Last Updated on April 6, 2021 by LawEuro
INTRODUCTION. The applications concern the alleged ill-treatment and death of the applicants’ relatives at the hands of State agents between 2007 and 2013 and the lack of an effective investigation thereof, as well as other complaints under well‑established case-law.
THIRD SECTION
CASE OF ROMANOVA AND OTHERS v. RUSSIA
(Applications nos.21080/09 and 3 others – see appended list)
JUDGMENT
STRASBOURG
30 March 2021
This judgment is final but it may be subject to editorial revision.
In the case of Romanova and Others v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Darian Pavli, President,
Dmitry Dedov,
Peeter Roosma, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the applications (nos. 21080/09 and 3 others) 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 Russian nationals (“the applicants”) on the various dates indicated in the appended table;
the decision to give notice to the Russian Government (“the Government”) of the complaints;
the parties’ observations;
Having deliberated in private on 9 March 2021,
Delivers the following judgment, which was adopted on that date:
1. The applications concern the alleged ill-treatment and death of the applicants’ relatives at the hands of State agents between 2007 and 2013 and the lack of an effective investigation thereof, as well as other complaints under well‑established case-law.
THE FACTS
The circumstances of the case
2. The applicants are Russian nationals who live in various regions of Russia. Their details are set out in the appendix.
3. The Russian Government (“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.
A. Romanova v. Russia, no. 21080/09
5. At the time of the events, the applicant lived in the village of Laskovskiy in the Ryazan Region with her husband, Mr Vyacheslav Romanov (born in 1965).
1. Death of Mr Romanov on 8 May 2007
6. On 8 May 2007 Mr Romanov quarrelled with a neighbour. At about 3.30 p.m. a local police officer, B., apprehended Mr Romanov and put him in a police car.
7. Ms N.G., the applicant’s other neighbour, witnessed him being apprehended. Her brother, Mr S.G., was also apprehended and put in the same police car. TheyweretakentothePolyanskiypolicestation (Полянское ПОМ (поселковое отделение милиции) ОВД по Рязанскому муниципальному округу).
8. At about 6.25 p.m. Mr Romanov fainted at the station. An ambulance was called. At 6.50 p.m. the doctor on board recorded Mr Romanov’s death. His body had multiple, visible injuries.
9. Later in the evening, the officers went to the applicant’s house and informed her that Mr Romanov had died of a heart attack.
2. Ms N.G.’s complaint about the detention of Mr S.G.
10. On 28 May 2007 Ms N.G. lodged a complaint with the department of the interior of the Ryazan Region. She submitted that on 8 May 2007 she had seen police officer B. forcing Mr Romanov into a police vehicle. Her brother, Mr S.G., had already been in the police vehicle and B. had insulted them both and threatened to beat them.
11. She further complained that Mr S.G. had been taken to the police station and held there until 9 May 2007. His finger had been broken and he had had blood all over his head. Mr S.G. later told her that officers had beaten him and Mr Romanov.
12. She also complained that on 10 May 2007 the officers had again apprehended her brother and she did not know where he had been taken.
13. On 25 June 2007 she reiterated her complaint to the Ryazan regional prosecutor, submitting that she still had no news of Mr S.G. and alleging that he had been detained by the police because he was the main witness in the criminal case regarding the death of Mr Romanov.
3. Criminal investigation into the death of Mr Romanov
(a) Opening of the investigation and granting of victim status
14. On 10 May 2007 the applicant received Mr Romanov’s death certificate, according to which his death had been caused by acute massive internal haemorrhage and a liver rupture.
15. On 10 May 2007 an investigator of the Ryazan district prosecutor’s office opened a criminal case into the infliction of the bodily injuries that caused Mr Romanov’s death.
16. On 28 May 2007 the applicant was granted victim status. When interviewed, she submitted that Ms N.G. had told her about Mr Romanov being apprehended and about Mr S.G.’s statements concerning the beatings at the police station.
17. On 13 July 2007 the investigator interviewed Mr S.G. He did not provide any information about Mr Romanov’s detention at the police station on 8 May 2007, and denied that he himself had been detained or held there.
(b) Forensic medical examination of Mr Romanov’s body
18. On 14 May 2007 the investigator ordered a forensic medical examination of Mr Romanov’s body.
19. According to report no. 120/1215-07 of 21 June 2007, Mr Romanov’s death had been caused by a liver rupture resulting in acute haemorrhaging in his abdominal cavity (кровоизлияние в брюшную полость).
20. The forensic expert also found that the following injuries had been inflicted before Mr Romanov’s death: fractures of the ninth and tenth ribs on the right side, multiple grouped abrasions and bruising to the soft tissue on the back of the body, a bruise on the left temple, laceration of the upper lip and numerous other abrasions and bruises on his body and limbs. The expert found a direct causal link between the injuries and Mr Romanov’s death.
21. The expert concluded that the injuries had been inflicted using a hard blunt object within several hours before death.
22. On 29 August 2012 the expert issued additional report no. 87/1215‑12. According to this report, the most probable mechanism of the liver rupture was the infliction of a blow with a hard blunt object. The expert noted that it could not be excluded that the injury could have been caused by repeated falls from a standing position, for example, by hitting protruding parts inside the police car.
(c) Suspension of the criminal case
23. Between 10 October 2007 and 16 July 2012 the investigator issued five decisions to suspend the investigation for failure to identify a suspect.
24. The decisions contained the submissions of police officer B., according to which he had apprehended Mr Romanov and taken him and Mr S.G. to the police station on 8 May 2007. Mr Romanov had been in a state of intoxication and had acted violently, repeatedly hitting the door of the police car. At the station he had fainted. The ambulance had arrived and the doctor on board had recorded Mr Romanov’s death.
25. The investigator also interviewed the applicant and Ms N.G., who reiterated their initial statements (see paragraph 10 above). He also interviewed Dr R., the ambulance doctor who had examined Mr Romanov’s body upon arrival at the crime scene. He submitted that Mr Romanov had had a boot print on his stomach.
26. All five decisions were quashed as incomplete and unfounded. The senior investigator ordered, among other things, that Mr S.G. be questioned and that additional investigative measures be carried out.
27. On 1 September 2012 the case was again suspended. Referring to forensic report no. 87/1215-12, the investigator came to the same conclusions as before, in particular, that the injuries had been caused by Mr Romanov hitting protruding parts of the interior of the police car.
28. On 26 April 2013 the criminal case was resumed. The investigator questioned Mr S.G. and Ms N.G., who submitted that the police officers had not used violence against Mr Romanov. Ms N.G. retracted her earlier submissions.
(d) Forensic medical examination by a panel of experts of 14 June 2013
29. On 24 May 2013 the investigator ordered a forensic medical examination by a panel of experts on the basis of medical documents and previous forensic examinations contained in the criminal case file.
30. On 14 June 2013 a panel of three forensic experts of the Ryazan Bureau of Forensic Examinations carried out the forensic medical examination. According to their report no. 37, it was improbable that Mr Romanov’s liver rupture had been caused by him repeatedly hitting protruding parts of the interior of a car or falling outside the car. According to the experts, such an injury was usually caused by falling from a great height. They further concluded that one of the most probable causes of the liver rupture was the impact of a single kick, which could be confirmed by the statement of Dr R. (see paragraph 25 above) that there had been a boot print on Mr Romanov’s stomach.
31. The experts distinguished at least two traumatic impacts on the head, three impacts on the body and two on both legs.
32. The experts referred to the medical notes on the presence of ethyl alcohol in Mr Romanov’s blood and concluded that he had been heavily intoxicated, which would most probably have prevented him from performing vigorous movements of his own accord.
33. The experts concluded that the injuries had probably been inflicted between one and four hours before Mr Romanov’s death at 6.50 p.m. on 8 May 2007.
(e) Subsequent proceedings
34. On 13 August 2013 the investigator ordered another forensic examination.
35. On 2 September 2013 the investigator suspended the investigation for failure to identify a suspect.
4. Related proceedings
36. On 17 July 2007 the head of the Ryazan regional department of the Ministry of Internal Affairs of Russia, having conducted an internal inquiry, acknowledged that during Mr Romanov’s arrest, his transfer to the police station and upon discovery of his body, police officers B. and seven others had acted incorrectly and unlawfully. The officers were reprimanded.
B. Kulbuzheva v. Russia, no. 69990/11
37. At the time of the events the applicant lived in the village of Verkhniye Achaluki in the Malgobek district in Ingushetia with her husband, Mr Murad Bogatyrev (born in 1970).
38. On 5 September 2007 a group of unknown armed persons attacked military unit no. 3737, which was deployed in Malgobek. As a result of the attack, three military officers were injured. A criminal case into the attack was opened.
1. Death of Mr Bogatyrev on 8 September 2007
39. On 8 September 2007 at about 5 a.m. officers of the criminal investigation unit of the Malgobek District Department of the Interior in Ingushetia (ОУР ОВД по Малгобекскому району Ингушетии) and military officers from military unit no. 3737 searched the applicant’s house.
40. During the operation, the officers apprehended Mr Bogatyrev, who was suspected of having taken part in the attack of 5 September 2007.
41. Mr Bogatyrev was taken to the police station at some point thereafter. While there, he fainted and an ambulance was called. At about 6.45 a.m. the doctor on board recorded his death.
2. Criminal investigation into the death of Mr Bogatyrev
(a) Forensic medical examination of Mr Bogatyrev’s body
42. On 8 September 2007 a senior investigator of the investigation department in Malgobek ordered a forensic medical examination of Mr Bogatyrev’s body.
43. According to forensic report no. 69 of 21 September 2007, Mr Bogatyrev had the following injuries: a fractured sternum, factures of the first, third, fourth and fifth ribs, and haemorrhaging caused by the fractures; extensive bruising to his shoulders and thighs, and multiple bruises on both legs. The injuries had been caused by the impact of a hard blunt object. The expert also found that Mr Bogatyrev had suffered from coronary heart disease.
44. The expert concluded that death had been as a result of acute coronary failure caused by ischemic heart disease. He found that there was no direct causal link between the injuries and his death, but that “it could not be excluded that the injuries [had] contributed to his death”.
45. On 22 May 2008 the investigator questioned the forensic expert. He submitted that one or two hours had passed between the infliction of the injuries and Mr Bogatyrev’s death.
(b) Opening and suspension of the criminal case
46. On 3 October 2007 the investigator opened a criminal case into abuse of power with the use of violence under Article 286 § 3 (a) of the Criminal Code.
47. Between 4 and 17 October 2007 the investigator interviewed police officers A.D., M.Ts., I.Ts. and B.G. as witnesses. They submitted that Mr Bogatyrev had fainted during questioning and they had called an ambulance. The doctor on board had recorded Mr Bogatyrev’s death. They denied the use of force.
48. On 4 December 2007 the applicant was granted victim status and interviewed.
49. On 18 and 31 December 2007 the investigator suspended the criminal case for failure to identify a suspect. He referred to the conclusions in the forensic report that Mr Bogatyrev had died of heart disease and that his injuries had not been linked to his death.
50. On an unspecified date, the investigation was resumed.
51. On 1 February 2008 military officer A.V., interviewed as a witness in the Chita Region, submitted that he had participated in the operation on 8 September 2007, but had not seen who had taken Mr Bogatyrev to the police station.
52. On 22 May 2008 the investigator interviewed police officer M.Kh. He submitted that Mr Bogatyrev had been taken to the police station by the military officers and police officers A.D. and I.Ts for questioning. M.Kh. had learned of his death from police officer I.Ts.
53. On 28 May 2008 police officer I.Ts. reiterated his statements (see paragraph 47 above) and submitted that Mr Bogatyrev had been questioned by military officers.
54. On 25 June 2008 the deputy prosecutor of Ingushetia requested the Malgobek investigation department to put an end to the breaches of the criminal procedure and to take investigative measures. He ordered, among other things, that the military officers who had participated in the operation on 8 September 2007 be identified and questioned.
55. On 30 June 2008 the investigator again suspended the criminal case for failure to identify suspects.
56. On 16 June 2009, 6 April 2010 and 29 June 2011 the applicant lodged several complaints with the investigator’s superiorsabout the investigator’s inactivity and asked that the criminal case be transferred to another region for investigation, arguing that the Malgobek investigation department lacked the requisite independence to investigate the case effectively. Her complaints were dismissed as unfounded.
57. On 8 June 2010 the senior investigator quashed the decision of 30 June 2008 to suspend the criminal case. According to the decision, none of the measures contained in the deputy prosecutor’s request of 25 June 2008 had been carried out (see paragraph 54 above).
58. On 15 July and 30 September 2010 the investigation was again suspended. The decisions were quashed by the senior investigator as incomplete.
59. On an unspecified date, the deputy prosecutor again requested the Malgobek investigation department to put an end to the breaches of the criminal procedure and to take investigative measures.
(c) The applicant’s attempts to access the materials in the criminal case file
60. On 2 November 2010 the applicant complained to the Malgobek Town Court about her lack of access to the materials in the criminal case file.
61. On 30 November 2010 the court dismissed her complaint, finding that she could access all the materials in the case file upon completion of the investigation.
62. On 26 April 2011 the Supreme Court of Ingushetia upheld the Town Court’s decision.
C. Kartoyevy v. Russia, no. 9350/14
63. The applicants were Mr Umatgirey Kartoyev, the father of Mr Tarkhan Kartoyev (born in 1972), and Ms Tanzila Kartoyeva, Mr Tarkhan Kartoyev’swife (see appendix).
64. By a letter of 11 July 2017, the applicants’ representative informed the Court that Mr Umatgirey Kartoyev had died on 8 February 2017. Ms Tanzila Kartoyeva expressed the wish to maintain the application. Any further reference to Mr Kartoyev is to Mr Tarkhan Kartoyev.
1. Background information
65. On 25 February 2013 the Supreme Court of Russia convicted Mr Kartoyev of a crime. On 28 June 2013 he was transferred to correctional colony no. 2 in Yekaterinburg to serve his sentence.
2. Death of Mr Kartoyev on 29 June 2013
66. According to the Government, on 29 June 2013 Mr Kartoyev was being kept in a quarantine cell with other detainees. According to the authorities, at about 9.05 p.m. he felt unwell and fell from his bed.
67. Mr Kartoyev was taken to an intensive care unit. Despite the medical staff’s efforts to resuscitate him, at 9.40 p.m. he died.
3. Inquiry into the death of Mr Kartoyev
(a) Forensic medical examinations of Mr Kartoyev’s body
68. On 1 July 2013 a senior investigator of the investigation department in Yekaterinburg ordered a forensic medical examination of Mr Kartoyev’s body.
69. On 3 July 2013 a forensic expert examined the body. According to his report no. 253/2716-13 of 6 August 2013, Mr Kartoyev had three abrasions on his head and thirteen bruises on various parts of his body, caused by at least sixteen blows with a hard blunt object within three days before his death.
70. Mr Kartoyev also had fractures of his second, third, fourth and fifth ribs on his right side, and fractures of his fourth, fifth, sixth and seventh ribs on his left side. The expert concluded that the fractures had been inflicted after death, possibly during the attempt to resuscitate him.
71. The expert found that death had been caused by acute coronary heart disease and there was no direct causal link between his injuries and his death.
72. On 12 September 2013 and 22 December 2014 additional forensic medical examinations were carried out. They confirmed the findings of the first examination.
(b) Refusals to open a criminal case
73. On 3 July 2013 the applicants’ lawyer lodged a criminal complaint concerning the ill-treatment and death of Mr Kartoyev.
(i) Refusal of 29 July 2013
74. On 29 July 2013 the senior investigator refused to open a criminal case. The decision contained statements of correctional colony guards, Mr Kartoyev’s cellmates and medical staff, according to which he had lost consciousness and fallen from his bed, whereupon he had been taken to intensive care. He had had no visible injuries and no physical force had been used against him.
75. Referring to the forensic reports, the investigator found that Mr Kartoyev had died of heart disease. He noted that “the legal assessment of the infliction of the bodily injuries should be dealt with separately”.
76. On an unspecified date the applicants complained to the Verkh‑Isetskiy District Court of Yekaterinburg against the refusal to open a criminal case.
77. On 8 August 2013 a prosecutor quashed the refusal as incomplete.
78. On 25 December 2013 the Verkh-Isetskiy District Court discontinued the proceedings into the applicants’ complaint against the refusal of 29 July 2013 in view of its quashing by the prosecutor.
(ii) Refusal of 12 September 2013
79. On 12 September 2013 the senior investigator issued a second refusal to open a criminal case, which was identical to the first.
80. On 5 June 2014 the Verkh-Isetskiy District Court quashed the refusal following the applicants’ complaint. The parties did not provide a copy of the court decision.
(iii) Refusal of 17 February 2015
81. On 17 February 2015 the investigator again refused to open a criminal case. The decision was identical to the previous refusals. As regards the injuries found on Mr Kartoyev’s body, the investigator found that they could have been self-inflicted.
D. Chertovskikh v. Russia, no. 25846/16
82. The applicant was the mother of Mr Vladimir Tkachuk who was born in 1989.
83. On an unspecified date, Mr Tkachuk was convicted of an offence. He had been serving his sentence in a correctional colony in the Orenburg Region, but on 4 October 2012 he was transferred to remand prison no. 2, also in the Orenburg Region.
1. Death of Mr Tkachuk on 5 September 2013
84. On 2 September 2013 Mr Tkachuk was doing construction work in the remand prison.
85. On 3 September 2013 he was transferred to a prison hospital ward. According to his cellmates, he had a head injury and bruising to his eye. Mr Tkachuk did not tell them how he had sustained the injuries.
86. On 4 September 2013 at 9.50 p.m. Mr Tkachuk complained to medical staff that he had a fever and was shivering.
87. On the night of 5 September 2013, Mr Tkachuk screamed and started hallucinating. He was taken to a medical unit, where he fell into coma. At 2.50 a.m. the medical staff recorded his death.
2. Criminal investigation
(a) Forensic medical examinations of Mr Tkachuk’s body
88. On 6 September 2013 the investigator of the Orenburg Region investigation department ordered a forensic medical examination of Mr Tkachuk’s body.
89. According to forensic report no. 1168 of 23 September 2013, Mr Tkachuk had a closed craniocerebral injury, a haemorrhage into the soft tissue of his head and a skull fracture, and these injuries had caused his death. He also noted bruises on his neck and penis.
90. On 11 March 2014 the applicant’s representative requested the Main State Centre of Forensic Medical Examination to carry out a forensic medical examination of Mr Tkachuk’s body on the basis of medical documents in her possession.
91. According to forensic report no. 05/14 of 7 April 2014, the head injuries and skull fracture had been caused by repeated blows with a hard blunt object. The expert found it improbable that the injuries could have been caused by a single blow from a vertically standing board falling on a person. He also found that the bruises on the neck and penis had also been caused by the impact of a hard blunt object.
92. On 1 July 2014 another forensic examination was carried out on the order of the investigator. According to report no. 404, Mr Tkachuk’s injuries had been caused by the impact of a hard blunt object.
(b) Pre-investigation inquiry
93. Between 5 October 2013 and 6 March 2014, the investigator issued six decisions refusing to open a criminal case into the death of Mr Tkachuk. The investigator concluded that Mr Tkachuk’s death had been caused by the impact of a board that had fallen on him while he had been doing construction work.
94. All the decisions were quashed by a prosecutor as incomplete and unfounded.
(c) Initiation and termination of the criminal case
95. On 12 March 2014 the investigator opened a criminal case into the infliction of serious harm to health causing death by negligence under Article 111 § 4 of the Criminal Code. On an unspecified date the applicant was granted victim status.
96. On 12 August 2014 the investigator discontinued the investigation, concluding that Mr Tkachuk had died in an accident while doing construction work and that there were no elements of a criminal offence.
97. On 17 September 2014 the investigator’s decision was quashed as unfounded.
98. On 29 October 2014 and 12 May and 17 July 2015 the investigator issued three more similar decisions to discontinue the investigation. They contained witness statements of the applicant, forensic experts, prison officers, Mr Tkachuk’s cellmates, and references to forensic medical examination reports nos. 1168 and 404. The investigator concluded that Mr Tkachuk’s head injury had been caused in the accident during the construction work. As to the bruises on his neck and penis, the investigator referred to the statements of his cellmates that Mr Tkachuk had scratched his skin in those areas.
99. The decisions of 29 October 2014 and 12 May 2015 were quashed as incomplete and unfounded.
100. On 5 November 2015 the Leninskiy District Court granted the applicant’s subsequent complaint against the decision of 17 July 2015. It noted, among other things, that the investigator had failed to take into account the conclusions contained in forensic report no. 05/14 of 7 April2014 (see paragraph 91 above).
101. On 12 April 2016 the decision of 17 July 2015 was quashed. However, between 19 May 2016 and 20 March 2017 the criminal case was discontinued at least twice on the same grounds.
(d) Further developments
102. On 14 December 2016 notice of the application was given to the Government.
103. On 7 June 2017 the authorities arrested the head of remand prison no. 2, Mr Sh., as well as its head of security, Mr S. They were suspected of abuse of power and of having inflicted serious injuries on Mr Tkachuk. They were placed in detention on remand. It is unclear what the outcome of the proceedings against Mr Sh. and Mr S. was.
RELEVANT LEGAL FRAMEWORK AND PRACTICE
104. For a summary of domestic law concerning the pre-investigation inquiry and procedure for a criminal investigation, see Lyapin v. Russia, no. 46956/09, §§ 96-102, 24 July 2014.
105. For a summary of domestic law concerning murder, infliction of bodily injuries and abuse of power, see Keller v. Russia, no. 26824/04, §§ 54-71, 17 October 2013.
THE LAW
I. JOINDER OF THE APPLICATIONS
106. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.
II. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION
107. The applicants complained that their relatives had been killed by State officials while in custody, and that the criminal investigations into their deaths had been ineffective. Ms Romanova (no. 21080/09), Ms Kulbuzheva (no. 69990/11) and Ms Kartoyeva (no. 9350/14) also complained that their relatives had been ill-treated prior to their death. They relied on Articles 2 and 3 of the Convention, the relevant parts of which read as follows:
Article 2
“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
…”
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment …”
A. Admissibility
108. The Court notes that the 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
109. The Government submitted that the conclusions of the domestic criminal proceedings had been correct. The applicants maintained their complaints.
2. The Court’s assessment
110. The Court reiterates its general principles governing States’ obligations under Articles 2 and 3 of the Convention, as summarised in Lykova v. Russia, no. 68736/11, §§ 113-19, 22 December 2015, and, on the procedural obligations, in Güzelyurtlu and Others v. Cyprus and Turkey [GC], no. 36925/07, §§ 218-219, 29 January 2019.
(a) Substantive aspect of Articles 2 and 3 of the Convention
111. The Court observes that it is not disputed by the parties that the applicants’ relatives, Mr Romanov, Mr Bogatyrev, Mr Kartoyev and Mr Tkachuk, were found dead at the premises of different State law‑enforcement bodies (see paragraphs 8, 41, 67 and 87 above). Mr Romanov and Mr Bogatyrev were taken to police stations on suspicion of having committed offences. Mr Kartoyev and Mr Tkachuk were convicted persons who were serving their respective sentences at the time of the events. It is therefore established that the applicants’ relatives were entirely under the control of State officials at the time of their death.
112. The Court notes that all of them sustained serious bodily injuries prior to their death, including bones fractures (Mr Romanov, Mr Bogatyrev, Mr Kartoyev), haemorrhaging of internal organs and liver rupture (Mr Romanov), craniocerebral injury and skull fracture (Mr Tkachuk), as well as other bruises and abrasions (see paragraphs 20, 43, 69, 70 and 89 above).
113. The Court reiterates that where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. The burden of proof is then on the authorities to provide a satisfactory and convincing explanation by producing evidence establishing facts which cast doubt on the account of events given by the victim. In the absence of such explanation, the Court can draw inferences which may be unfavourable for the Government (see Bouyid v. Belgium [GC], no. 23380/09, § 83, ECHR 2015).
114. Where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention (see Gäfgen v. Germany [GC], no. 22978/05, § 92, ECHR 2010). The above applies a fortiori in the context of injuries entailing the death of the victim (see Khayrullina v. Russia, no. 29729/09, § 72, 19 December 2017).
115. In the case of Mr Romanov and Mr Bogatyrev, nothing in the case files suggests that prior to their apprehension by the police they had had any injuries. The Court notes that neither the authorities, nor the Government provided a plausible explanation for the injuries found on the applicants’ relatives’ corpses. In the case of Mr Bogatyrev, they failed to provide any explanation for his numerous rib fractures and extensive bruising to his body, limiting themselves simply to an allegation that these injuries had not been directly responsible for Mr Bogatyrev’s death (see paragraph 49 above).
116. The investigator’s explanation of the injuries found on Mr Romanov’s body is not plausible either. In particular, his conclusion that Mr Romanov had sustained a liver rupture and rib fractures by hitting protruding parts of the interior of the police car clearly contradicted the conclusions of the forensic medical examination carried out by the panel of experts (see paragraph 30 above). The investigation appears to have ignored the existence of a boot print on Mr Romanov’s body (see paragraph 25 above).
117. As to Mr Kartoyev, the investigator concluded that his injuries, in particular, rib fractures and multiple bruises, could have been self-inflicted (see paragraph 81 above). In arriving at such a conclusion, the investigator did not rely on any evidence. Nor did he provide any plausible explanation confirming this version of events.
118. As to Mr Tkachuk, the investigator’s assertion that he had sustained a craniocerebral injury and skull fracture as a result of a single blow caused by a board having fallen on him during construction work was refuted by the forensic expert, who stated that this version of events was improbable (see paragraph 91 above).
119. The Court further observes that Mr Romanov’s and Mr Tkachuk’s respective injuries were the direct cause of their death (see paragraphs 20 and 89 above), while it is contested whether the injuries sustained by Mr Bogatyrev and Mr Kartoyev were linked to their death. The Court notes, nevertheless, that in the case of Mr Bogatyrev the expert did not exclude that his injuries could have contributed to his death (see paragraph 44 above).
120. In this regard the Court reiterates that the responsibility of the State under Article 2 of the Convention is not confined to cases in which there exists significant evidence that the use of force by State agents has, or could have, directly caused the death of a person (see Dimitrovand Others v. Bulgaria, no. 77938/11, § 131, 1 July 2014, with further references).
121. Given the lack of an adequate explanation for the injuries sustained by the victims capable of refuting the strong presumption that the deaths occurred as a result of the State officials’ actions, the Court concludes that the Russian authorities must be held responsible for the deaths of Mr Romanov, Mr Bogatyrev, Mr Kartoyev and Mr Tkachuk.
122. The Court further considers that the applicants’ relatives’ injuries were serious enough to trigger the application of Article 3 of the Convention, which prohibits in absolute terms torture or inhuman or degrading treatment or punishment (ibid., § 132). In view of the lack of a plausible explanation by the Government of how the victims’ serious injuries had been sustained, the Court therefore considers it established that Mr Romanov, Mr Bogatyrev and Mr Kartoyev were subjected to torture prior to their death in violation of Article 3 of the Convention (see Karpylenko v. Ukraine, no. 15509/12, § 122, 11 February 2016).
123. There has accordingly been a violation of the substantive aspect of Article 2 of the Convention in respect of Mr Romanov, Mr Bogatyrev, Mr Kartoyev and Mr Tkachuk and a violation of the substantive aspect of Article 3 of the Convention in respect of Mr Romanov, MrBogatyrev and Mr Kartoyev.
(b) Procedural aspect of Articles 2 and 3 of the Convention
124. The obligation to carry out an effective investigation into allegations of treatment infringing Articles 2 and 3 of the Convention suffered at the hands of State agents is well established in the Court’s case‑law (see Giuliani and Gaggio v. Italy [GC], no. 23458/02, §§ 298-306, ECHR 2011 (extracts), and Bouyid, cited above, §§ 114-23).
125. In the Court’s view, in the instant case the applicants’ allegations disclosed an arguable claim and the authorities were therefore obliged to carry out an investigation in order to comply with the procedural obligation arising under Articles 2 and 3 of the Convention.
126. The Court notes that in none of the present cases were the investigative authorities capable of establishing the circumstances of the victims’ deaths. In the case of Mr Kartoyev a criminal investigation into his death was not even initiated, despite him having multiple rib fractures which could hardly have been caused by a single fall from his bed (see paragraphs 74, 79 and 81 above). In this regard the Court reiterates that the mere carrying out of a pre‑investigation inquiry is insufficient for the authorities 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 (see Lyapin v. Russia, no. 46956/09, § 132, 24 July 2014).
127. Moreover, although the investigator mentioned in his refusal to open a criminal case that the assessment of the injuries found on Mr Kartoyev’s body was to be dealt with separately, he never did so (see paragraph 75 above).
128. The Court observes that in the case of Mr Bogatyrev the delay in initiating an investigation was about one month after his death (see paragraph 46 above). In the case of Mr Tkachuk the delay was about six months (see paragraph 95 above), during which time the investigator initially refused to open a criminal case at least six times (see paragraph 93 above). Such delays are unjustified and clearly contradict the requirement of promptness and reasonable expedition (see Hugh Jordan v. the United Kingdom, no. 24746/94, § 108, 4 May 2001), and make it difficult to secure the evidence, such as obtaining witness statements immediately after the incidents and to question possible suspects. In particular, the delay in opening a criminal case into the death of Mr Bogatyrev led to the impossibility to immediately question the military officers who had apparently taken him to the police station and questioned him (see paragraph 51 above).
129. The Court further notes that the investigation lasted for at least three years in the case of Mr Bogatyrev and Mr Kartoyev and about six years in the case of Mr Romanov. During this time the investigations were suspended and resumed multiple times for failure to identify a suspect (see paragraphs 23, 49, 55 and 58 above). All the decisions were quashed as incomplete or unfounded (see paragraphs 26, 57, 77 and 79 above).
130. In the case of Mr Tkachuk, despite the court’s indications that the investigator had failed to assess the conclusions of the forensic examination (see paragraph 100 above), the investigators continued to assert that his death had been accidental, which was not supported by any evidence, except for the statements of prison guards (see paragraph 101 above). Only after notice of the applicant’s case had been given to the Government in December 2016 did the authorities abandon this version of events and identify persons suspected of inflicting the injuries on Mr Tkachuk (see paragraphs 102-103 above). The Court further notes that, seven years after Mr Tkachuk’s death, it is still unclear whether the investigation yielded any tangible results.
131. In the case of Mr Romanov, the Court notes the lack of clarity in the circumstances surrounding the questioning of the witness Mr S.G., who was apprehended at the same time as Mr Romanov. In particular, he was apparently under the control of the authorities for about a month after the incident, as initially alleged by his sister, Ms N.G. (see paragraph 13 above). It appears from the record of his first interview on 13 July 2007 that he did not give any statements about the presence of Mr Romanov at the police station and that the investigator did not question him about this (see paragraph 17 above). It is unclear why Mr S.G. was questioned again only in 2013 and why he and his sister, who had witnessed the apprehension of Mr Romanov on 8 May 2007, retracted their earlier statements (see paragraph 28 above).
132. The Court reiterates that the investigation into an alleged unlawful killing by State agents must be capable of identifying and if appropriate punishing those responsible. This is not an obligation of result, but of means (see Giuliani and Gaggio, cited above, § 301). However, in the case of Mr Romanov the investigator’s actions clearly demonstrated the authorities’ reluctance to investigate effectively the death of a person at the hands of State law-enforcement officers. Indeed, for several years the authorities were incapable of identifying suspects among the State agents who had been on duty on the day of the events.
133. It is also particularly striking that in the case of Mr Romanov, as a result of the internal inquiry the officers in question were simply reprimanded for “incorrect and unlawful behaviour” (see paragraph 36 above). The Court considers that with such an attitude, in addition to the failure to carry out an effective investigation, the State fostered the State agents’ sense of impunity. The Court stresses that a proper response by the authorities in compliance with Article 2 standards in investigating serious allegations of the use of lethal force by agents of the State is essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see Dalakov v. Russia, no. 35152/09, § 78, 16 February 2016, with further references).
134. Lastly, the Court notes that during the investigation in the criminal case into the death of Mr Bogatyrev, the investigators failed to safeguard the interests of the applicant in the proceedings since she had apparently only had restricted access to the case file and had not been allowed to familiarise herself with the materials in the case file before the completion of the investigation (see paragraphs 60-62 above).
135. In view of the foregoing, the Court concludes that there has been a violation of the procedural aspect of Article 2 of the Convention in respect of Mr Romanov, Mr Bogatyrev, Mr Kartoyev and Mr Tkachuk and a violation of the procedural aspect of Article 3 of the Convention in respect of Mr Romanov, Mr Bogatyrev and Mr Kartoyev.
III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
136. Ms Romanova (no. 21080/09) complained that her late husband, Mr Romanov, had been unlawfully taken to the police station and detained there. She relied on Article 5 of the Convention, the relevant part of 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:
…”
A. Admissibility
137. The Government submitted that the applicant did not have standing to lodge a complaint under Article 5 of the Convention on behalf of her deceased husband, since the rights conferred by this Article were non‑transferable.
138. The Court reiterates that where the death or disappearance of the direct victim in circumstances engaging the State’s responsibility precedes the lodging of an application with this Court, any other person with a close link to the victim has standing to lodge such an application, in particular as regards Articles 2 and 3 of the Convention (see Khayrullina, cited above, § 91). As to Article 5 of the Convention, the rights enshrined in it belong to the category of non-transferable rights. However, a victim’s next of kin might exceptionally have standing to lodge a complaint under Article 5 § 1 of the Convention if it is connected to a complaint under Article 2 of the Convention relating to the victim’s death or disappearance engaging the State’s liability (see Khayrullina, cited above, § 91, with further references).
139. The Court has already established that Mr Romanov was found dead at the police station. The applicant sought the institution of criminal proceedings to have the circumstances of her husband’s arrest and death clarified. Dissatisfied with the outcome of those proceedings, the applicant lodged an application with this Court. It therefore concludes that the applicant has standing to lodge a complaint under Article 5 § 1 of the Convention and dismisses the Government’s objection.
140. The Court notes that the 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
141. The Court observes that it is not disputed between the parties that the applicant’s late husband was “deprived of his liberty” on 8 May 2007. The Government submitted that Mr Romanov had been taken to the police station because of an administrative offence.
142. In view of the above, it was incumbent on the Government to provide, with reference to satisfactory and convincing written evidence, a detailed hour-by-hour report of what happened at the station and to account for the time Mr Romanov spent there on 8 May 2007 (see Khayrullina, cited above, § 95). According to the Government, Mr Romanov had been taken to the police station, but the police officers had not had time to properly record his apprehension because he had died.
143. The Court considers the Government’s explanation unsatisfactory. Nothing in the case file clarifies the legal basis under Russian law for taking Mr Romanov to the police station.
144. The foregoing considerations are sufficient to enable the Court to conclude that Mr Romanov was deprived of his liberty on 8 May 2007 in breach of Article 5 § 1 of the Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
145. Lastly, Ms Kulbuzheva (no. 69990/11) complained under Article 13 of the Convention that she had not had an effective remedy in respect of her complaints under Articles 2 and 3 of the Convention. In view of the Court’s findings under those Articles, it considers it unnecessary to examine whether there has also been a violation of Article 13 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
146. 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
147. The amounts claimed by the applicants in respect of non‑pecuniary damage and costs and expenses are indicated in the appended table. Ms Kulbuzheva also claimed an amount in respect of pecuniary damage to compensate for the loss of the financial support of her husband.
148. The Court granted legal aid to Ms Kartoyeva amounting to 850 euros (EUR) in respect of costs and expenses. She did not provide a legal contract supporting the remaining claims for reimbursement of costs and expenses.
149. The Government submitted that the claims in respect of costs and expenses of Ms Romanova were excessive. As to the remaining claims of the applicants, they submitted that Article 41 of the Convention should be applied in accordance with the Court’s established case-law.
B. The Court’s assessment
150. 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.
151. 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 September1995, § 220, Series A no. 324).
152. Having regard to the conclusions and principles set out above and to 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.
153. 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. Declares the applications admissible;
3. Dismisses the Government’s objection as to the standing of Ms Romanova to complain under Article 5 of the Convention of Mr Romanov’s deprivation of liberty;
4. Holds that there has been a violation of Article 2 of the Convention under its substantive and procedural aspects in respect of Mr Romanov, Mr Bogatyrev, Mr Kartoyev and Mr Tkachuk;
5. Holds that there has been a violation of Article 3 of the Convention under its substantive and procedural aspects in respect of Mr Romanov, Mr Bogatyrev and Mr Kartoyev;
6. Holdsthat there has been a violation of Article 5 § 1 of the Convention in respect of Mr Romanov on account of his unlawful deprivation of liberty;
7. Holdsthat there is no need to examine Ms Kulbuzheva’s complaint under Article 13 of the Convention;
8. 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;
9. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 30 March 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Olga Chernishova Darian Pavli
Deputy Registrar President
____________
Appendix
List of cases:
| No. | Case name Application no. Lodged on |
Applicant Year of Birth Place of Residence Represented by |
Deceased relative Year of birth and death Affiliation with the applicant |
Non-pecuniary damage |
Pecuniary damage |
Costs and expenses |
| 1 | Romanova v. Russia 21080/09 14/04/2009 |
Natalya Anatolyevna ROMANOVA 1977 Ryazan MEMORIAL HUMAN RIGHTS CENTRE |
Mr Vyacheslav Romanov 1965-2007 The applicant’s husband |
Sought by the applicant | ||
| At the Court’s discretion | – | GBP 7,646.6 (about EUR 8,370) EUR 5,500 |
||||
| Awarded by the Court | ||||||
| EUR 65,000 (sixty-five thousand euros) | – | EUR 3,000[1] (three thousand euros) |
||||
| 2 | Kulbuzheva v. Russia 69990/11 26/10/2011 |
Eset Khuseynovna KULBUZHEVA 1983 Nazran MEMORIAL HUMAN RIGHTS CENTRE |
Mr Murad Bogatyrev 1970-2007 The applicant’s husband |
Sought by the applicant | ||
| At the Court’s discretion | EUR 31,158 | GBP 4,508.54 (about EUR 5,000) EUR 6,115 |
||||
| Awarded by the Court | ||||||
| EUR 65,000 (sixty-five thousand euros) | EUR 8,000 (eight thousand euros) |
EUR 3,000[2] (three thousand euros) |
||||
| 3 | Kartoyevy v. Russia 9350/14 25/12/2013 |
Umatgirey Alautdinovich KARTOYEV 1942-2017 |
Mr Tarkhan Kartoyev 1972-2013 The applicant’s son |
– | – | – |
| Tanzila Tarkhanovna KARTOYEVA 1983 Ekazhevo Oksana Vladimirovna PREOBRAZHENSKAYA |
The applicant’s husband | Sought by the applicant | ||||
| EUR 150,000 | – | EUR 6,000 RUB 17,376 (about EUR 250) |
||||
| Awarded by the Court | ||||||
| EUR 65,000 (sixty-five thousand euros) | – | – | ||||
| 4 | Chertovskikh v. Russia 25846/16 04/05/2016 |
Nadezhda Vladimirovna CHERTOVSKIKH 1968 Kasimov Olga Aleksandrovna SADOVSKAYA |
Mr Vladimir Tkachuk 1989-2013 The applicant’s son |
Sought by the applicant | ||
| At the Court’s discretion | – | EUR 6,500 | ||||
| Awarded by the Court | ||||||
| EUR 65,000 (sixty-five thousand euros) | – | EUR 3,000[3] (three thousand euros) |
||||
[1] The amount is to be paid to the bank account of the applicant’s representative.
[2] The amount is to be paid to the bank account of the applicant’s representative.
[3] The amount is to be paid to the bank account of the applicant’s representative.
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