Last Updated on October 2, 2020 by LawEuro
THIRD SECTION
CASE OF CHUDALOVY v. RUSSIA
(Application no. 796/07)
JUDGMENT
STRASBOURG
22 September 2020
This judgment is final but it may be subject to editorial revision.
In the case of Chudalovy 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 Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 796/07) 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 two Russian nationals, Mr Muslim Musayevich Chudalov (“the first applicant”) and Ms Tabarik Chudalova (“the second applicant”), on 15 December 2006;
the decision to give notice to the Russian Government (“the Government”) of the complaints concerning the alleged ill-treatment of the first applicant from 8 January to 18 June 2005 and from 25 to 26 April 2012, the ineffectiveness of the investigation into those incidents, the unfairness of the criminal proceedings against the first applicant on account of the use of evidence allegedly obtained under duress and in the absence of a lawyer, and the complaint concerning the lack of effective domestic remedies to complain of ill-treatment in 2005;
the parties’ observations;
Having deliberated in private on 1 September 2020,
Delivers the following judgment, which was adopted on that date:
1. In his application the first applicant complained, in particular, of his ill-treatment at the hands of police in 2005 and then in a correctional colony in 2012, and the authorities’ failure to carry out effective investigation into those allegations. He also complained of the unfairness of the criminal proceedings against him on account of the use of evidence allegedly obtained under ill-treatment and in the absence of a lawyer. Lastly he submitted that he had no effective domestic remedies through which to complain of police ill-treatment.
THE FACTS
2. The first and the second applicants (a son and his mother) were born in 1979 and 1951, respectively. The first applicant is currently serving his term of imprisonment in correctional colony no. IK-4 in Saratov Region. The second applicant lives in the town of Grozny in Chechnya, Russia. The applicants were represented by lawyers of the Stichting Russian Justice Initiative NGO in partnership with Astreya (SRJI/Astreya), a non‑governmental organisation.
3. The Government were initially represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
I. Investigation into a murder
5. On 30 June 2002 the Grozny prosecutor opened a criminal case into the murder of Ms An. In the context of that case the first applicant was charged with aggravated murder and put on a wanted list on 29 March 2004.
II. Arrest of the first applicant and his alleged ill‑treatment In January 2005
A. The Government’s version
6. Referring to the arrest record (see paragraph 15 above), the Government submitted that the first applicant had been arrested at 4 p.m. on 9 January 2005 in the presence of two attesting witnesses. The police officers who arrested him had informed him of his right to consult a lawyer and to remain silent. Later that day the first applicant was assigned B. as counsel.
7. Following his subsequent transfer to the Leninskiy police station in the town of Grozny (hereinafter “the Leninskiy ROVD”) the first applicant was questioned by the investigators. During the questioning he lost consciousness and fell face-first onto a hot stove located in the investigators’ office, burning himself.
8. When the first applicant was taken to the holding cells of the Leninskiy ROVD at about 5.20 p.m. on 10 January 2005, the staff on duty examined him and recorded in the logbook that he complained of abrasions on his face and back.
B. The applicants’ version
9. At about 12.30 p.m. on 8 January 2005 traffic police stopped the first applicant’s car, arrested him and took him to the police station in Terpskiy. Several hours later, at about 7 p.m. a group of police officers transported the first applicant to the Leninskiy ROVD. On their way the police officers hit and kicked him on the head.
10. On arrival at the Leninskiy ROVD the first applicant was taken to an office where police officers put a black plastic bag over his head and connected electric wires to his ears. His hands were cuffed behind his back and he was hit on his kidney area with a truncheon and on his fingers with a green ruler. The police officers ordered him to confess to several crimes, but the first applicant denied his involvement in them. To force his confession the police officers passed an electric current through his body. When he lost conscious, police offices brought him back to consciousness and continued with the ill-treatment, taking turns once any of them got tired. After several hours of ill-treatment the first applicant agreed to sign the papers that the officers gave him. His interrogation and ill-treatment continued until 2 a.m. on 9 January 2005, when he was brought to a holding cell in the Leninskiy ROVD.
11. In the morning of 9 January 2005 the first applicant was brought back to the same office where he had been ill-treated. Police officers forced him to sit on a chair, tied his hands behind his back, put a plastic bag over his head and interrogated him, hitting him on the liver area and suffocating him with the plastic bag.
12. At about noon on the same day Investigator E.S. of the Leninskiy district prosecutor’s office in Grozny (hereinafter “the district prosecutor’s office”) entered the office and requested that the first applicant sign some documents concerning a murder. When the latter refused and requested a lawyer the investigator got angry, ordered the police officers “to continue working on the first applicant” and left. After that they put the first applicant with his face against the floor, cuffed his hands behind his back, removed his shoes and hit him on the soles of his feet with their truncheons as two police officers sat on his back. They continued ill-treating him until the evening, when Officers R.Kh. and I.A. pressed the right side of his face against a heated cast-iron movable wood stove to obtain a self-incriminating statement. As he was unable to withstand the treatment, the first applicant signed the extra papers that ordered him to.
13. On 9 January 2005 the first applicant signed some fifteen self‑incriminating statements and confessing to various crimes, including murders and attacks on the federal forces.
14. From the documents submitted by the first applicant it appears that on 9 January 2005 he gave at least seven “explanations” in which he confessed to having participated in several attacks on military vehicles, including one committed on Krasnoflotskaya St. in Grozny in 2002, murders, participation in an illegal armed group, and unlawful possession and carrying of arms and explosives. Those “explanations” were given in the absence of a lawyer. Copies of seven other documents, also entitled “explanations” dated 7 and 9 August 2005, 4 and 10 January 2006 or having no dates on them, contained the first applicant’s confessions to several other violent crimes.
15. At some point the police officers prepared the first applicant’s arrest record, stating that the arrest had taken place at 4 p.m. on 9 January 2005. Two days later, on 11 January 2005, the first applicant was assigned a lawyer, B.
III. Criminal proceedings against the first applicant and his alleged ill-treatment in February-June 2005
16. On 11 January 2005 the Leninskiy District Court of Grozny authorised the first applicant’s detention pending investigation.
17. On 11, 13 and 24 January 2005 the first applicant was interviewed and in the presence of his lawyer, B. fully acknowledged his guilt in respect of the alleged offences. When asked about the origin of the injuries on his body, the first applicant replied that he had fainted at the investigators’ office and fallen on a hot stove.
18. On 15 January 2005 in the presence of his lawyer and two attesting witnesses the first applicant indicated the places where he had committed his crimes.
19. According to the first applicant, on 3 February 2005 Officers I.A. and R.Kh. beat him up before taking him to a hearing in a criminal case against M.L. and Mr V. The officers ordered him to give evidence against those people. Fearing more ill-treatment, the first applicant followed the order.
20. On 7 February 2005 the first applicant was questioned in the Leninskiy ROVD. He admitted his guilt in respect of a criminal offence committed together with Mr V. The applicant’s lawyer, who was present during the interview, asked his client if he had been ill-treated. The first applicant stated that no undue pressure had been put on him.
21. Later that day the first applicant was transferred to remand prison SIZO 20/1 in Grozny. According to him, before that transfer officers of the Leninskiy ROVD mistreated him.
22. Subsequently the first applicant was taken back to the Leninskiy ROVD on several occasions. He submitted that at that time his ill-treatment continued. Thus, according to him, on 28 February, 22 March, 23 May and 17 June 2005 police officers of the Leninskiy ROVD put a plastic bag over his head, cuffed his hands behind his back and hit on his toes with a hammer or administered electric current to his body. After the beating the police officers kept him at the Leninskiy ROVD so as to let his injuries heal. The first applicant submitted that his injuries had been nonetheless recorded upon his admission on 12 March 2005 to the holding cells of the police station in Grozny. No copy of that record has been submitted to the Court.
IV. Pre-investigation inquiry into the first applicant’s allegations of ill-treatment initiated by the applicants
23. On 12 January 2005 the first applicant’s lawyer, B., complained to the prosecutor’s office that on 11 January 2005 he had noticed on the right side of the head of his client several abrasions, which the latter explained as the result of a fall. B. insisted that the first applicant’s explanation had been unsatisfying and requested that the matter be investigated and that the first applicant’s be examined by a doctor.
24. On 14 January 2005 Investigator E.S. instructed the Forensic Bureau of the Chechen Republic (hereinafter “the forensic bureau”) to verify whether the first applicant had any bodily injuries.
25. In its report no. 29 of 14 January 2005 the forensic medical expert indicated that the first applicant had “wounds” (skin injuries) on his right cheekbone and a bruise on the right side of his face. He concluded that the injuries could have been inflicted on 8 January 2005 in the result of a fall on a hot stove.
26. On the same date the investigator questioned Officers R.Kh., I.A. and I.Abdur. as witnesses. The first officer stated that he had not seen the first applicant after the arrest. The two other officers stated that they had not put any physical or mental pressure on the first applicant and that during an interview he had lost consciousness and fallen to the ground. During the fall he had touched his face against the hot stove and burnt it. The applicant confirmed the aforementioned statements in his interview on 14 January 2005.
27. On 20 January 2005 Investigator E.S. refused to open a criminal case into the first applicant’s alleged ill-treatment.
28. On 10, 16, 17 and 21 February 2005 the first applicant complained to the Prosecutor of the Chechen Republic that he had been repeatedly subjected to ill-treatment by officers of the Leninskiy ROVD during his detention in that facility.
29. By a decision of 21 February 2005 and three subsequent decisions of 25 February 2005 Investigator E.S., to whom the applicant’s complaints had been referred, refused to institute criminal proceedings into the alleged ill‑treatment, having concluded that the first applicant’s submissions were unfounded.
30. On 1 March 2005 the district prosecutor’s office received the second applicant’s complaint concerning her son’s ill-treatment in the Leninskiy ROVD. The complaint was transferred to Investigator E.S., who, in a decision of 3 March 2005, refused to open a criminal case, stating that the allegations of ill-treatment had already been dismissed as unfounded.
31. On 18 March 2005 Investigator G. of the district prosecutor’s office dismissed the first applicant’s complaint of ill‑treatment, referring to previous refusals to open a criminal case.
32. On an unspecified date in 2005 the second applicant complained of her son’s ill-treatment to prosecutors at various levels.
33. In a decision of 3 January 2006 Investigator B. of the prosecutor’s office of the Chechen Republic refused to open a criminal case into the first applicant’s ill-treatment with reference to the statements by Investigator G. in an interview with B., and Officers R.Kh., I.A., M.Kh., A.A., T.T. and Z.T. of the Leninskiy ROVD, given to the Supreme Court of the Chechen Republic during the examination of the first applicant’s criminal case.
34. On 20 March 2006 the Prosecutor’s Office of the Chechen Republic dismissed the second applicant’s complaints concerning the thoroughness of the pre-investigation inquiry and upheld the decision of 3 January 2006.
35. On an unspecified date the second applicant appealed against the decision of 3 January 2006 to the Zavodskoy District Court, which dismissed her claim on 17 November 2006, adjudging that the impugned decision was well-founded and that the allegation of ill-treatment had been effectively refuted by the domestic court’s finding reflected in the judgment of 15 June 2006 (see paragraph 55 below).
36. On 14 March 2007 the Supreme Court of the Chechen Republic upheld the above judgment on appeal.
V. The first applicant’s trial and pre-investigation inquiry into his allegations of ill-treatment initiated by the trial court
A. The first applicant’s trial
37. On an unspecified date in 2005 the criminal case against the first applicant was sent for trial to the Supreme Court of the Chechen Republic. The charges against the first applicant included membership in an illegal armed group, eight counts of aggravated murder, two counts of terrorism, two counts of aggravated assault against law-enforcement officials (including that on Krasnoflotskaya St, in Grozny) and unlawful acquisition, storage and possession of arms and explosives committed in an organised group.
38. During the trial the first applicant consistently submitted that he had given his self-incriminating statements under torture, referring to specific dates and methods used, and naming the alleged perpetrators.
39. In connection with the first applicant’s allegations of ill-treatment the trial court summoned and interviewed several police officers of the Leninskiy ROVD, as well Investigator E.S. Officers M.Kh, R.Kh., I.A. and A.A. and Investigator E.S. flatly denied having ill-treated the first applicant or “applied any unlawful methods” to him or having seen anyone in their presence do so.
40. According to the trial hearing record, I.A. also stated that the first applicant had burnt his face because he had fainted during questioning and had fallen on a hot stove. I.A. was unable to explain why the first applicant had suddenly fainted while being interviewed. A.A. submitted that he had witnessed the applicant’s fall on the stove and had tried to prevent him from falling but had not succeeded in doing so. A.A. also specified that the police officers had collected the first applicant’s “explanations” without a lawyer present and that when the first applicant had been interviewed by the investigator, a lawyer had generally been present. E.S asserted that all investigative steps had been carried out in the presence of the first applicant’s lawyer, that he had carried out a pre-investigation inquiry into the first applicant’s allegations of ill-treatment, including the circumstances in which the applicant had sustained the burn, and had concluded that his submissions were unfounded.
B. Pre-investigation inquiries initiated by the trial court
1. First pre-investigation inquiry
41. On 15 March 2005 the presiding judge in the applicant’s case informed the Prosecutor of the Chechen Republic of the first applicant’s allegation of ill-treatment by police officers, which he had made during the trial. The judge forwarded the first applicant’s complaint to the Prosecutor.
42. The prosecutor’s office carried out a pre-investigation inquiry into the matter. The investigators questioned the police officers who denied the first applicant’s ill-treatment, examined the medical report of 14 January 2005 which suggested that his injuries could have resulted from a fall on the hot stove and the case-file material which suggested that lawyer B. had been present during every investigative action. They concluded that the allegations of ill-treatment were unfounded. On those grounds they refused to institute criminal proceedings into the matter on 22 March 2005.
43. On 9 August 2007 the head of the district prosecutor’s office annulled the above decision as ill-founded and premature and ordered the investigators to ensure that the first applicant was given a forensic medical examination and to examine the Leninskiy ROVD registration logs. Subsequently, the investigators refused to open a criminal case on 14 and 22 August, and 3 September 2007. Those decisions were annulled by the supervising authority on 20 and 23 August 2007 and 14 February 2013 respectively for the failure of the investigators to carry out basic investigative steps (to obtain a copy of the Leninskiy ROVD registration logs, question an officer who had made an entry in respect of the first applicant’s injuries and the applicant’s lawyer, or to examine copies of the trial-court records, where the first applicant described his ill-treatment). It appears that the pre-investigation inquiry is still ongoing.
2. Second pre-investigation inquiry
44. On 11 October 2005 the presiding judge instructed the office of the Prosecutor of the Chechen Republic to examine the first applicant’s allegations that he had been repeatedly ill‑treated by officers of the Leninskiy ROVD.
45. Between 27 and 30 October 2005 the deputy head of the district prosecutor’s office obtained written statements by Officers I.A. and R.Kh. and Investigators E.S. and G. They denied having applied physical force to the first applicant and stated that all investigative steps involving the latter had been carried out in accordance with the law and in the presence of a lawyer. According to the statements, the first applicant had burnt his face when he had fallen on a stove after losing consciousness during an interrogation.
46. On 30 October 2005 the investigators refused to institute criminal proceedings into the matter.
47. On 29 April 2011 the Leninskiy district prosecutor annulled the above decision as ill-founded and ordered the investigators to ensure an expert examination of the first applicant’s medical documents and to question the person who had recorded the first applicant’s injuries in the Leninskiy ROVD registration logs.
48. On 14 May 2011 the investigators questioned that person. He confirmed that the first applicant had had injuries on his face and his back and that he had stated that those injuries had been inflicted on him during the arrest.
49. On 16 May and 6 October 2011 the investigators refused to open a criminal case into the alleged ill-treatment. Those decisions were subsequntly annulled by the Leninskiy district prosecutor on 4 October 2011 and 14 February 2013 respectively for being ill-founded and premature. It was noted, in particular, that the investigators had failed to fully comply with the order of 29 April 2011 or to question the first applicant’s cellmate in the Leninskiy ROVD holding cells.
C. Trial-court judgment of 26 December 2005
50. In a judgment of 26 December 2005 the trial court found the first applicant guilty of having participated in an illegal armed group, of six counts of aggravated murder, of participation in terrorist attacks and assaults on law‑enforcement officials (including that on Krasnoflotskaya St.) and one count of unlawful acquisition, possession and carrying of arms and explosives. In finding the first applicant guilty the trial court relied on his pre-trial statements given on 9, 11, 13 and 24 January 2005, 2 February, 24 March, 25 May, and 1 and 8 July 2005, and his statements given at the crime scenes on 15 January 2005. The court specified that on 9 January 2005 the first applicant had made submissions concerning his participation in murders, unlawful acquisition of arms, and acts of terrorism. The court was convinced by his self-incriminating statements. It noted that his allegation of ill-treatment had been verified and dismissed as unfounded in the course of a pre-investigation inquiry. Moreover, the police officers during the trial denied having mistreated him. According to the medical examination, the injuries on the first applicant could have been sustained as a result of his falling on a hot stove.
51. The trial court went on to note that the first applicant’s guilt was also confirmed by, among other things, a number of pre-trial statements by Investigator E.S. and police officers of the Leninskiy ROVD, in which they had submitted that the first applicant had confessed to all the crimes of his own will; (pre-trial) statements by several victims, who submitted that they had discovered their relatives’ corpses or learnt from other people that they had been killed; statements by several individuals who submitted that unknown individuals had blown up military vehicles; and a number of crime scene inspection and ballistic reports and medical forensic examinations. The trial court also referred to the “information” from the Chechen office of the Federal Security Service and Operational and Search Bureau no. 2 (“ORB‑2”) to the effect that in 2002 the first applicant had joined an illegal organised armed group and had participated in its activities.
52. The trial court sentenced the first applicant to twenty-five years’ imprisonment, to be counted as from 9 January 2005.
53. By a decision of 26 December 2005 the trial court terminated his criminal prosecution on charges of theft, one count of murder and one count of unlawful possession of arms following the prosecution decision to withdraw those charges.
54. The first applicant appealed against his conviction, arguing, among other things, that he had been convicted on the basis of self-incriminating statements obtained under torture and in the absence of a lawyer.
D. Appellate-court judgment of 15 June 2006
55. In a judgment of 15 June 2006 the Supreme Court of Russia found contradictory the trial court’s conclusions in respect of the first applicant’s conviction regarding his participation in several episodes of military vehicles being blown up (including the attack on Krasnoflotskaya St) qualified as terrorist acts and assaults on law-enforcement officials. It set aside the trial court’s judgment in that part and remitted it for a fresh examination by that court. The court upheld the judgment of 26 December 2005 in the remaining part (including unlawful possession and carrying of arms and explosives) and decreased the first applicant’s imprisonment term to twenty years. The court also established that the first applicant had been arrested on 8 January 2005 and that, accordingly, that date and not 9 January 2005, was to be taken as the starting date for the calculation of his sentence.
E. Trial-court judgment of 13 October 2006
56. In a judgment of 13 October 2006 the Supreme Court of the Chechen Republic found the first applicant guilty of the attack of law-enforcement officials on Krasnoflotskaya St and terminated the proceedings as regards the connected charges of participation in acts of terrorism and other attacks because the prosecution had withdrawn them. As a result the first applicant received a sentence of twenty-one years’ imprisonment, which was calculated from 8 January 2005.
57. The court briefly referred to the first applicant’s “self-incriminating statements given during the pre-trial investigation”, “self-incriminating statements given in the presence of his lawyer”, his submissions during a check of his statements at the crime scenes, witness submissions, expert reports and other pieces of evidence. The court did not specify the dates when the aforementioned self-incriminating statements had been made. Instead it referred to certain pages in the case file. Those pages are not available for the Court.
58. According to the Government, the trial court read out the first applicant’s statements of 11, 13, and 24 January, 2 February, 24 March and 25 May 2005 and used only that evidence which had been obtained in the presence of his lawyer. The Government did not provide copies of the relevant trial-court records.
59. The applicant appealed against his conviction, stating that he had given self-incriminating statement under duress and that he had not committed the offences in question.
F. Appellate-court judgment of 18 January 2007
60. On 18 January 2007 the Supreme Court of Russia dismissed the first applicant’s appeal. It noted that his allegation of ill-treatment had been rebutted by the results of the pre-investigation inquiry into the matter.
VI. The first applicant’s alleged ill-treatment in APRIL 2012 and the pre-investigation inquiry into it
A. The first applicant’s version
61. According to the first applicant, at about 11 a.m. on 25 April 2012 a group of men in balaclavas entered punishment cell no. 2 of correctional colony IK-4 in Saratov Region, where he was being held at the time with two cellmates (F.A. and S.Ya.), and started beating them up. Then they took the first applicant to cell no. 13, where they cuffed his hands, suspended him from the ceiling and started kicking and hitting him with their truncheons. A.K., head of one of the departments of the Saratov branch of the Federal Service for the Execution of Sentences, and Officers S.D., D.Sh. and V.R. of the correctional colony participated in the beatings. After a while the first applicant went unconscious. A nurse was called to resuscitate him. When she left, the first applicant was again suspended by handcuffs and the beatings continued, the officers cursing at the first applicant and humiliating him. After a while they took him back to cell no. 2, where they put him on his knees with his hands cuffed behind his back. The first applicant started having heart problems. A nurse was called again and gave him an injection. In the first applicant’s submission, all those events were recorded on a video camera and his cellmates witnessed his condition after the beatings.
62. In the evening on the same day the first applicant and other detainees were ordered to run. While running, they were kicked by prison officers with truncheons on their legs. The same events occurred in the morning of 26 April 2012 when the first applicant woke up and during his walk on that day. Throughout the entire day prison officers made the first applicant squat down and do press-ups, humiliating and threatening him. This treatment continued until 27 April 2012.
B. The Government’s version
63. According to the Government, on 26 April 2012 the first applicant’s cell was searched by prison guards, including Officer P. The first applicant refused to undergo a full body search and resisted. To overcome his resistance Officer P. had to use a rubber truncheon. He inflicted four blows on the first applicant. Then the first applicant stated that he would inflict injuries on himself. The prison officers handcuffed him to prevent him from doing so. On the same day Officer P. reported the incident to the prison management.
C. Prison internal investigation and pre-investigation inquiry into the alleged ill-treatment
1. Prison internal investigation
64. On 27 April 2012 the prison management carried out an internal investigation into the incident. Referring to the report prepared by Officer P., they established that on 26 April 2012 a group of prison guards, including that officer, had searched the first applicant’s cell. The latter had refused to undergo a body search and had resisted. Then he had been warned that, in the event of continued resistance, the prison guards would use a rubber truncheon on him. The applicant had not followed that order and had grabbed a prison guard by his uniform. Then Officer P. had hit the first applicant with the truncheon four times on the “soft parts of his body”. The applicant had tried to avoid the blows and had been crushed against prison furniture. After that he said that he would injure himself. He had been warned that the prison guards would handcuff him, but he had repeated his threats. Officer P. had had to handcuff the first applicant for ten minutes, between 2.20 p.m. and 2.30 p.m. On the same day the first applicant had been invited to submit a written statement on this matter, but he had refused to do so. The prison management concluded that the use of a rubber truncheon and handcuffs against the applicant had been appropriate and lawful.
2. Pre-investigation inquiry
65. On 4 May 2012 a member of the Public Supervisory Commission of the Chechen Republic wrote to the prosecutor of the Saratov Region, the regional ombudsman, and other authorities, submitting that she had been alerted by the first applicant’s mother to her son’s ill-treatment on 25‑26 April 2012 by Officers A.K., S.D., D.Sh. and V.R. She requested that a pre-investigation inquiry be conducted into her allegations.
66. On 5 May 2012 officials of the prosecutor’s office visited correctional colony IK-4 to verify her submissions. During the on-the-spot check they examined the relevant documentation and interviewed the first applicant and other inmates, who alleged that officers of the correctional colony had applied “unlawful means” to them. Following the check, the relevant material had been sent to the competent bodies with a view to deciding on whether a criminal case was to be opened.
67. On 12 May 2012 the first applicant’s lawyer, A.M., complained to the prosecutor supervising penal institutions in Saratov Region and the investigation department of the investigative committee of Russia in Saratov Region that on 25 and 26 April 2012 the first applicant had been subjected to ill-treatment. He furthermore submitted that when he had managed to visit his client on 11 May 2012, he had noticed numerous bruises on his back, forearm and legs, marks from cuffing on his arms and an injury to his left‑shoulder joint. When A.M. spoke with the head of the facility, S.D., the latter allegedly told him that he had beaten the first applicant up and would continue doing so. A.M. requested that a forensic medical examination in respect of the first applicant be immediately conducted and that a criminal case be opened with a view to bringing A.K., S.D., D.Sh. and V.R., who were responsible for his client’s ill-treatment, to justice.
68. On 12 May 2012 an expert of the Forensic Medical Expert Bureau in the town of Pugachev examined the first applicant. According to his report no. 298 of the same date the first applicant submitted that he had been hit with a truncheon on 26 April 2012. He complained of pain in the liver region and in his left shoulder. The expert established that the first applicant had four extended yellowish‑purple bruises measuring from 3 by 1 cm to 7 by 1 cm on the front external parts of his hips. The report furthermore noted that, according to the first applicant’s medical file, at 3 p.m. on 26 April 2012 he was examined by a prison doctor “in connection with eventual injuries sustained as a result of application of special means”; his state of health was considered “satisfactory”, and the following injuries were recorded: “marks from handcuffs on both wrists, [and] numerous bruises of linear form (4) and purple colour [measuring] about 3 by 8 cm on his hips and buttocks”. Having examined the first applicant, his medical file and his submissions, the expert concluded that at the time of his examination the applicant had four bruises on the front external part of his hips and that, according to the medical file, the first applicant had had bruises on his buttocks. The expert considered that the bruises on the hips could have been caused by an impact of a blunt solid object or objects more than twelve to fourteen days but less than twenty-one days prior to the examination and that the bruises on the buttocks could have been sustained in the time span of one day prior to the first applicant’s examination by the prison doctor. Accordingly, he concluded that the above-mentioned injuries could have been sustained on the date and the circumstances described by the first applicant.
69. On various dates more than ten prisoners, including the first applicant’s cellmates, submitted oral or written complaints concerning unjustified beatings or ill-treatment by prison guards during 25-26 April 2012.
70. On 15 May 2012 Investigator A.K. of the Pugachevskiy inter-district investigation department (hereinafter “the investigation department”) refused to open a criminal case into the allegations of ill-treatment. On 4 June 2012 the head of the investigation department annulled the decision of 15 May 2012 and ordered that an additional pre-investigation inquiry be carried out. Subsequently, the investigators refused to open a criminal case into the incident on 13 June and 22 August 2012. The aforementioned decisions were annulled on 23 July and 9 October 2012 respectively for being premature and ill-founded.
71. On 15 November 2012 the investigators refused to open a criminal case for the fourth time, concluding that the first applicant’s allegations were unfounded. According to the investigators, the first applicant’s injuries had been inflicted by Officer P., who had used a rubber truncheon and handcuffs against the applicant on 26 April 2012 because the latter resisted a lawful search. That conclusion had been based on Officer’s P. report, medical documents, the conclusion of the internal investigation of 27 April 2012, and statements by almost forty prisoners, who had not been subjected to prison guards’ violence or heard about it, fifteen prison guards, who had denied excessive use of force or ill‑treatment, and prison staff. The investigators dismissed the allegations of ill-treatment submitted by other detainees as being unsubstantiated. They noted in particular that four of them, who had heard cries of pain, had not been eyewitnesses to the events in question.
72. On 12 February 2013 the above decision was annulled for being ill‑founded and premature, particularly because the investigators had failed to join the first applicant’s medical documents to the case file and to question the first applicant’s lawyer. It appears that the pre-investigation inquiry is still ongoing.
RELEVANT LEGAL FRAMEWORK and the council of europe material
I. domestic law
73. For a summary of the relevant provisions of the Criminal Code and the Code of Criminal Procedure of the Russian Federation, see, in so far as relevant, Ryabtsev v. Russia (no. 13642/06, §§ 42-52, 14 November 2013) and Lyapin v. Russia (no. 46956/09, §§ 99-102, 24 July 2014).
II. CPT MATERIAL
74. On 10 July 2003 Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the “CPT) made Public statement concerning the Chechen Republic of the Russian Federation (CPT/Inf (2003) 33), which in the relevant part reads as follows:
“4. In the course of the CPT’s visits to the Chechen Republic in 2002 and, most recently, from 23 to 29 May 2003, a considerable number of persons interviewed independently at different places alleged that they had been severely ill-treated whilst detained by law enforcement agencies. The allegations were detailed and consistent, and concerned methods such as very severe beating, the infliction of electric shocks, and asphyxiation using a plastic bag or gas mask. In many cases, these allegations were supported by medical evidence. Some persons examined by the delegation’s doctors displayed physical marks or conditions which were fully consistent with their allegations. Documentation containing medical evidence consistent with allegations of ill-treatment during periods of detention in law enforcement agencies was also gathered. The allegations of ill-treatment received by the CPT concerned law enforcement establishments (Departments of Internal Affairs and certain Federal Security Service facilities) throughout the territory of the Chechen Republic and related to both official and unofficial places of detention. …
5. One establishment stands out in terms of the frequency and gravity of the alleged ill-treatment, namely [ORB-2].”
75. On 13 March 2007 the CPT made other Public statement concerning the Chechen Republic of the Russian Federation (CPT/Inf (2007) 17), which in the relevant part reads as follows:
“15. In the course of the visits to the North Caucasian region in 2006, the CPT’s delegation once again received many credible allegations of recent ill-treatment of detained persons by members of law enforcement agencies and security forces in the Chechen Republic. The ill-treatment alleged was frequently of such a severity that it could be considered to amount to torture; the methods involved included extensive beating, asphyxiation using a plastic bag or gas mask, electric shocks, suspension by the limbs, hyperextension and, more rarely, the infliction of burns by cigarettes, lighters or other devices. Accounts were also received of threats of execution or of sexual abuse in order to obtain a confession or information. The general picture which emerged was that any detained person who did not promptly confess to the crime of which he was suspected (or provide information being sought by those responsible for the detention) would be in imminent danger of being ill-treated…
As regards official law enforcement structures, a particularly high number of allegations of ill-treatment continue to relate to [ORB-2] in … Other law enforcement structures where there would appear to be a particularly high risk of ill-treatment include … [the Leninskiy ROVD]…”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
76. The first applicant complained that he had been ill-treated in the Leninskiy ROVD in Grozny and later in IK-4 in Saratov Region. He also complained that no effective investigation into his complaints had been carried out. The applicant relied on Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Admissibility
77. The Government argued that the first applicant’s complaints were manifestly ill-founded.
78. The first applicant maintained his complaints.
79. The Court finds that the first applicant’s complaints are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.
B. Merits
1. The parties’ submissions
80. The Government submitted that the investigative authorities had carried out an effective investigation into the allegations of ill-treatment in the Leninskiy ROVD and in IK-4. The investigators had concluded that those allegations had been unfounded. In particular, the investigation demonstrated that the first applicant had injured his face as a result of an accident in January 2005, when he had lost consciousness and fallen on a hot stove.
81. The Government also stated that during his detention in IK-4 the first applicant had refused to undergo a body search and had resisted the prison guards’ orders. The latter had had to use a rubber truncheon and handcuffs to overcome his resistance. Their actions had been proportionate to the first applicant’s behaviour.
82. The first applicant maintained his complaints. Referring to the finding of the Chechen Supreme Court of 15 June 2006 (see paragraph 55 above), he claimed that he had been arrested on 8 January 2005, and not on 9 January 2005 as submitted by the Government. According to the applicant, the Government had failed to provide a plausible explanation for his injuries sustained in the Leninskiy ROVD. The assertion that he had fallen on the hot stove was untenable. The investigating authorities had never attempted to explain why he had lost consciousness during a police interview. The ensuing investigation had been neither prompt, nor independent nor thorough. Investigator E.S. had coordinated his ill‑treatment and subsequently investigated it. Having made no meaningful attempt to establish the circumstances in which the first applicant had been injured, the investigating authority had issued thirteen refusals to open a criminal case during the first eighteen months of the pre-investigation inquiry.
83. As regards the events of April 2012, the applicant pointed out that his injuries had been sustained as a result of ill-treatment, which had been humiliating and disproportionate to his conduct. He noted that during the investigation into the matter the investigators had not questioned all of the detainees who had also been victims of the alleged ill-treatment by prison guards.
2. The Court’s assessment
(a) General principles
84. The relevant general principles have been summarised by the Court in Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-90 and 114-23, ECHR 2015), Jevtović v. Serbia (no. 29896/14, §§ 74-77, 3 December 2019), Lyapin (cited above, §§ 109-15) and Tali v. Estonia (no. 66393/10, §§ 55‑61, 13 February 2014).
(b) Application of the above principles to the present case
(i) Alleged ill-treatment in the Leninskiy ROVD
(1) Credibility of the allegations of ill-treatment and presumption of fact
85. It is not in dispute between the parties that before the arrest on 8 January 2005 the first applicant had no injuries on his body. Two days later, at the time of his admission to the Leninskiy ROVD, injuries on his face and back were noted (see paragraph 8 above). Later a forensic expert concluded that the facial injuries might have been sustained on 8 January 2005, on the day of the first applicant’s arrest (see paragraph 25 above).
86. In view of the foregoing, taking into account detailed description of the alleged ill-treatment provided by the applicant, his consistent and detailed complaints to the authorities about such ill-treatment and bearing in mind the CPT’s Public statements (see paragraphs 74 and 75 above), the Court considers that his injuries could arguably have resulted from the violence suffered by him on 8-9 January 2005. This is sufficient to give rise to a presumption in favour of the first applicant’s account of ill-treatment during the first days of his arrest and to satisfy the Court that his allegation was credible.
(2) Whether an effective investigation was carried out into the allegations of ill-treatment
87. The Court observes that the first applicant’s consistent allegations of ill‑treatment in the the Leninskiy ROVD, which were supported by medical evidence were rejected as a result 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, cited above, § 129).
88. 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 and which constitutes an effective remedy for victims of police ill-treatment under domestic law (see, among many other authorities, Lyapin, cited above, §§ 129 and 132-36; Devyatkin v. Russia, no. 40384/06, § 34, 24 October 2017; and Olisov and Others v. Russia, nos. 10825/09 and 2 others, §§ 80-82, 2 May 2017).
89. There is no reason to hold otherwise in the present case, which involves credible allegation of ill-treatment of which the authorities were promptly made aware. As a result of the refusal to conduct a fully-fledged criminal investigation, such important investigative activities as confrontations, identification parades and examinations of witnesses were never carried out. Furthermore, no meaningful attempt was made to explain the injuries on the first applicant’s back recorded in the Leninskiy ROVD’s logbook or to establish why the applicant had allegedly lost consciousness during questioning as submitted by the police officers.
90. The aforementioned elements are sufficient to conclude that the State has failed to carry out an effective investigation into the first applicant’s allegations of police ill-treatment, as required by Article 3 of the Convention. Therefore, there is no need to examine the other shortcomings in the investigation mentioned by the first applicant.
(3) Whether the Government provided explanations capable of casting doubt on the applicants’ account of events
91. As a result of the deficient investigation the Government failed to provide a sound explanation of the origin of the first applicant’s injuries. The Government submitted that they had resulted from a fall on a hot stove, when the applicant lost consciousness during the police interview of 8 January 2005. However in the absence of any explanations of the surrounding circumstances, including concerning the applicant’s having been questioned beside a hot stove and his sudden fainting, that version does not appear to be credible. That is particularly so taking into account that that version of events did not cast light on the origin of the injuries on the first applicant’s back recorded in the Leninskiy ROVD’s logbook (see paragraph 8 above). Accordingly, the Court concludes that the Government has not discharged their burden of proof.
(4) Legal classification of the treatment
92. Having regard to the violence suffered by the first applicant, including beatings and his face being pressed against a hot stove with the aim of extracting confession to crimes, the Court finds that such treatment amounted to torture (see Lyapin, cited above, §§ 119-20).
93. There has accordingly been a violation of Article 3 of the Convention under its substantive and procedural limbs.
94. In view of the above finding, the Court does not consider it necessary to examine separately the allegations concerning subsequent episodes of the first applicant’s ill-treatment in the Leninskiy ROVD which are not supported by medical evidence and the allegations concerning the lack of effective investigation into those episodes (see paragraphs 21 and 22 above) (for a similar approach see Lyalyakin v. Russia, no. 31305/09, §§ 80‑82, 12 March 2015, and Chenchevik v. Ukraine [Committee], no. 56920/10, §§ 93-94, 18 July 2019).
(ii) Alleged ill-treatment in IK-4
(1) Credibility of the allegations of ill-treatment and presumption of fact
95. It is not disputed by the parties that the prison guards inflicted several injuries on the first applicant. However, the applicant and the Government provided different versions of the surrounding circumstances. According to the applicant, the prison guards had ill-treated him on 25 and on 26 April 2012 by kicking and hitting him on various parts of the body, suspending him by handcuffs, and humiliating him (see paragraphs 61 and 62 above). According to the Government, the prison guards had hit him with a rubber truncheon four times and then handcuffed him owing to his active resistance to a personal search and his threatening to injure himself (see paragraph 63 above).
96. The Court observes that the medical documents at its disposal confirm the existence of four extended yellowish‑purple bruises on the first applicant’s hips and marks from handcuffs on his wrists (see paragraph 68 above). The number, location and origin of those injuries corresponded to the Government’s account of the events and refute that of the first applicant, particularly because no other evidence of alleged ill-treatment lasting two days was found on his body.
97. Although the Court recognises that it may prove difficult for detainees to obtain evidence of ill‑treatment by their warders (see, mutatis mutandis, Labita v. Italy [GC], no. 26772/95, § 125, ECHR 2000‑IV), it finds the Government’s account of events to be more credible than that of the first applicant and accepts it.
98. The Court will now examine whether the use of force by prison guards against the applicant as described by the Government was excessive in breach of the requirements of Article 3 of the Convention.
(2) Whether there has been excessive use of force by prison guards
99. The Court reiterates that in respect of a person who has been deprived of his or her liberty, or, more generally, is confronted with law‑enforcement officers, any recourse to physical force which has not been made strictly necessary by his or her own conduct diminishes human dignity and is, in principle, an infringement of the right set forth in Article 3 (see Bouyid, cited above, §§ 88).
100. In the present case the first applicant sustained several blows from a rubber truncheon which resulted in bruises on his hips. Even were the Court to accept that he did resist a personal search and grabbed one of the prison guards by the uniform, Officer P.’s reaction was disproportionate to the first applicant’s conduct. That is particularly so taking into account that the unarmed applicant faced a group of fully equipped and trained prison guards. Beating him with a rubber truncheon was aimed at punishing him rather than preventing an attack on the officers. The latter goal could have been achieved by simple immobilisation of the first applicant (compare Borodin v. Russia, no. 41867/04, §§ 106-10, 6 November 2012 and Artyomov v. Russia, no. 14146/02, §§ 169-73, 27 May 2010). Accordingly, the use of force against the first applicant was excessive.
101. The Court considers that such excessive use of force resulting in bodily injuries amounted to inhuman or degrading treatment, prohibited by Article 3 of the Convention.
(3) Whether an effective investigation was carried out into the use of force by prison guards
102. The first applicant’s injuries, of which the prison authorities were promptly informed, called for an effective investigation into the matter as required by the procedural limb of Article 3 of the Convention.
103. Although the investigating authorities did not remain idle, and carried out a number of investigative steps, the key issue –whether the force used against the applicant had been strictly necessary and proportionate – had never been properly investigated: the investigators did not question the prison guards on that specific issue and did not assess their actions from that point of view in a meaningful manner (see Şakir Kaçmaz v. Turkey, no. 8077/08, § 90, 10 November 2015). Such an assessment would have been essential to determining whether the police had acted within the confines of domestic law, and, indeed, whether they had breached Article 3 of the Convention (see Yusiv v. Lithuania, no. 55894/13, § 72, 4 October 2016). In the absence of a thorough investigation into the necessity and the proportionality of the use of force, the Court cannot conclude that the investigation met the requirements of Article 3 of the Convention.
(4) Conclusion
104. There has accordingly been a violation of Article 3 of the Convention under its substantive and procedural limbs.
II. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (c) OF THE CONVENTION
105. The first applicant claimed that his conviction had been based on self‑incriminating statements obtained under torture and that some of those statements had been made in the absence of a lawyer in breach of Article 6 §§ 1 and 3 (c) of the Convention, which in the relevant part reads as follows:
“In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal …
3. Everyone charged with a criminal offence has the following minimum rights:
…
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require …”
A. Admissibility
106. The parties did not explicitly comment on the admissibility of the first applicant’s complaint.
107. The Court notes that this complaint is neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
108. The Government submitted that the impugned proceedings had been fair. They stated that the first applicant’s conviction had been based on an ample body of evidence, including witness evidence and expert reports, as well as his self-incriminating statements dated 11, 13, and 24 January, 2 February, 24 March and 25 May 2005. No evidence obtained in the absence of the first applicant’s lawyer had been used against him.
109. The first applicant maintained his complaints. He stated that fifteen testimonies and confessions obtained on 9-10 January 2005 as well as other confessions self-incriminating statements obtained under duress had been admitted in evidence in his case and constituted a basis for his conviction.
2. The Court’s assessment
(a) Alleged violation of Article 6 § 1 of the Convention
110. The Court reiterates that the admission of confession statements obtained as a result of torture or of other ill-treatment in breach of Article 3 as evidence to establish the relevant facts in criminal proceedings renders the proceedings, as a whole, unfair. This finding applies irrespective of the probative value of the statements and irrespective of whether their use was decisive in securing the defendant’s conviction (see Belugin v. Russia, no. 2991/06, § 70, 26 November 2019, and Ryabov v. Russia, no. 2674/07, § 57, 17 July 2018). The Court furthermore reiterates that the use of evidence, allegedly obtained as a result of ill-treatment, always raises serious issues as to the fairness of the proceedings, even if the admission of such evidence was not decisive in securing a conviction (see, for example, Özcan Çolak v. Turkey, no. 30235/03, § 43, 6 October 2009, and Örs and Others v. Turkey, no. 46213/99, § 60, 20 June 2006).
111. The Court notes that during the first days of his arrest in January 2005 the first applicant was tortured by police officers (see paragraph 92 above) and made a number of self-incriminating statements. In particular, he acknowledged his guilt in respect of several offences, including unlawful possession of arms and participation in an assault on law-enforcement officials on Krasnoflotskaya St. (see paragraph 14 above).
112. That statement was explicitly used by the Supreme Court of Chechnya as a basis for the first applicant’s conviction on 26 December 2005 (see paragraph 50 above), which was later upheld on appeal by the Supreme Court of Russia on 15 June 2006 (see paragraph 55 above).
113. The subsequent conviction by the Supreme Court of Chechnya on 13 October 2006 on account of the first applicant’s participation in the attack on the Krasnoflotskya St. referred to self-incriminating statements made at the pre-trial investigation, without mentioning the dates when those statements had been made. Bearing in mind that the confession of 9 January 2005 had not been declared inadmissible and had been excluded from the case-file, the Court considers that the domestic court took that statement into account. The Court cannot accept the Government’s argument that the statement of 9 January 2005 was not used against the first applicant, because the Government have failed to substantiate it, by, for example, submitting a copy of the trial-court records.
114. Accordingly, the first applicant’s convictions were made on the basis of his statements obtained under torture. That rendered the criminal proceedings against him as a whole unfair.
115. It follows that there has been a violation of Article 6 § 1 in the present case.
(b) Alleged violation of Article 6 §§ 1 and 3 (c) of the Convention
116. In the light of the above, the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention (see Belugin, cited above, § 81).
III. Alleged violation of Article 13 of the convention in conjunction with article 3
117. The first applicant complained, under Article 13 of the Convention in conjunction with Article 3, that the authorities had failed to carry out an effective investigation into his alleged ill-treatment in police custody. Article 13 reads as follows:
“ Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
118. The Government contested that claim, arguing that the applicant had been able to challenge the investigators’ decisions or their alleged inaction in court and that he had made use of that opportunity.
119. The Court notes that the complaint submitted under Article 13 of the Convention is closely linked to the issue raised under the procedural aspect of Article 3 of the Convention and that, therefore, this complaint should be declared admissible. However, having regard to the finding of a violation of Article 3 under its procedural head on account of the respondent State’s failure to carry out an effective investigation into the alleged ill‑treatment (see paragraph 93 above), it considers that it is not necessary to examine this complaint separately under Article 13 of the Convention in conjunction with Article 3.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
120. Lastly, the first applicant complained that his detention in the holding cells of the Leninskiy ROVD had been in breach of Article 5 § 1 of the Convention and that his detention after his conviction had been unlawful.
121. Under Article 6 §§ 1 and 2 of the Convention, he complained of the unfairness of the proceedings regarding his allegation of ill-treatment and of the assessment of evidence in the criminal proceedings against him.
122. The first applicant furthermore submitted that he had been deprived of effective remedies in respect of his complaint under Articles 5 and 6 of the Convention, in breach of Article 13.
123. The second applicant complained, under Article 3, that she had endured mental suffering because of the first applicant’s ill-treatment and the ineffectiveness of the ensuing investigation.
124. The Court has examined those complaints. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court 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 this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
125. 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
126. The applicants claimed 100,000 euros (EUR) jointly in respect of non-pecuniary damage.
127. The Government submitted that the finding of a violation would constitute sufficient just satisfaction for the applicants’ sufferings.
128. The Court considers that in the circumstances of the case the first applicant’s sufferings cannot be compensated for by the mere finding of a violation. Making its assessment on an equitable basis, the Court considers that EUR 67,600 shall be paid to the first applicant, plus any tax that may be chargeable on that amount, in respect of non-pecuniary damage.
B. Costs and expenses
129. The applicants claimed EUR 5,539 jointly in respect of costs and expenses incurred in the proceedings before the Court to be paid into the bank account of the applicants’ representative. They submitted a legal‑service agreement of 24 February 2013 signed by the second applicant, but not by their representative, and an invoice prepared by their representative.
130. The Government submitted that the legal-service agreement between the applicants and their representative was invalid because it had not been sealed and signed by the applicant’s representative. The Government also stated that the claim was not supported by any documents confirming that the payment of the costs and expenses had been made.
131. According to the Court’s case-law (see Merabishvili v. Georgia [GC], no. 72508/13, § 370, ECHR 2017 (extracts)), an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the first applicant the sum of EUR 2,000 in respect of costs and expenses, plus any tax that may be chargeable on that amount, to be paid into the bank account of the applicants’ representative as indicated by the applicants.
C. Reopening of the criminal proceedings
132. The first applicant asked the Court to indicate to the Government in the operative part of the judgment that the criminal proceedings against the first applicant should be reopened.
133. The Government did not comment on the issue.
134. The Court refers to its settled case-law to the effect that when an applicant has suffered an infringement of his rights as guaranteed by Article 6 of the Convention, he or she should, as far as possible, be put in the position in which he would have been had the requirements of that provision not been disregarded, and that the most appropriate form of redress would, in principle, be the reopening of the proceedings, if requested (see, mutatis mutandis, Öcalan v. Turkey [GC], no. 46221/99, § 210, ECHR 2005‑IV, and Popov v. Russia, no. 26853/04, § 264, 13 July 2006). The Court notes, in this connection, that Article 413 of the Code of Criminal Procedure provides a basis for the reopening of the proceedings if the Court finds a violation of the Convention. It therefore considers that it is not necessary to make a separate ruling on the issue.
D. Default interest
135. 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. Declares the first applicant’s complaints concerning his ill-treatment in the Leninskiy ROVD and in IK-4, ineffective investigation into his allegations of ill-treatment, the unfairness of the criminal proceedings against him on account of the use of evidence obtained under torture and without access to a lawyer, and the complaints concerning the lack at his disposal of effective domestic remedies to complain of his ill-treatment in the Leninskiy ROVD admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 3 of the Convention under its substantive and procedural limbs on account of the first applicant’s ill-treatment in the Leninskiy ROVD in January 2005 and later in IK-4, as well as on account of the lack of effective investigation into those matters;
3. Holds that there is no need to examine the complaint under Article 3 of the Convention concerning subsequent episodes of the first applicant’s ill-treatment in the Leninskiy ROVD and the lack of effective investigation into those episodes;
4. Holds that there has been a violation of Article 6 § 1 of the Convention;
5. Holds there is no need to examine the complaint under Article 6 § 1 taken in conjunction with Article 6 § 3 (c) of the Convention and the complaint under Article 13 of the Convention taken in conjunction with Article 3 of the Convention;
6. Holds
(a) that the respondent State is to pay the first applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 67,600 (sixty seven thousand six hundred euros) to the first applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of costs and expenses to be paid into the applicants’ representative’s bank account as indicated by the applicants;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
7. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 22 September 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Olga Chernishova Alena Poláčková
Deputy Registrar President
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