the applications was given to the Government. The Government did not object to the examination of the applications by a Committee.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. Between 2006 and 2013, the applicants were arrested on suspicion of having committed criminal offences in different regions of Russia. They alleged, among other things, that they had been ill-treated by the police.
5. The relevant facts in respect of each application are set out below.
A. Nigmatullin v. Russia, no. 47821/09
1. The events of 23 November 2007
6. According to the applicant, on 23 November 2007 around 3 p.m. police officers of the Yalutorovskiy District Department of the Interior (ROVD) stopped the applicant on a road in the Tyumen Region. The applicant was taken to the office of the Department for Combatting Organised Crimes of the Tyumen Region (УправлениепоборьбесорганизованнойпреступностьюпоТюменскойобласти – “the UBOP”), where, according to him, he was ill-treated until 11 p.m. forcing him to confess to a crime.
7. On 25 November 2007 the applicant was placed in a remand prison in the Tyumen Region.
8. On 3 December 2007 a forensic expert examined the applicant and concluded that he had no injuries. It appears that the applicant was not subsequently examined by a doctor.
2. The events of 19 May 2008
9. On 19 May 2008 at 1.55 p.m. the applicant was transferred to the police investigation premises, where, according to the applicant, he was beaten by the police, forced to wear a gas mask and subjected to electric shock.
10. On the same day at 6.50 p.m. the applicant was transferred to a temporary detention facility in the Tyumen Region. According to the facility’s medical records, the applicant had hematomas on both eyes, and a hyperaemic spot on the right shoulder.
3. Official inquiry into the alleged ill-treatment
11. On 29 August 2008 the applicant complained to the prosecutor about the police ill-treatment.
12. On 8 October 2008 the applicant’s criminal case was transferred to the Tyumen Regional Court for examination.
13. On 5 November 2008 the investigator issued a decision refusing to open a criminal case, referring mainly to the explanations of an UBOP officer, who had denied the use of any force against the applicant and it does not appear that any other evidence was examined.
14. On 14 May 2009 the applicant complained to the Kalininskiy District Court against the decision of 5 November 2008.
15. On 19 May 2009 the court refused to examine the applicant’s complaint since his criminal case was pending. On 30 June 2009 the applicant’s appeal against the court decision was dismissed.
4. Detention in the temporary detention facility
16. Between 19 May and 27 May 2008 the applicant was held in the temporary detention facility in Tyumen in a basement cell allegedly in inadequate conditions.
B. Kodzoyev v. Russia, no. 48648/09
1. The events of 1-11 June 2006
17. On 30 May 2006 officers of the UBOP of North Ossetia (УправлениепоборьбесорганизованнойпреступностьювСевернойОсетии) arrested the applicant in Moscow on suspicion of a crime. On 1 June 2006 he was transferred to the UBOP office in Vladikavkaz, North Ossetia, where, according to the applicant, he was ill-treated almost every day until 11 June 2006 and once every one or two weeks afterwards. The officers subjected him to electric shocks, placed needles under his nails, beat him with rubber truncheons and bottles filled with water.
2. Official inquiry into the alleged ill-treatment
18. On 28 June 2006 the applicant’s lawyer complained to the prosecutor about the applicant’s ill-treatment.
19. On 29 June 2006 the applicant underwent a forensic examination. According to forensic report no. 1301, he had bruises on the face and two abrasions on each elbow joint caused within three or four days before the examination. The injuries could have been inflicted by a hard blunt object.
20. On 29 June 2006 the applicant gave an explanation to the investigator denying his previous complaint of ill-treatment. On the same day the investigator issued a refusal to open a criminal case, referring to the applicant’s explanation.
21. On 22 June 2009 the applicant challenged the refusal of 29 June 2006 before the Leninskiy District Court alleging that his explanation had been given under pressure. On 30 June 2009 the court found his complaint unfounded. On 12 August 2009 the Supreme Court of North Ossetia dismissed his appeal.
3. Proceedings related to the applicant’s detention on remand
22. On unspecified date following the applicant’s arrest on 30 May 2006, a court ordered his detention on remand. The measure was extended until the applicant’s conviction on 2 February 2011.
C. Daurbekov v. Russia, no. 4057/10
23. At the time of the events the applicant was serving his sentence in correctional colony no. 5 in the Vladimir Region. On 22 December 2006 he was transferred to a remand prison in Vladikavkaz, North Ossetia, on suspicion of having committed a crime.
1. The events of 6 and 13 March 2007
24. According to the applicant, on 6 March 2007 UBOP officers ill‑treated him in the remand prison beating him on the head with a plastic bottle filled with water forcing him to confess.
25. On 13 March 2007 the officers took him to an unknown location and again ill-treated him, strangled him with a plastic bag, beat him with a bottle, subjected him to electric shocks, and threatened him with rape.
26. On the same day in the remand prison the applicant asked for an ambulance. According to the ambulance records, the applicant had hematoma on the forehead, brain concussion, damage of the soft tissues on head and face, and damage of internal organs.
2. Official inquiry into the alleged ill-treatment
27. On 30 March 2007 the applicant complained to the prosecutor about the ill-treatment. It does not appear that any inquiry was ever opened into the events.
28. On 27 June 2007 the applicant underwent a forensic examination. According to forensic report no. 1454, the applicant had an abrasion on the left elbow joint. The expert concluded that he had no injuries resulting from electric current.
29. On 29 December 2008 the Supreme Court of North Ossetia found the applicant guilty as charged. On 21 July 2009 the Supreme Court of Russia upheld the conviction. The courts examined and rejected his complaints of ill-treatment and found that the case materials contained “no objective evidence of the applicant’s ill-treatment”.
D. Kamenskiy v. Russia, no. 51696/10
1. The events of 3 and 4 June 2009
30. According to the applicant, on 3 June 2009 at 3 p.m. police officers of the Teykovskiy ROVD of the Ivanovo Region arrived at his home and, in the presence of the applicant’s mother, invited him to follow them to the police department for questioning. The applicant agreed.
31. According to the applicant, between 5 and 9 p.m. in the police department the officers ill-treated him with a view to extracting a confession, beat him with a rubber truncheon, strangled him with a plastic bag, subjected him to electric shocks and attempted to rape him with the truncheon.
32. At 9 p.m. the officers drew up a report on the applicant’s administrative detention for minor hooliganism. According to the report, the applicant had no injuries on his body.
33. On 4 June 2009 the ambulance was called to police department. According to the ambulance record, the applicant had hematomas on his left scapula and linear hematomas on the back.
2. Official inquiry into the alleged ill-treatment
34. On 5 June 2009 the applicant complained to the investigator about the ill-treatment.
35. On 5 June 2009 the applicant underwent a forensic examination. According to forensic medical report no. 1866, he had two bruises on the forehead, a bruise on the left ear, on the neck, two bruises on the right forearm, two bruises on the chest, numerous bruises on the left shoulder, over the back, hips, and legs. Injuries were inflicted by hard blunt objects between one and four days before the examination.
36. Between 18 June 2009 and 2 October 2009 the investigator issued six decisions refusing to open a criminal case, five of which were quashed on various dates by the superior authorities as incomplete.
37. On 15 December 2009 the Teykovskiy District Court allowed the applicant’s complaint against the refusal of 2 October 2009. The court found that there had been conflicting versions of the applicant’s arrest as submitted by the officers. In particular, according to one version, the applicant was arrested in connection with the administrative offence and, according to the other version, he was suspected of a crime. The investigator also had failed to explain the applicant’s numerous injuries.
38. On 16 February 2010 the Ivanovo Regional Court upheld the first‑instance court decision.
39. On 15 October 2010 the investigator issued the latest known decision not to open a criminal case, according to which the applicant had sustained injuries during his arrest as he had aggressively resisted it. The decision contained the explanations of officer S. that the applicant had been taken to the police department around 5.00 p.m. on 3 June 2009 on suspicion of having committed a number of robberies.
E. A.C. v. Russia, no. 53082/10
40. On 17 May 2006 police officers of the Criminal Police Department in Tyumen (оперативно-розыскнаячастьприГУВДпоТюменскойобласти) arrested the applicant on suspicion of a murder and took him to the police department.
1. The events of 18 May 2006
41. According to the applicant, on 18 May 2006 he was taken to a temporary detention facility, where he was ill-treated by the police. He was beaten with a view to extracting confession, strangled with a bag and subjected to electric shocks.
42. According to forensic medical report no. 4067 of 18 May 2006, the applicant had a scratch on the left shoulder inflicted a day earlier. According to forensic report no. 4115 of 19 May 2006, he had a scratch on both hands inflicted between one and three days before the examination, linear bruises on the body and right leg inflicted between one and five days before the examination. According to forensic report no. 4284 of 24 May 2006, the applicant had bruises on the chest, back, right ankle inflicted between two and fourteen days before the examination.
2. Official inquiry into the alleged ill-treatment
43. On 23 June 2006 the applicant complained to the prosecutor about the ill-treatment.
44. On 3 July 2006 the investigator issued a first decision refusing to open a criminal case for the lack of evidence of crime. Between 2006 and 2010 the investigators issued at least seven refusals to open a criminal case.
45. According to the latest decision refusing to open a criminal case of 14 October 2010, the applicant’s alleged ill-treatment was not supported by any evidence. The investigator referred solely to the explanations of police officers that the applicant had offered resistance during the arrest and they had applied physical force against him.
46. On 21 January 2011 the Leninskiy District Court dismissed the appeal against the latest refusal as unfounded.
F. Panchenko v. Russia, no. 20605/11
1. The events of 16-18 April 2010
47. On 16 April 2010 officers of Police Department no. 1 of the Altay Region (оперативно-розыскнаячастьприГУВДпоАлтайскомукраю) searched the applicant’s flat in Barnaul. During the search the applicant attempted to commit suicide by hanging himself and was taken to a hospital.
48. According to the applicant, on 18 April 2010 he was transferred to a separate room where he was handcuffed to his bed. On that day, the police officers tightened handcuffs so that he felt acute pain and strangled him with a towel. They beat him on the hands and legs forcing him to confess to a crime. The applicant stayed at the hospital until 19 April 2010.
49. On 20 April 2010 the applicant underwent a forensic examination. According to report no. 2432, he had bruises on the nose, left cheek, left and right shoulders, abrasions on the left knee and left ankle, fingers of both hands, both wrists. All injuries were inflicted between three and five days before the examination. The applicant also had an abrasion and a bruise on his neck following mechanical asphyxiation and a fracture of the hyoid bone.
2. Official inquiry into the alleged ill-treatment
50. On 11 August 2010 the investigator, who was investigating the criminal case against the applicant, reported about elements of abuse of power by the police in respect of the applicant.
51. On 22 September 2010 the senior investigator issued a refusal to open a criminal case for the lack of evidence of crime, referring mainly to the explanations of police officers who had denied the use of force. As to the injuries, the investigator concluded that they could have resulted from the falling from a distance equal to his height. It appears from the case file that the decision was quashed. On 1 November 2010 a new refusal was issued.
52. Between November 2011 and September 2013 at least six more refusals were issued. The applicant challenged the latest refusal of 16 September 2013 before a court. On 20 April 2015 the Oktyabrskiy District Court dismissed his complaint as unfounded.
3. Correspondence with the Court
53. On 18 February 2011 the applicant dispatched his first letter with the Court informing about his intent to lodge an application mentioning his ill‑treatment.
54. On 28 November 2011 the applicant lodged his application with the Court complaining about the ill-treatment.
55. On 22 July 2016 the Court requested the applicant to submit a consolidated application form.
56. On 9 September 2016 the applicant submitted his consolidated application form.
G. Klimnenko v. Russia, no. 33032/11
1. The events of 23 April 2009
57. On 23 April 2009 officers of the Drug Control Service of the Rostov Region (FSKN) arrested the applicant on suspicion of a crime. According to the applicant, during the arrest he was punched and kicked in the head and body. He was then taken to the premises of FSKN.
58. According to the medical records of the temporary detention facility of 29 April 2009, the applicant had a fracture of his right two ribs and a hematoma on the eye. According to forensic medical report no. 328 of 30 April 2009, the applicant had hematoma on the right eye, which could be inflicted by a hard blunt object on 24 April 2009. The fracture of ribs remained unconfirmed.
2. Official inquiry into the alleged ill-treatment
59. On 30 April 2009 the applicant complained to the investigator.
60. On 10 August 2009 the investigator issued a refusal to open a criminal case, referring mainly to the explanations of the FSKN officers. He found that the applicant had offered resistance during the arrest and that his allegations of ill-treatment were unfounded. The decision was quashed on unspecified date.
61. On 11 April 2011 the investigator issued the fourth decision refusing to open a criminal case with the similar reasoning as before.
62. On 25 November 2011 the Sovetskiy District Court of Rostov‑on‑Don dismissed the applicant’s complaint against the refusal as unfounded. On 27 March 2012 the Rostov Regional Court upheld the decision.
H. Averkiyev v. Russia, no. 61406/11
63. In December 2006 the applicant was arrested on suspicion of a crime. In 2007 he was placed in a remand prison in Orenburg.
1. The events of 19 May 2008
64. On 19 May 2008 the applicant was transferred from the remand prison to the UBOP premises in Orenburg. According to the applicant, the officers repeatedly punched him on the head and body.
65. According to the remand prison medical records of 19 May 2008, he had a bruise on the lower third of the left shin, hyperemia in the area of the sixth and seventh cervical vertebra, a bruise on the upper eyelid of the left eye. According to the remand prison medical records of 20 May 2008, he had brain concussion, bruises on the left shin, neck and on the upper eyelid of the left eye.
2. Official inquiry into the alleged ill-treatment
66. On 26 May 2008 the applicant complained to the prosecutor about police ill-treatment.
67. On 20 February 2009 the applicant underwent a forensic examination. The expert concluded that the applicant’s medical documents contained insufficient information about the injuries in order to establish the causes and the mechanism of their infliction.
68. Between 2008 and 2009 the investigator issued three decisions refusing to open a criminal case for the lack of evidence of any crime, which were subsequently quashed.
69. On 5 May 2010 the investigator issued the fourth refusal, referring solely to the explanations of the police officers and finding the applicant’s complaints unfounded.
70. On 31 January 2011 the Promyshlenny District Court dismissed the applicant’s complaint against the refusal.
I. Mokhov v. Russia, no. 50144/13
1. The events of 20 May 2009
71. On 20 May 2009 officers of Police Department no. 60 of the Vasileostrovskiy District in St. Petersburg (уголовныйрозыскотделамилиции № 60 ВасилеостровскогорайонаСанкт-Петербурга) arrested the applicant on suspicion of a crime and took him to the police station.
72. According to the applicant, on the way to the station and at the station, the officers punched and kicked him in the head, kidneys and liver.
73. According to the medical records of the temporary detention facility of 20 May 2009, the applicant had a hematoma on the right shoulder and right eyebrow, abrasions on the forehead and nose.
74. On 20 May 2009 a police officer reported that during the arrest physical force and handcuffs had been used against the applicant.
2. Official inquiry into the alleged ill-treatment
75. On unspecified date the applicant complained to the investigator about police ill-treatment.
76. On 5 November 2009 and 11 May 2010 the investigators issued two decisions refusing to open a criminal case for the lack of evidence of crime. Subsequently they were quashed.
77. On 4 September 2012 the investigator issued the third refusal to open a criminal case, referring solely to the explanations of police officers that the applicant had resisted the arrest and they had handcuffed him and applied physical force.
78. On 19 April 2013 the Vasileostrovskiy District Court dismissed the applicant’s appeal against the refusal as unfounded. On 1 August 2013 the St. Petersburg City Court upheld the decision.
J. Zaripov v. Russia, no. 56860/15
79. On 5 December 2013 officers of the Nizhnekamskiy Police Department in Tatarstan (УМВДРоссиипоНижнекамскомурайону) arrested the applicant on suspicion of a crime and placed him in a temporary detention facility.
1. The events of 6-8 December 2013
80. On 6 December 2013 the officers took applicant from the temporary detention facility to the department. According to him, the officers applied electric shocks to his teeth, abdominal zone, bladder, and genitals. The applicant was suspended on a crossbar with his arms handcuffed behind him, with his head pressed to his feet. The officers forced him to confess, threatened to torture his mother and wife. The ill-treatment continued until 3 a.m. the following day.
81. On 7 December 2013 at 9.25 a.m. a forensic expert examined the applicant and found a bruise on his left shoulder. The expert concluded that it had been inflicted between four and six days before the examination.
82. According to the applicant, on 7 December 2013 in the afternoon, the officers took him to an unknown place where they tied him and again ill‑treated him with electric shocks.
83. On 8 December 2013 in the temporary detention facility the applicant’s lawyer called the ambulance. According to the ambulance medical records, the applicant had pain in the limbs, kidneys and abdomen, nausea, bruises on the neck, upper and lower limbs, and a bruise in the area of the eleventh rib.
2. Official inquiry into the alleged ill-treatment
84. On 9 December 2013 the applicant complained to the prosecutor about police ill-treatment.
85. On 10 December 2013 the applicant underwent a forensic examination. According to forensic report no. 3474, the applicant’s medical records contained insufficient information about the morphological characteristics of the injuries and it was impossible to provide forensic qualification and to determine the mechanism of their infliction.
86. On 7 January 2014 the investigator issued a decision refusing to open a criminal case. He referred mainly to the explanations of police officers that no physical force had been applied to the applicant. The investigator concluded that the bruise recorded on 7 December 2013 had been inflicted before the arrest and that no injuries had been recorded on 10 December 2013.
87. On 22 May 2014 the Nizhnekamskiy District Court dismissed the applicant’s appeal against the refusal. On 4 July 2014 the Supreme Court of Tatarstan upheld the decision. The Supreme Court of Tatarstan and the Supreme Court of Russia dismissed the applicant’s cassation appeals on 24 December 2014 and 12 August 2015, respectively.
II. RELEVANT DOMESTIC LAW AND PRACTICE
88. For the relevant provisions of domestic law on the prohibition of torture and other ill-treatment and the procedure for examining a criminal complaint, see Lyapin v. Russia, no. 46956/09, §§ 96-102, 24 July 2014, and Ryabtsev v. Russia, no. 13642/06, §§ 48‑52, 14 November 2013.
89. Paragraph 16 of the Instruction on the police officers’ execution of their obligations and rights in the police departments of the Ministry of the Interior after the persons are taken to police custody (adopted by order no. 389 of the Ministry of the Interior of the Russian Federation on 30 April 2012) provides that a police officer on duty in the police custody shall inform his superior about all cases when a person arrested and taken to the police custody has visible wounds, injuries or is in a state that requires urgent medical intervention.
Similar rules have been in force in respect of the police since 2009.
THE LAW
I. JOINDER OF THE APPLICATIONS
90. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.
II. PRELIMINARY ISSUES
91. The Court notes that the Government made preliminary objections in four cases, Nigmatullin v. Russia (no. 47821/09), Panchenko v. Russia (no. 20605/11), Klimnenko v. Russia (no. 33032/11), and Zaripov v. Russia (no. 56860/15).
A. Nigmatullin v. Russia, no. 47821/09
92. The Government submitted that the applicant had not challenged the decision refusing to open a criminal case of 5 November 2008 before a court or a prosecutor and therefore had failed to exhaust domestic remedies available to him.
93. The applicant disagreed with the Government and submitted that he had exhausted domestic remedies in this respect. He challenged the decision of 5 November 2008 before the courts but the Kaliniskiy District Court refused to examine it.
94. The Court reiterates that where competent investigating authorities refuse to institute criminal proceedings an appeal to a court can be considered a substantial safeguard against the arbitrary exercise of powers by the investigating authority (see Trubnikov v. Russia (dec.), no. 49790/99, 14 October 2003). In this case, the applicant challenged the refusal before the court. However, since the criminal case against the applicant was already pending, the national law prevented the court from examining the applicant’s complaint on the merits. The Court notes that the investigating authorities issued a refusal more than two months after the applicant had complained about ill-treatment and nearly a month after his criminal case had been transferred to the trial court (see paragraph 12 above). It is clear that the authorities could have examined the applicant’s complaint of ill-treatment before the criminal case was transferred to the court for trial. In such circumstances, the applicant cannot be blamed for not having his appeal examined on the merits by the Kalininskiy District Court. The Court therefore rejects the Government’s objection as regards exhaustion of domestic remedies.
B. Panchenko v. Russia, no. 20605/11
95. The Government submitted that in his application form lodged on 28 November 2011 the applicant did not claim that he had exhausted domestic remedies in respect of his complaint under Article 3 of the Convention. They submitted that the applicant had properly exhausted domestic remedies only when the first instance court had dismissed his appeal against the refusal on 20 April 2015. The six-month period should, accordingly, start running from the latter date. According to them, since the applicant invoked the exhaustion of domestic remedies in his second application form on 9 September 2016, which was lodged more than six months following the court decision of 20 April 2015, he had failed to comply with the six-month time-limit.
96. The Court considers that, in essence, the Government stated that the date of 9 September 2016 should be considered as the date of introduction of the application form. The Court does not agree with the Government’s approach.
97. It notes that the applicant’s complaints were raised by him for the first time in his letter to the Court dated 18 February 2011. Some nine months later, in November 2011, he submitted a completed application form in this connection (see paragraphs 53 and 54 above). The application form of 9 September 2016 referred to by the Government was a summary of the complaints previously introduced by the applicant. The Court, therefore, accepts the date of 18 February 2011 as the date of the introduction of the application and rejects the Government’s objection as to non-compliance with the six-month rule.
C. Klimnenko v. Russia, no. 33032/11
98. The Government questioned the date of 1 March 2011 as the date of introduction of the application form.
99. The Court notes that the applicant dispatched his application form on 1 March 2011, which was supplemented on 9 May 2011, 8 November 2012 and 17 February 2014. The Court requested the applicant to submit a consolidated application form which he did on 15 November 2017. The Court, therefore, accepts the date of 1 March 2011 as the date of the introduction of the application and rejects the Government’s objection.
D. Zaripov v. Russia, no. 56860/15
100. The Government questioned the date of 30 October 2015 as the date of introduction of the application form since the date of dispatch of the letter was illegible.
101. The Court notes that the application form dates 30 October 2015. The stamp on the envelope is indeed illegible and it is unclear when exactly the application form was dispatched to the Court. On 10 November 2015 the Registry of the Court received the application form.
102. Even assuming that the date of introduction was 10 November 2015, the Court considers that no issue arises as regards the compliance with the six-month rule since the final decision in respect of the applicant’s complaint was taken on 12 August 2015. It therefore rejects the Government’s objection.
III. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION
103. The applicants complained that they had been subjected to ill‑treatment by State officials and that the State had failed to conduct an effective domestic investigation into those incidents. Mr Kodzoyev, Mr Daurbekov, Mr Averkiyev, and Mr Panchenko also complained under Article 13 of the Convention that they had no effective remedy in respect of their complaints of ill-treatment. The relevant parts of the Convention provisions read as follows:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment …”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority …”
104. The Government contested their allegations, maintaining the conclusions of the domestic inquiries. They stated that the inquiries into the applicants’ allegations of ill-treatment had been thorough and comprehensive. In the cases of Mr Kamenskiy, Mr A.C., Mr Klimnenko, Mr Mokhov, the Government also argued that the applicants had offered resistance during the arrest and that the use of force had been justified. As to Mr Daurbekov, they submitted that the applicant’s allegations of ill‑treatment by electric shock had not been supported by any evidence. Regarding Mr Zaripov, they referred to forensic expert report of no. 3474, according to which the applicant had not had any injuries.
A. Admissibility
105. The Court observes that Mr Nigmatullin’s alleged ill-treatment on 23 November 2007 is not supported by any medical evidence (see paragraph 8 above) enabling the Court to find prima facie that he was subjected to the alleged ill-treatment by the police officers. His complaint concerning alleged ill-treatment on 23 November 2007 is therefore manifestly ill‑founded and must be rejected in accordance with Article 35 § 3 of the Convention.
106. The Court notes that the remaining complaints under this head are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
B. Merits
1. Credibility of the applicants’ allegations of ill-treatment in police custody and the presumption of fact
107. The Court observes that all applicants were arrested by the police on suspicion of them having committed various crimes.
108. After spending different periods of time in police custody the applicants were found to have sustained injuries of various degrees, as recorded by forensic medical experts (see paragraphs 19, 28, 35, 42, 49, 58 and 81 above), the detention facilities and medical institutions (see paragraphs 10, 26, 58, 65, 73 and 83 above).
109. Having examined the case files and the parties’ submissions, the Court considers that the applicants’ injuries were well-documented and could arguably have resulted from the violence allegedly suffered by them at the hands of the police officers. The above factors are sufficient to give rise to a presumption in favour of the applicants’ accounts of events and to satisfy the Court that the applicants’ allegations of ill-treatment in police custody were credible.
2. Whether an effective investigation was carried out into the applicants’ allegations of police ill-treatment
110. The Court observes that the applicants’ credible allegations of their injuries being the result of police violence were dismissed by the investigating authorities as unfounded based mainly on the statements of police officers denying the applicants’ ill-treatment (in the cases of Mr Nigmatullin, Mr A.C., Mr Panchenko, Mr Klimnenko, Mr Mokhov, Mr Zaripov).
111. In the Mr Kodzoyev’s case, the investigator simply referred to the applicant’s explanations that he had not been ill-treated leaving the applicant’s injuries unexplained (see paragraph 20 above).
112. As to Mr Kamenskiy, the Court observes that the investigative authorities failed to correct procedural deficiencies which the Teykovskiy District Court had indicated (see paragraph 37 above). In particular, the investigator failed to explain the applicant’s numerous injuries, referring only to his alleged aggressive behaviour (see paragraph 39 above), and to clarify the police officers’ inconsistent versions about the circumstances of the applicant’s arrest.
113. In the case of Mr Daurbekov, it appears that no decision on the applicant’s complaint about ill-treatment was issued at all. The trial court, which examined the applicant’s criminal case, dismissed his ill-treatment complaint finding that there had been no evidence of ill-treatment without examining the allegations in any detail (see paragraph 29 above).
114. As regards the quality of the forensic expert examinations, the Court reiterates that proper medical examinations are essential safeguards against ill-treatment (see Akkoç v. Turkey, nos. 22947/93 and 22948/93, §§ 55 and 118, ECHR 2000‑X). In some cases the forensic examinations were conducted with a significant delay after the events or after the applicants had complained about ill-treatment. Mr Kodzoyev was examined nearly a month after he had been arrested. Mr Daurbekov was examined about three months after he had complained about ill-treatment. Nine months passed between Mr Averkiyev’s complaint and his forensic examination. By the time when the applicants were examined, precious time had been lost and it was impossible to determine the cause or origin of their injuries (Tangiyev v. Russia, no. 27610/05, § 61, 11 December 2012). Besides that, in the cases of Mr Zaripov and Mr Averkiyev, the experts were provided with insufficient information to give a proper assessment of the injuries (see paragraphs 67 and 85 above).
115. In this connection, the Court considers that significant delays such as in these cases, as well as lack of information provided to forensic experts made it impracticable for the experts to provide adequate answers to the questions raised by the requesting authority (see Mogilat v. Russia, no. 8461/03, § 64, 13 March 2012).
116. It is notable that no forensic medical examination at all was carried out in respect of Mr Nigmatullin regarding his ill-treatment on 19 May 2008 and in respect of Mr Mokhov.
117. The investigators and courts based their findings on the results of the pre‑investigation inquiry, which is the initial stage in dealing with a criminal complaint under Russian law and should normally be followed by the opening of a criminal case and the carrying out of an investigation if the information gathered has disclosed elements of a criminal offence (see Lyapin v. Russia, no. 46956/09, § 129, 24 July 2014). The investigators issued several decisions refusing to institute criminal proceedings some of which, as it appears from the case file, had been annulled as incomplete (see paragraphs 36, 44, 52, 61 and 77 above).
118. The Court reiterates its finding that the mere carrying out of a pre‑investigation inquiry under Article 144 of the Code of Criminal Procedure of the Russian Federation is insufficient if the authorities are to comply with the standards established under Article 3 of the Convention for an effective investigation into credible allegations of ill‑treatment in police custody. It is incumbent on the authorities to institute criminal proceedings and conduct a proper criminal investigation in which a full range of investigative measures are carried out (Lyapin, cited above, §§ 129 and 132‑36).
119. The Court has no reason to hold otherwise in the present cases, which involve credible allegations of treatment proscribed by Article 3. It finds that the State has failed to carry out an effective investigation into the applicants’ allegations of police violence.
3. Whether the Government provided explanations capable of casting doubt on the applicants’ versions of events
120. It remains for the Court to examine whether the Government produced any evidence establishing facts which would cast doubt on the versions of the events given by the applicants.
121. In the cases of Mr Kamenskiy, Mr A.C., Mr Klimnenko and Mr Mokhov the Government argued that the injuries had resulted from the applicants’ resistance during their respective arrests (see paragraph 104 above). At the outset, the Court notes that it was not provided with any evidence supporting the Government’s argument, such as, for example, reports made by the police officers to their superiors in relation to the use of force during the applicants’ arrests. The police officers were particularly obliged to report to their superiors in view of the applicants’ visible injuries (see paragraph 89 and paragraphs 35, 42, 58 and 73 above).
122. The Court further considers that the medical check done immediately after the applicants’ arrests could have confirmed that their injuries had been inflicted at the moment of their arrests (see Korobov v. Ukraine, no. 39598/03, § 70, 21 July 2011). However, in the present cases, except for Mr Mokhov, the applicants were examined on the next day after the arrest (see paragraphs 33 and 42 above), and Mr Klimnenko was examined seven days after the arrest (see paragraphs 57 and 58 above).
123. The Court finally considers that the Government’s explanation lacks the assessment of the acts of the police officers in using force and the actions on the part of the applicant which could have justified the use of force, as well as the assessment whether the use of force was indispensable and not excessive (see Ksenz and Others v. Russia, nos. 45044/06 and 5 others, § 103, 12 December 2017).
124. Given that the Government’s explanations were provided as a result of the superficial domestic inquiries falling short of the requirements of Article 3 of the Convention, the Court finds that they cannot be considered satisfactory or convincing. It holds that the Government have failed to discharge their burden of proof and produce evidence capable of casting doubt on the applicants’ account of events, which it therefore finds established (see Olisov and Others v. Russia, nos. 10825/09 and 2 others, §§ 83-85, 2 May 2017, and Ksenz and Others v. Russia, cited above, §§ 102‑04).
4. Legal classification of the treatment
125. The applicants alleged that they had been subjected to torture and inhuman and degrading treatment.
126. Having regard to the applicants’ injuries confirmed by the medical evidence, the Court finds that the police subjected Mr Klimnenko, Mr Averkiyev and Mr Mokhov to inhuman and degrading treatment.
127. Mr Panchenko alleged that, among other things, he had been suffocated with a towel. His injuries following mechanical asphyxiation, as well as a fracture of his hyoid bone, were confirmed by the forensic report (see paragraph 49 above). The Court considers that the ill-treatment was inflicted on the applicant with the view of extracting confession statements causing severe physical and mental suffering. The Court concludes that the ill-treatment at issue amounted to torture (see Devyatkin v. Russia, no. 40384/06, §§ 32, 37, 24 October 2017).
128. The Court further observes that Mr Nigmatullin, Mr Kodzoyev, Mr Daurbekov, Mr Kamenskiy, Mr A.C. and Mr Zaripov alleged that they had been subjected to ill-treatment by electric shocks (see paragraphs 9, 17, 25, 31, 41, 80 and 82 above). They had, among other injuries, bruises and abrasions on various parts of their bodies (see paragraphs 10, 19, 26, 35, 42 and 83 above). As to Mr Daurbekov, the Government argued that his allegation of ill-treatment by electric shock is unfounded (see paragraph 104 above). The Court observes, however, that the applicant had some injuries recorded by the ambulance on the day of the alleged ill-treatment, in particular, damage to the soft tissues of his face and head (see paragraph 26 above).
129. The Court further observes that the procedural defects (see paragraphs 114 and 121 above) during the investigation of the applicants’ ill-treatment made it hard to prove the applicants’ ill-treatment by electric shock. However, the Court finds that the existence of the applicants’ physical pain and suffering is attested by the medical reports and the applicants’ statements regarding their ill-treatment in the police stations, in particular, with electric shocks, which were not refuted by the Government. The sequence of events also demonstrates that the pain and suffering was inflicted on them intentionally, namely with the view of extracting confessions to having committed crimes (see Samoylov v. Russia, no. 64398/01, § 53, 2 October 2008, and Lolayev v. Russia, no. 58040/08, § 79, 15 January 2015).
130. In such circumstances, the Court concludes that, taken as whole and having regard to its purpose and severity, the ill-treatment of Mr Nigmatullin, Mr Kodzoyev, Mr Daurbekov, Mr Kamenskiy, Mr A.C. and Mr Zaripov such treatment amounted to torture.
5. Conclusion
131. There has accordingly been a violation of Article 3 of the Convention under its substantive and procedural limbs in respect of all applicants. In the light of this finding, the Court considers that it is not necessary to examine whether there has also been a violation of Article 13 of the Convention in respect of Mr Kodzoyev, Mr Daurbekov, Mr Averkiyev and Mr Panchenko.
IV. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW
132. Mr Kodzoyev and Mr Kamenskiy submitted other complaints which also raised issues under the Convention. These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible.
A. Kodzoyev v. Russia, no. 48648/09
133. Mr Kodzoyev complained that his detention on remand had been excessively long and had not been based on relevant and sufficient reasons. He relied on Article 5 § 3 of the Convention, which provides:
“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be … entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
134. The Government did not comment.
135. The Court notes that the period to be taken into consideration lasted from the date of the applicant’s arrest on 30 May 2006 and until the date of his conviction on 2 February 2011. It, therefore, lasted for four years and eight months.
136. In the leading case of Dirdizov v. Russia, no. 41461/10, 27 November 2012, the Court already found a violation in respect of issues similar to those in the present case.
137. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the merits of this complaint. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the applicant’s detention on remand was excessive.
138. There has accordingly been a violation of Article 5 § 3 of the Convention.
B. Kamenskiy v. Russia, no. 51696/10
139. The applicant complained about his unrecorded detention on 3 June 2009. He relied on Article 5 of the Convention, which reads as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law…”
140. The Government did not comment.
141. The Court observes that the applicant was apprehended on 3 June 2009 at 3 p.m., as also confirmed by his mother and by the police officer’s explanation that the applicant was at the police station at 5 p.m. on that day (see paragraph 39 above). His arrest was recorded on the same day at 9 p.m. which made it unrecorded for six hours during which the applicant had been ill-treated.
142. The Court finds that the applicant’s unrecorded detention was a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention, and was incompatible with the requirement of lawfulness and with the very purpose of Article 5 (see Fartushin v. Russia, no. 38887/09, § 54, 8 October 2015).
143. The Court concludes that there has accordingly been a violation of Article 5 of the Convention on account of the applicant’s unrecorded detention.
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
144. Mr Nigmatullin also complained about inadequate conditions of detention in the temporary detention facility between 19 May and 27 May 2008. The applicant brought his application in August 2009. It follows that the period of his detention before 27 May 2008 had ended more than six months before he lodged his application with the Court. This complaint is therefore inadmissible for non-compliance with the six-month rule and must be rejected pursuant to Article 35 § 4 of the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
145. 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. The parties’ submissions
146. The amounts claimed by the applicants under the head of non‑pecuniary damage and costs and expenses are indicated in the appended table.
147. The Court granted legal aid to Mr A.C. amounting to 850 euros (EUR) in compensation for the costs and expenses. He did not provide any receipts or contracts in support of the remaining part of his claims for costs and expenses.
148. Mr Nigmatullin, Mr Kodzoyev, Mr Daurbekov, Mr Kamenskiy and Mr Averkiyev submitted receipts and contracts with their representatives in support of their claims for costs and expenses. Mr Panchenko provided a statement in which he had undertaken an obligation to pay his representatives expenses incurred before the Court and a detailed clarification of the lawyer’s fees amounting to EUR 18,254, the time billed for the preparation of the case and the hourly rates.
149. Mr Klimnenko did not formulate the amount paid by him for translation services and did not submit any receipts or documents in this regard.
150. Mr Mokhov and Mr Zaripov did not claim any compensation under the head of costs and expenses.
151. Regarding Mr Kodzoyev and Mr Daurbekov, the Government contended that the claims for costs and expenses were excessive as the cases were not complex and subject of well-established case-law. Regarding Mr Panchenko, they submitted that he had not produced a legal-services agreement with his representative.
152. In the remaining cases, the Government submitted that Article 41 of the Convention should be applied in accordance with the established case-law.
B. The Court’s assessment
153. Wherever the Court finds a violation of the Convention, it may accept that the applicants have suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations, and make a financial award.
154. As to costs and expenses, the Court has to establish whether they were actually incurred and whether they were necessary and reasonable as to quantum (see McCann and Others v. the United Kingdom, 27 September 1995, § 220, Series A no. 324). As to Mr Panchenko, regard being had to the documents in its possession, the complexity of the case and the above criteria, the Court considers it reasonable to award EUR 3,000, plus any tax that may be chargeable to the applicant on this amount, in respect of costs and expenses.
155. Having regard to the conclusions and principles set out above and the parties’ submissions, the Court awards the applicants the amounts detailed in the appended table, plus any tax that may be chargeable to them on those amounts.
C. Default interest
156. 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,
1. Decides to join the applications;
2. DeclaresMr Nigmatullin’s complaint about inadequate conditions of detention under Article 3 of the Convention inadmissible for the failure to comply with the six-month rule and his complaint about alleged ill‑treatment on 23 November 2007 under Article 3 of the Convention inadmissible as manifestly ill-founded;
3. Declares the remainder of the applications admissible;
4. Holdsthat there has been a violation of Article 3 of the Convention under its substantive limb in that Mr Nigmatullin, Mr Kodzoyev, Mr Daurbekov, Mr Kamenskiy, Mr A.C., Mr Panchenko and Mr Zaripov were subjected to torture in police custody, that Mr Klimnenko, Mr Averkiyev and Mr Mokhov were subjected to inhuman and degrading treatment, and a violation of Article 3 of the Convention under its procedural limb in respect of all applicants in that no effective investigation into their complaints was carried out by the authorities;
5. Holdsthat there has been a violation of Article 5 of the Convention on account of unrecorded detention in respect of Mr Kamenskiy, and on account of excessive length of detention on remand in respect of Mr Kodzoyev;
6. Holdsthat there is no need to examine the complaint under Article 13 of the Convention in respect of Mr Kodzoyev, Mr Daurbekov, Mr Averkiyev and Mr Panchenko;
7. Holds
(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, plus any tax that may be chargeable to the applicants, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the amounts indicated in the appended table at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
8. Dismissesthe remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 4 February 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Alena Poláčková
Registrar President
Appendix
| No. | Case name
Application no. Lodged on |
Applicant
Date of Birth Place of Residence Nationality Represented by |
Non-pecuniary damage | Costs and expenses |
| 1 | Nigmatullin v. Russia
47821/09
14/08/2009 |
Yuriy Askhatovich NIGMATULLIN
14/06/1981 St. Petersburg Russian
Oleg Olegovich ANISHCHIK |
Sought by the applicant | |
| At the Court’s discretion | EUR 811 | |||
| Awarded by the Court | ||||
| EUR 39,700
(thirty nine thousand seven hundred euros) |
EUR 811
(eight hundred and eleven euros) |
|||
| 2 | Kodzoyev v. Russia
48648/09
10/09/2009 |
Magomed Issayevich KODZOYEV
29/01/1984 Amursk Russian
MEMORIAL HUMAN RIGHTS CENTRE |
Sought by the applicant | |
| At the Court’s discretion | EUR 12,423 | |||
| Awarded by the Court | ||||
| EUR 39,700
(thirty nine thousand seven hundred euros) |
EUR 3,000[1]
(three thousand euros) |
|||
| 3 | Daurbekov v. Russia
4057/10
21/01/2010 |
Mussa Magomedovich DAURBEKOV
31/08/1979 Malgobek Russian
Marina Vladimirovna AGALTSOVA |
Sought by the applicant | |
| At the Court’s discretion | EUR 11,318 | |||
| Awarded by the Court | ||||
| EUR 39,700
(thirty nine thousand seven hundred euros) |
EUR 3,000[2]
(three thousand euros) |
|||
| 4 | Kamenskiy v. Russia
51696/10
10/06/2010 |
Aleksey Aleksandrovich KAMENSKIY
13/08/1990 Ivanovo Russian
Irina Yevgenyevna SOKOLOVA |
Sought by the applicant | |
| EUR 5,000 | RUB 47,702
(about EUR 663) |
|||
| Awarded by the Court | ||||
| EUR 5,000
(five thousand euros) |
EUR 663
(six hundred and sixty three euros) |
|||
| 5 | A.C. v. Russia
53082/10
23/08/2010 |
A.C.
22/12/1979 Elban Russian
Yekaterina Viktorovna YEFREMOVA |
Sought by the applicant | |
| EUR 100,000 | EUR 2,700 | |||
| Awarded by the Court | ||||
| EUR 39,700
(thirty nine thousand seven hundred euros) |
– | |||
| 6 | Panchenko v. Russia
20605/11
18/02/2011 |
Yevgeniy Vladimirovich PANCHENKO
14/10/1974 Barnaul Russian
Svetlana Anatolyevna TOREYEVA |
Sought by the applicant | |
| EUR 45,000 | EUR 18,254 | |||
| Awarded by the Court | ||||
| EUR 39,700
(thirty nine thousand seven hundred euros) |
EUR 3,000[3]
(three thousand euros) |
|||
| 7 | Klimnenko v. Russia
33032/11
01/03/2011 |
Dmitriy Vladimirovich KLIMNENKO
13/01/1975 Shara-Gorokhon Russian |
Sought by the applicant | |
| At the Court’s discretion | Amount not indicated
|
|||
| Awarded by the Court | ||||
| EUR 19,400
(nineteen thousand four hundred euros) |
– | |||
| 8 | Averkiyev v. Russia
61406/11
31/08/2011 |
Aleksey Aleksandrovich AVERKIYEV
03/10/1973 Buzuluk Russian
COMMITTEE AGAINST TORTURE |
Sought by the applicant | |
| At the Court’s discretion | EUR 4,815 | |||
| Awarded by the Court | ||||
| EUR 19,400
(nineteen thousand four hundred euros) |
EUR 3,000[4]
(three thousand euros) |
|||
| 9 | Mokhov v. Russia
50144/13
08/07/2013 |
Mikhail Yuryevich MOKHOV
09/11/1974 Petrozavodsk Russian
Oleg Maratovich ALEKSANDROV |
Sought by the applicant | |
| Not claimed | Not claimed | |||
| Awarded by the Court | ||||
| – | – | |||
| 10 | Zaripov v. Russia
56860/15
30/10/2015 |
Rafael Nakipovich ZARIPOV
19/12/1983 Chistopol Russian
Radik Zhaudatovich GALIMOV |
Sought by the applicant | |
| EUR 1,000,000 | Not claimed | |||
| Awarded by the Court | ||||
| EUR 39,700
(thirty nine thousand seven hundred euros) |
– | |||
[1] The sum is to be paid into the representative’s bank account, as identified by the applicant.
[2] The sum is to be paid into the representative’s bank account, as identified by the applicant.
[3] The sum is to be paid into the representative’s bank account, as identified by the applicant.
[4] The sum is to be paid into the representative’s bank account, as identified by the applicant.
Leave a Reply