Last Updated on December 7, 2021 by LawEuro
The applicants are Russian nationals. Between 2008 and 2015, they were arrested on suspicion of having committed drug-related crimes in various regions of Russia. They alleged, among other things, that they had been ill-treated by officers of the Federal Drug Control Service (“the FSKN”).
THIRD SECTION
CASE OF KISHKAREV AND OTHERS v. RUSSIA
(Applications nos. 24317/09 and 6 others – see appended list)
JUDGMENT
STRASBOURG
7 December 2021
This judgment is final but it may be subject to editorial revision.
In the case of Kishkarev and Others v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Peeter Roosma, President,
Dmitry Dedov,
Andreas Zünd, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the applications (nos. 24317/09 and 6 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 of the applications to the Russian Government (“the Government”);
the parties’ observations;
Having deliberated in private on 9 November 2021,
Delivers the following judgment, which was adopted on that date:
THE FACTS
1. The applicants are Russian nationals. Between 2008 and 2015, they were arrested on suspicion of having committed drug-related crimes in various regions of Russia. They alleged, among other things, that they had been ill-treated by officers of the Federal Drug Control Service (“the FSKN”).
2. The domestic authorities refused to institute criminal proceedings in this connection, except in the cases of Mr Kakaulin, Mr Petryayev, Mr Bogdanov and Mr Lavrov, which proceedings were eventually terminated.
3. Some of the applicants were later convicted of drug-related crimes on the basis of their confession statements.
4. The Government were represented by Mr M. Galperin, the then Representative of the Russian Federation to the European Court of Human Rights, and lately by Mr M. Vinogradov, his successor in that office.
5. The facts of the case, as submitted by the parties, may be summarised as follows.
I. Kishkarev v. Russia, No. 24317/09
A. Alleged ill-treatment
6. On 1 July 2008 at 8.50 p.m. during a test purchase, Mr Kishkarev was arrested by officers of the FSKN on suspicion of drug trafficking. According to the applicant, while arresting him the officers knocked him to the ground, then pistol-whipped him on the head and kicked him several times on his face and body.
7. On the same day at 10 p.m., officers took Mr Kishkarev to the Berezovskiy District Hospital, where he was examined by a doctor. It was noted in the record of this examination that the applicant had several bruises on his face and a bruised wound on the head. Mr Kishkarev told the medical personnel that he had “fallen and accidentally injured himself”.
8. On 2 July 2008 at 1 a.m., the applicant was placed in a temporary detention facility (“IVS”) in Zheleznogorsk. Upon arrival, he was examined by a doctor, who recorded bruises on both eyebrows, a bruise on the shoulder and a laceration lesion on the head.
9. On 3 July 2008 Mr Kishkarev was transferred to the IVS in Krasnoyarsk. Upon arrival, the applicant was examined by a doctor, who recorded the following injuries: a bruise on the right eye, abrasions on both eyebrows, and an infected lesion on the head. Mr Kishkarev told the doctor that he had “received these injuries accidentally, as a result of a fall”.
B. Official inquiry into the alleged ill-treatment
10. On 15 September 2008 the applicant lodged a complaint with the Berezovskiy investigation department, alleging that he had been subjected to ill-treatment.
11. On 2 February 2009 an investigator refused to institute criminal proceedings against the police officers. The refusal was based solely on the statements of the doctors and the police officers. The doctors who had examined the applicant in above-mentioned facilities (see paragraphs 8-9 above) confirmed the contents of the medical records and the applicant’s explanation of the origin of the injuries. The police officers denied all the allegations of ill-treatment, claiming that the applicant’s injury on the head had resulted from him resisting arrest. According to them, the applicant hit his head against the ceiling of the car while the officers were trying to arrest him. The applicant himself was not interviewed during the inquiry.
12. Mr Kishkarev challenged the refusal before the Berezovskiy District Court of the Krasnoyarsk Region, arguing that the investigation had been superficial. On 5 March 2009 the District Court upheld the decision without addressing the applicant’s arguments.
13. On 30 April 2009 the Krasnoyarsk Regional Court upheld the decision on a subsequent appeal.
II. Petryayev and Others v. Russia, No. 49085/09
A. Alleged ill-treatment of Mr Petryayev
14. On 14 March 2008 Mr Petryayev was arrested by the Arkhangelsk Regional Department of the FSKN at the Obozerskaya railway station, Arkhangelsk Region. Mr Petryayev submitted that he did not resist arrest.
15. In the evening of the same day, Mr Petryayev was taken to the FSKN premises in Arkhangelsk. According to the applicant, he was threatened with torture if he refused to confess or cooperate with the police. After that, officers started punching and kicking him. Mr Petryayev alleged that officers also put a plastic bag over his head to suffocate him and threatened to rape him with a truncheon. According to the applicant, he was tortured by the officers for almost a day, but he refused to confess.
16. On 16 March 2008 Mr Petryayev was transferred to remand prison IZ-29/1 in the Arkhangelsk Region. Upon arrival at the facility, Mr Petryayev was examined by a doctor, who recorded the following injuries: bruising to the internal surface of the left leg, bruising to the chest, bruises on his right and left inner thighs, and abrasions on the left and right wrists. Prison paramedics compiled a report about Mr Petryayev’s injuries and forwarded it to the prosecutor’s office.
B. Alleged ill-treatment of Mr Lavrov
17. On 14 March 2008 Mr Lavrov was arrested at his home in Obozerskaya and taken to the Obozerskaya police station. According to the applicant, the police officers handcuffed him, hit him in the face twice and kicked him on various parts of his body.
18. On the same day Mr Lavrov was transferred to the FSKN premises in Arkhangelsk. He alleged that while there he heard Mr Petryayev and Mr Bogdanov being beaten. Officer L. threatened him with beatings in order to force him to confess. When Mr Lavrov refused, the officer punched him several times. He continued beating him with a bottle full of water. According to Mr Lavrov, after several hours of beatings he wrote a self‑incriminating statement, also implicating Mr Petryayev.
19. Subsequently he was taken to an unspecified police unit to be interviewed by an investigator, who questioned him as a suspect in the presence of a State-appointed lawyer. Mr Lavrov maintained his confession, allegedly out of fear of further ill-treatment.
20. At the same police unit Mr Lavrov was inspected by a duty officer. He alleged that by that time he had multiple haematomas which were clearly visible, but the duty officer recorded only the one on his back.
C. Alleged ill-treatment of Mr Bogdanov
21. On 14 March 2008 Mr Bogdanov was arrested at the police station in Obozerskaya. According to him, unidentified police officers handcuffed him, kicked him several times on the legs, after which they bent him over and kicked him in the solar plexus.
22. Then, together with Mr Petryayev and Mr Lavrov, he was transferred to Arkhangelsk and taken to the FSKN premises. According to Mr Bogdanov, the officers kicked him on the legs and chest and suffocated him by putting a plastic bag over his head several times. He alleged that he also heard Mr Lavrov and Mr Petryayev being beaten. Out of fear, he wrote a self-incriminating statement prompted by the police officers, in which he also implicated Mr Petryayev.
23. On 15 March 2008 Mr Bogdanov confessed again, this time in the presence of a State-appointed lawyer.
24. On 17 March 2008, Mr Lavrov and Mr Bogdanov were admitted to a hospital in Obozerskaya, where they underwent an examination. They did not submit copies of the respective medical records.
D. Forensic medical examinations of the applicants
25. On 10 April 2008 Mr Petryayev’s medical records (see paragraph 16 above) were examined by a forensic medical expert. The medical record of this examination, compiled on 11 April 2008, confirmed the injuries recorded by the prison’s medical personnel on 16 March 2008, and concluded that these injuries could have resulted from blunt force trauma in a period of three days before Mr Petryayev’s examination.
26. On the same day Mr Lavrov’s medical records were examined by a forensic medical expert. The medical record of this examination, compiled on 11 April 2008, contained the injuries recorded by the hospital doctor on 17 March 2008 (see paragraph 24 above), namely bruises in the area of the right eye, on the right and left inner thighs and on the left side of the body. The medical expert concluded that the bruises could have resulted from blunt force trauma and had been inflicted between two and eight days before Mr Bogdanov’s examination.
27. On the same day Mr Bogdanov’s medical records were examined by a forensic medical expert. The medical record of this examination, compiled on 11 April 2008, contained the injuries recorded by the hospital doctor on 17 March 2008 (see paragraph 24 above), namely the bruise on the right inner thigh, the chest contusion and chest fracture The medical expert concluded that the bruise could have resulted from blunt force trauma and had been inflicted between two and eight days before his examination. It was noted in the record of the examination that the expert had not been provided with an X-ray and, therefore, other injuries could not be confirmed and examined.
E. Official inquiry into the alleged ill-treatment
28. At some point before 24 April 2008, Mr Petryayev and Mr Bogdanov complained about the ill-treatment to the investigative department of the Arkhangelsk prosecutor’s office.
29. On 24 April 2008 the investigator refused to open criminal proceedings into the applicants’ complaints. According to this decision, on 14 March 2008 two arresting officers drew up identical reports, stating that they had had to use force on Mr Petryayev and Mr Lavrov because they had resisted arrest. During the inquiry, the investigator only interviewed several officers who had been present at the time in the police station and concluded, based on their submissions, that the complaint was unsubstantiated. The investigator did not interview Mr Petryayev or evaluate the applicants’ injuries and their origin.
30. On 29 May 2008 the Oktyabrskiy District Court of Arkhangelsk upheld the decision of 24 April 2008 on a subsequent appeal.
31. On 15 July 2008 the Arkhangelsk Regional Court annulled the District Court’s decision and remitted the case for a new examination. The court found, in particular, that the investigator’s conclusions had been at odds with the facts established during the inquiry, and that Mr Petryayev’s medical record and statements had not been examined sufficiently.
32. At some point before 8 October 2008, Mr Bogdanov joined the complaints of the other applicants. Between August 2008 and February 2010, the investigators issued at least nine decisions refusing to institute criminal proceedings due to the lack of evidence. All of these decisions were annulled either by a supervising officer or by the courts.
33. On 27 April 2010 the investigator of the district prosecutor’s office decided to initiate criminal proceedings against the FSKN officers.
34. On 12 April 2011 the investigator of the district prosecutor’s office decided to discontinue the criminal proceedings against the officers due to the lack of evidence of a crime. In a detailed decision the investigator summarised the statements by the applicants, officers, doctors and several other witnesses, as well as the medical documents and other evidence. He concluded that the applicants’ allegations of ill-treatment were contradictory and were not corroborated by the other witnesses’ testimonies. As regards the injuries of Mr Petryayev and Mr Lavrov, the investigator concluded that they had likely been caused during the arrest. As regards Mr Bogdanov, the investigator found no evidence proving that the applicant had been injured while in custody and rejected his allegations, with reference to the statements of the officers. It appears that the decision was not appealed against.
F. Criminal proceedings against the applicants
35. On 26 December 2008 the Isakogorskiy District Court of the Arkhangelsk Region convicted Mr Petryayev, Mr Lavrov and Mr Bogdanov of various drug-related crimes on the basis of, among other things, Mr Lavrov’s and Mr Bogdanov’s confessions.
36. In response to the applicants’ request, the trial court excluded as inadmissible the applicants’ self-incriminating statements, except for the records of their interviews of 15 March 2008, when the applicants were questioned as suspects in the presence of State-appointed lawyers (see paragraphs 19 and 23 above).
37. On 17 April 2009 the Arkhangelsk Regional Court upheld the conviction, again rejecting the request to exclude the records of the interviews of 15 March 2008.
III. Shiraliyev v. Russia, No. 60527/10
A. Alleged ill-treatment
38. At 4 a.m. on 3 July 2009, the applicant left his flat in Norilsk and was immediately apprehended by a group of five FSKN officers. According to the applicant, he did not resist arrest, but was knocked to the ground and beaten up anyway. The applicant alleged that the officers handcuffed him and put a sack over his head, then took him to a police station.
39. According to the identical reports compiled upon the applicant’s arrest on 3 July 2009 by the arresting officers, after they saw the applicant leaving his flat, they loudly asked him to stop and lay down on the ground. Allegedly, Mr Shiraliyev did not obey, and instead put his arms in front of him and continued walking. Therefore, the police officers had had to knock him to the ground and handcuff his hands behind his back. According to the police record, the applicant had a knife and homemade nunchaku with him.
40. According to the applicant, after he was taken to the premises of Norilsk District Department of the FSKN, investigator K. told him to make a self-incriminating statement and cooperate with the police by providing names of the people involved in the drug trafficking. Allegedly, after he refused investigator K. and Officer S. punched him in the head and body numerous times in order to force him to cooperate. The applicant alleged that K. slapped him on the face, and S. hit his face against the table and punched him in the chest. According to the applicant, he was handcuffed the whole time, which caused him additional pain.
41. On 3 July 2009 at 4 p.m., the applicant was questioned by investigator K. in the presence of a State-appointed lawyer. During the interview he was asked about the origin of his injuries, and he submitted that he had “accidentally fallen down”.
42. On the same day the applicant was taken to traumatology centre of Norilsk Town Clinic no. 1, where a doctor recorded the following injuries: nasal fracture, bruises and abrasions on the face and an abrasion on the right leg. Later that day the applicant was questioned again by investigator K., and submitted a written statement claiming that he had not suffered any ill‑treatment at the hands of police officers, that he had received his injuries “as a result of a fall” and that he did not need any medical care.
43. On the same day the applicant was admitted to the temporary detention centre of Norilsk (“the Norilsk IVS”), where the facility’s paramedics recorded the following injuries: nasal fracture, bruises and abrasions on the face and an abrasion on the right leg.
44. On 5 July 2009 the applicant was transferred to the Norilsk pre-trial detention centre SIZO-4, where he was examined by a doctor upon arrival. According to the record, the following injuries were detected on the applicant immediately upon admission: a nasal septal fracture and bruises on the face, left forearm, right leg, left wrist and chest.
B. Official inquiry into the alleged ill-treatment
45. On 6 July 2009 the head of the Norilsk IVS reported the applicant’s injuries to a local police department. During the pre‑investigation inquiry, the applicant stated that on 3 July prior to his arrest he had had an argument with four unidentified persons, and as a result he had received the injuries mentioned in the report. On 7 July 2009 the authorities issued a refusal to institute criminal proceedings.
46. On 24 July 2009 the applicant’s medical records were examined by a forensic medical expert. The record of this examination, compiled on 28 August 2009, confirmed the injuries indicated in the records of 3 and 5 July, namely bruises on the face and left leg, and concluded that the injuries could have been the result of an impact with a blunt object. The expert also noted that the diagnosed fracture of the nose could not be confirmed due to the absence of an X-ray in the file.
47. On 24 July 2009 the investigator issued another refusal to institute criminal proceedings. During this inquiry the applicant submitted that he had been ill-treated by the officers during his arrest and subsequently beaten by investigator K. The refusal included the reports of two police officers who had arrested the applicant and a statement from investigator K., who claimed that the applicant had already been injured when he arrived at the police department. It also referred to the applicant’s prior statement, which he had given during the interview on 3 July 2009 (see paragraph 41 above), in which he had stated that he had received his injuries before his arrest “as a result of a fall”. Thus, the refusal concluded that the applicant had received his injuries before his arrest.
48. On 28 January 2010 the Norilsk deputy town prosecutor annulled the refusal of 7 July 2009 and ordered an additional inquiry.
49. On 5 February 2010 a new refusal to institute criminal proceedings was issued. The investigator reiterated that the injuries had been caused by unidentified persons before the arrival of the police officers and added that the police had questioned several locals as regards the events of 3 July 2009 but had not found any witnesses. The applicant appealed against the refusal to the prosecutor, claiming that the investigator had disregarded his submissions that the injuries had been inflicted by the police officers. On 17 March 2010 the Norilsk town prosecutor’s office refused to examine his complaint.
50. On 14 April 2010 the Norilsk deputy town prosecutor annulled the refusal of 5 February 2010.
51. On 15 April 2010 the Norilsk Town Court rejected the applicant’s complaint, since the decision of 5 February 2010 had already been annulled.
IV. Bobylev v. Russia, No. 45477/11
A. Alleged ill-treatment
52. On 9 April 2010 Mr Bobylev was arrested by officers of the Volgograd regional department of the FSKN.
53. On the same day the officer who had arrested the applicant drew up a report, briefly stating that the applicant had resisted arrest and therefore the officers had had to use force and handcuff him. According to the applicant, he did not resist arrest.
54. On the same day at around 10 p.m., applicant was taken to the FSKN premises. According to the applicant, the officers beat him severely in order to obtain his authorisation to conduct a search in his flat during the night. The applicant alleged that the police officers kicked and punched him numerous times on the face, legs, ribs and groin area.
55. On 11 April 2010 Mr Bobylev was placed in a temporary detention facility, where he was examined by a doctor upon arrival. The applicant did not provide any medical records in this regard, but on the same day he left a note in the journal of medical examinations of detainees, stating that he did not need medical assistance and had no complaints in this connection.
56. On 12 April 2010 the applicant was transferred to SIZO-5, Volgograd Region, where he was examined by a doctor upon arrival. The medical record indicated that he had haematomas on his left shoulder and in the right armpit area.
B. Official inquiry into the alleged ill-treatment
57. On 20 April 2010 the Volgograd Region prosecutor’s office received a report about Mr Bobylev’s injuries from SIZO-5 and carried out a preliminary inquiry.
58. On 30 April 2010 an investigator refused to institute criminal proceedings against the police officers. On the same day the investigator ordered a forensic medical examination in respect of the applicant’s medical record from SIZO-5.
59. On 14 May 2010 a forensic medical expert conducted an examination based on the medical record compiled in SIZO-5 on 12 April 2010. The expert concluded that the haematomas on the applicant’s body could have been inflicted by a blunt object. The expert further noted that the haematomas had been inflicted on different days: the haematoma in the armpit area could have been inflicted within one to three days preceding the medical examination, while the haematoma on the left shoulder could have appeared within five to ten days prior to the medical examination.
C. The appeal against the refusal of 30 April 2010
60. The applicant challenged the refusal of 30 April 2010 before the Volzhskiy Town Court. It appears that at some point before the hearing took place the supervising officer had annulled the investigator’s decision and ordered an additional inquiry.
61. On 18 May 2010 the Volzhskiy Town Court rejected the applicant’s complaint, since the decision being appealed against had already been annulled.
62. On 9 June 2010 a new refusal to institute criminal proceedings was issued. The decision included the medical records of 12 April and 14 May 2010, statements of police officers, and witnesses’ testimony. The investigator concluded that the use of force had been lawful, and that the haematoma indicated in the forensic medical examination had resulted from the applicant resisting arrest.
D. The appeal against the refusal of 9 June 2010
63. The applicant appealed against the decision of 9 June 2010 to the Volzhskiy Town Court. He argued that the investigators had failed to interview the personnel of the temporary detention facility and SIZO where he had been transferred after his arrest, to obtain and study the records of the applicant’s injuries made at these facilities, and had not conducted a proper forensic examination.
64. On 28 December 2010 the Volzhskiy Town Court dismissed the applicant’s complaint.
65. The applicant appealed against the decision of the Volzhskiy Town Court. On 15 March 2011 the Volgograd Regional Court dismissed his complaint and upheld the lower court’s findings.
V. Koveshnikov v. Russia, No. 63421/16
A. Alleged ill-treatment
66. On 6 February 2015 the applicant was arrested by officers of the Tomsk Region FSKN. According to the applicant, he was approached by two men, who he found out later were Officers G. and K. The applicant alleged that both officers wore plain clothes and did not identify themselves. As they approached the applicant, one of them hit him in the right eye, after which he fell down, hit his head on the ice-covered ground and lost consciousness. He came to his senses when the officers turned him over and handcuffed his hands behind his back. The applicant tried to put his head up, when one of the officers pushed his knee into the applicant’s back, which caused him to hit his forehead on the ice again. Then the officers tried to lift him from the ground by pulling him up by the handcuffs, but he lost his balance and fell down again. After that the police officers placed the applicant in a car, where one of them allegedly hit him in the face about eight times and another punched him two or three times. Later on the same day in the FSKN premises, the applicant wrote a confession statement.
67. On the same day Officer K. drew up a report, briefly stating that the applicant had “resisted arrest” and therefore the officers had had to use force and handcuff him.
68. In the evening of the same day, the applicant was taken to a temporary detention facility, where personnel refused to admit him to the facility, since he had visual signs of beatings on his face. Subsequently the applicant was taken to Town Hospital no. 3, Tomsk, where he was diagnosed with infraorbital haematomas under both eyes.
69. On 7 February 2015 the applicant was transferred to SIZO-1, Tomsk Region, where a doctor recorded the following injuries: infraorbital haematomas on both sides of the face, abrasions on the face and swelling of the right elbow joint.
B. Official inquiry into the alleged ill-treatment
70. On 19 February 2015 the applicant’s lawyer lodged a complaint with the Tomsk regional prosecutor’s office about the actions of the police officers during his arrest.
71. On 25 May 2015 the applicant’s mother lodged a complaint with the Tomsk investigation department. On 24 April 2015 an investigator refused to institute criminal proceedings. The decision was based on the statements of the police officers, who argued that the applicant had vigorously resisted arrest and had dragged his own face over the icy asphalt surface. During the inquiry, on 17 April 2015, the investigator had ordered a forensic medical examination, but decided not to institute criminal proceedings even before obtaining the results of that examination.
72. On 30 April 2015 a forensic medical expert conducted an examination based on the applicant’s medical records, his statement explaining the origin of the injuries, and Officer K.’s statement. The expert confirmed the recorded injuries, and concluded that the infraorbital haematomas could have been inflicted by a blunt object. The expert was not able to determine when the injuries had been inflicted, since their description in the medical records provided by the investigation was not sufficiently detailed.
73. On 7 May 2015 a supervising officer annulled the refusal of 30 April 2015 due to the incompleteness of the inquiry conducted.
74. Between May and November 2015, the investigators issued at least four decisions refusing to institute criminal proceedings due to the lack of evidence of a crime. All of these decisions were annulled by a supervising officer.
75. On 19 February 2016 the investigator issued another refusal to institute criminal proceedings.
76. The applicant appealed against the decision of 19 February 2016 to the Kirovskiy District Court of Tomsk. On 8 August 2016 the District Court dismissed the applicant’s complaint.
77. On 12 August 2016 the applicant appealed against the decision of the District Court. On 3 October 2016 the Tomsk Regional Court dismissed his complaint.
VI. Lankin v. Russia, No. 10806/18
A. Alleged ill-treatment
78. On 6 April 2016 the applicant was arrested by officers of the FSKN, Perm Region. According to the applicant, during his arrest the officers punched and kicked him on various parts of his body. They also handcuffed him tightly, leaving abrasions on his wrists and causing them to swell.
B. The applicant’s interviews and confession
79. On 7 April 2016 during an informal conversation with the investigator, the applicant confessed. According to the applicant, he did this out of fear of further beatings. During this conversation the applicant was not provided with a lawyer.
80. On the same day the applicant was placed in the IVS in Perm. There the investigator interviewed the applicant as a suspect between 1 p.m. and 2 p.m., during which the applicant fully admitted his guilt. Between 2.15 and 2.30 p.m. the applicant was interviewed as an accused, and he again admitted his guilt. According to the applicant, a State-appointed lawyer was not present during the first interview. It appears that a lawyer arrived thirty minutes after the interview had started just to sign the record. According to the record made in the IVS visit log, the State-appointed lawyer visited the IVS between 1.27 and 2.45 p.m.
C. Official inquiry into the alleged ill-treatment
81. On 8 April 2016 the applicant was able to have a conversation with a lawyer of his own choosing, who on the same day lodged a complaint with a prosecutor’s office about the ill-treatment of the applicant.
82. On 8 April 2016 the applicant was examined by a doctor in the IVS. The doctor recorded bruises on the left elbow, on the left and right sides of the rib area, and on the left hand. He also recorded abrasions on the left shoulder, and on the left and right forearms.
83. On 11 April 2016 Officer M., who had arrested the applicant, drew up a report stating that the officers had had to use force and handcuff the applicant since he had resisted arrest.
84. On 8 July 2016 the investigator refused to institute criminal proceedings.
85. On 25 July 2016 the investigator ordered a forensic medical examination based on the applicant’s medical records. The forensic medical examination record compiled on 15 August 2016 confirmed the following injuries: bruises on the chest and bruises and abrasions on both arms. The expert was not able to determine when the injuries had been inflicted since their description in the medical records provided by the investigation was not sufficiently detailed.
86. On 17 April 2017 the refusal of 8 July 2016 was annulled by a supervising officer.
87. On 24 June 2017 a new refusal to institute criminal proceedings was issued. The investigator concluded that the use of force and the use of handcuffs by Officer M. had been reasonable, since the applicant, who was suspected of committing a crime, had actively resisted arrest.
88. On 21 August 2017 a supervising officer dismissed the applicant’s subsequent complaint about the refusal of 24 June 2017.
89. On an unspecified date the applicant lodged a complaint with the Sverdlovskiy District Court of Perm. On 12 January 2018 the District Court dismissed the applicant’s complaint.
90. The applicant appealed against the decision of the District Court. On 13 February 2018 the Perm Regional Court dismissed his complaint.
D. Criminal proceedings against the applicant
91. On 17 June 2017 the Sverdlovskiy District Court of Perm convicted the applicant of selling drugs and sentenced him to ten years’ imprisonment.
92. The applicant appealed to the Perm Regional Court, complaining that his statements had been given under duress and in the absence of a lawyer. On 16 August 2017 the Regional Court dismissed the complaint, finding it unsubstantiated.
93. On 9 February 2018 the Perm Regional Court dismissed the applicant’s subsequent cassation appeal.
VII. Kakaulin v. Russia, No. 14142/18
A. Alleged ill-treatment
94. On 20 March 2015, in a joint operation, special forces officers and officers of the Krasnoyarsk Region FSKN broke into the applicant’s flat in order to arrest him. According to the applicant, when the special forces officers broke in through the window he ran towards the exit and suddenly felt a blow on the back of his head, after which he fell down and lost consciousness.
95. On 21 March 2015 one of the FSKN officers drew up a report, in which he briefly noted that the officers had had to use force against Mr Kakaulin, since he had actively resisted arrest and attempted to destroy evidence.
96. According to the Government’s submissions and the report drawn up by Officer Sh. on 20 March 2015, after officers broke into the applicant’s flat he had attempted to flee and destroy the drugs he possessed. Officer Sh. had asked him to stop, and the applicant had pointed a knife at him. Allegedly, after that the officer had grabbed the applicant, they had both fallen down and as a result the applicant had been injured. Police officers had bandaged the applicant’s head and called an ambulance. The parties did not submit a copy of this report.
97. On the same day the applicant was taken to hospital, where he was diagnosed with an open traumatic brain injury, a brain contusion, a depressed parietal fracture and bruising of the parietal bone.
98. On the same day hospital personnel informed the police about the applicant’s injuries and his allegations that those injuries had been caused by ill-treatment.
B. Official inquiry into the alleged ill-treatment
99. On 8 May 2015 the investigator refused to open criminal proceedings concerning the alleged ill-treatment. The refusal was based on the identical submissions of the FSKN officers, who asserted that the applicant had “already [been] bleeding” when they broke into his flat. The investigating authorities did not interview the officers of the special forces unit, who had conducted the operation, or the applicant.
100. On 3 June 2015 a supervising officer annulled the refusal of 8 May 2015 and ordered an additional inquiry.
101. On 3 July 2015 the investigator instituted criminal proceedings into an alleged abuse of power.
102. According to the record of the medical forensic examination compiled on 11 August 2015, the applicant’s injuries could have been inflicted by a percussive impact with a possibly narrow blunt object. The expert noted that the applicant’s injury could have been inflicted by a crowbar, which the State officers had used to break into the flat.
103. On 21 October 2015 the investigator conducted a reconstruction of the events at the crime scene according to the version of Officer Sh. On 23 October 2015 the investigator ordered a forensic medical examination. The record of the forensic medical examination compiled on 2 November 2015 qualified the harm to the applicant’s health as “grave” and concluded that he could have sustained his injuries in the circumstances described by Sh.
104. On 1 December 2015 the investigator conducted a reconstruction of the events at the crime scene according to the applicant’s version of events, and on the same day the investigator ordered a forensic medical examination. According to the record of the forensic medical examination compiled on 10 December 2015, the applicant could have sustained his injuries in the circumstances described by him.
C. Termination of the criminal proceedings
105. Between March and November 2015, the investigators issued at least two decisions to terminate the criminal proceedings due to the lack of evidence. These decisions were annulled by supervising officers.
106. On 12 December 2016 the investigator issued a new decision to terminate the criminal proceedings.
107. The applicant appealed against that decision to the Oktyabrskiy District Court of Krasnoyarsk. On 24 April 2017 the District Court found the decision to terminate the criminal proceedings of 12 December 2016 unlawful.
108. On 20 July 2017 the District Court’s decision was annulled by the Krasnoyarsk Regional Court and remitted for a new examination.
109. On 16 October 2017 the Oktyabrskiy District Court of Krasnoyarsk dismissed the applicant’s complaint.
RELEVANT LEGAL FRAMEWORK
110. For the relevant provisions of domestic law on the prohibition of torture and other ill-treatment and the procedure for examining a criminal complaint (see Lyapin v. Russia, no. 46956/09, §§ 96-102, 24 July 2014, and Ryabtsev v. Russia, no. 13642/06, §§ 48‑52, 14 November 2013).
THE LAW
I. JOINDER OF THE APPLICATIONS
111. 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 3 AND 13 OF THE CONVENTION
112. The applicants complained that they had been subjected to ill‑treatment by State officials and that the State had failed to conduct an effective domestic investigation into those incidents. Some of the applicants also complained under Article 13 of the Convention that they had not had an effective remedy in respect of their complaints of ill-treatment. The relevant Convention provisions read as follows:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 13
“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.”
A. Admissibility
1. The parties’ submissions
113. The Government argued that Mr Kakaulin had failed to exhaust all the available domestic remedies, as he had not appealed against the decision of the Oktyabrskiy District Court of Krasnoyarsk of 16 October 2017.
114. Mr Kakaulin pointed out that the investigation concerning his ill‑treatment had been pending for over a year and a half, in addition to the pre-investigation inquiry preceding the institution of criminal proceedings and a couple of months taken by the domestic courts to consider the applicant’s complaint about the unlawfulness of the decision to discontinue the criminal proceedings. The applicant argued that, considering the length of the proceedings, the fact that an effective investigation had not been carried out despite the length of time that had passed, and the existence of multiple decisions to discontinue the criminal proceedings which had been upheld by the courts and prosecutor’s office, further appeals would not have been effective.
2. The Court’s assessment
115. As regards the Government’s objection in respect of Mr Kakaulin, the Court reiterates that, in principle, an appeal against a decision to discontinue criminal proceedings may offer a substantial safeguard against the arbitrary exercise of power by an investigating authority, given a court’s power to annul such a decision and indicate the defects to be addressed (see, mutatis mutandis, Trubnikov v. Russia (dec.), no. 49790/99, 14 October 2003). Therefore, in the ordinary course of events such an appeal might be regarded as a possible remedy where the prosecution has decided not to investigate the claims.
116. The Court has strong doubts that this remedy would have been effective in the present case. It observes that the investigator’s decisions to dispense with criminal proceedings in connection with the applicant’s allegations of ill-treatment were annulled on at least two occasions by supervising officers, who instructed the investigating authorities to carry out an additional inquiry (see paragraph 105 above). These inquiries also resulted in a decision to discontinue the criminal proceedings (see paragraph 106 above). Moreover, the applicant appealed to a court against the most recent decision to discontinue the criminal proceedings, which then found the decision unlawful. However, this decision was annulled on appeal and the case was remitted for a new examination.
117. In these circumstances, the Court is not convinced that an appeal against the District Court’s decision, which could only have had the same effect, would have offered the applicant any redress. The Court finds that in view of the previous similar decisions to remit the investigation, the applicant was not obliged to pursue that remedy and holds that the Government’s objection should therefore be dismissed (see Chumakov v. Russia, no. 41794/04, § 91, 24 April 2012, and Esmukhambetov and Others v. Russia, no. 23445/03, § 128, 29 March 2011).
118. The Court notes that the remaining applications 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
119. The applicants maintained their complaints, claiming that they had sustained their injuries as a result of their ill-treatment by police officers after they had been arrested. In addition, all of the applicants denied the allegations of their having resisted arrest.
120. The Government submitted in respect of all the cases that the applicants had resisted arrest, and that their injuries had been sustained as a result of the use of physical force by the police officers in order to prevent the applicants fleeing or destroying evidence. They further argued that the use of force had been strictly proportionate to the applicants’ behaviour during their arrests.
2. The Court’s assessment
(a) Mr Bobylev’s alleged ill-treatment
121. The Court notes that Mr Bobylev (no. 45477/11) submitted various medical documents in support of his allegations of ill-treatment on 9 April 2010 (see paragraphs 56 and 59 above). However, his description of the severity of the alleged beatings (see paragraph 54 above) does not correspond to the injuries found on him directly after the events. While the applicant alleged that he was severely beaten in the face, ribs, legs and groin area, the medical documents confirmed only one haematoma in the armpit area.
122. In view of the above, the Court cannot conclude beyond reasonable doubt that Mr Bobylev was indeed subjected to the treatment complained of (see, for similar reasoning, Nekrasov v. Russia, no. 8049/07, §§ 90-96, 17 May 2016, and Uzhakov and Albagachiyeva v. Russia [Committee], no. 76635/11, § 108, 23 June 2020).
123. Consequently, the Court cannot find a substantive violation of Article 3 of the Convention in respect of Mr Bobylev’s alleged ill‑treatment.
(b) Use of force
124. The Court observes that the remaining applicants were suspected of non-violent crimes, and that their arrests were planned beforehand with the participation of police officers outnumbering the applicants. The applicants submitted that they did not behave violently or resist aggressively (see paragraphs 6, 14, 17, 21, 38, 66, 78 and 94 above). Also, no such information was mentioned in the police reports.
125. The Court further notes that in Mr Kishkarev’s case, the State officers failed to draw up a report about the force used at all, while in the other cases the reports contained repetitive and sketchy descriptions of the applicants’ alleged resistance. They lacked explanations of the exact actions taken by the officers and the effect that they had on the applicants’ health (see paragraphs 29, 39, 67, 83 and 95 above).
126. The most serious injuries sustained by most of the applicants (head or facial trauma) bear little relation to the force that would have been necessary to suppress their resistance or immobilise them (see paragraphs 7‑8, 16, 26-27, 44, 69, 82 and 97 above). In the Court’s view, the Government’s reliance on the above-mentioned reports is further undermined by the complete absence of information of any injuries or signs of struggle on the officers involved in the respective operations. This is even more conspicuous given that some of the applicants’ injuries were quite serious.
127. The actual reaction of the State officers and the proportionality of such a reaction to the applicants’ behaviour was never assessed by the investigating authorities or the domestic courts. Only in the case of Mr Kakaulin did the authorities ask the forensic medical experts detailed questions about whether the applicant’s injuries could have been sustained in the circumstances alleged by the officers (see paragraph 103 above).
128. In view of the above shortcomings, the Court does not find it necessary to examine the present case from the standpoint of proportionality and necessity of the use of force during lawful arrest. The Court will continue the examination of the applicants’ allegations in the light of the general principles developed in its case-law concerning police violence (see Bouyid v. Belgium [GC], no. 23380/09, §§ 81-90, ECHR 2015).
(c) Credibility of the applicants’ allegations of ill-treatment and the presumption of fact
129. The Court has already established that Mr Kishkarev (no. 24317/09), Mr Petryayev, Mr Bogdanov and Mr Lavrov (no. 49085/09), Mr Shiraliyev (no. 60527/10), Mr Koveshnikov (no. 63421/16), Mr Lankin (no. 10806/18) and Mr Kakaulin (no. 14142/18) were apprehended by State officers on suspicion of having committed various drug‑related crimes (see paragraphs 6, 14, 17, 21, 38, 66, 78 and 94 above).
130. The Court further observes that all the applicants submitted that they had suffered ill-treatment at the hands of the police officers. They provided detailed and consistent accounts of the circumstances of the alleged ill-treatment, which involved severe beatings, including with a pistol and a water bottle, tight handcuffing, suffocation using plastic bags, and even threats of rape (see paragraphs 6, 15, 18, 21-22, 40, 66, 78 and 94 above).
131. After spending various periods of time in police custody, the applicants were found to have sustained injuries of varying degrees of severity, as recorded by doctors in hospitals and detention facilities, and later confirmed by forensic medical experts (see paragraphs 7-9, 16, 25-27, 42‑44, 46, 68-69, 72, 82, 85, 97 and 102-104 above).
132. The above factors are sufficient to give rise to a presumption in favour of the applicants’ accounts of the events and to satisfy the Court that the applicants’ allegations of ill-treatment in police custody were credible.
(d) Investigation into the alleged ill-treatment
133. In all of the cases, including the application brought by Mr Bobylev, the applicants presented credible allegations of their injuries being the result of violence by State officers. These were dismissed by the investigating authorities as unfounded mainly because of the statements of the State officers denying the applicants’ ill-treatment or claiming that the use of force had been necessary and strictly proportionate to the applicants’ resistance (see paragraphs 11, 29, 47, 58, 71, 84 and 99 above). The investigators issued several decisions refusing to open criminal proceedings, some of which were annulled as unlawful and incomplete (see paragraphs 31-32, 48, 60, 73-74, 86 and 100 above).
134. In the case of Mr Petryayev, Mr Bogdanov and Mr Lavrov, the investigating authorities refused to institute criminal proceedings at least ten times, relying on the statements of the officers who had arrested the applicants and those who had been present at the FSKN premises during the alleged ill-treatment (see paragraphs 29 and 32 above). The above decisions were subsequently annulled by supervising officers. Criminal proceedings were only instituted two years after the alleged ill-treatment. However, within a year they were again terminated due to the lack of evidence of a crime (see paragraph 34 above).
135. Criminal proceedings in Mr Kakaulin’s case were instituted four months after the alleged ill-treatment and terminated several times with reference to submissions of the State officers claiming that the applicant’s injuries had resulted from the lawful use of force. Two decisions to terminate the criminal proceedings were annulled by supervising officers, but eventually the domestic courts upheld the investigator’s decisions and terminated the proceedings (see paragraphs 105-109 above).
136. As regards the quality of the forensic expert examinations, the Court reiterates that proper medical examinations are essential safeguards against ill-treatment (see Akkoç v. Turkey, nos. 22947/93 and 22948/93, §§ 55 and 118, ECHR 2000‑X). The Court notes that no forensic examination was conducted in respect of Mr Kishkarev (no. 24317/09). The forensic examinations conducted in respect of the other applicants were based on the applicants’ medical records and did not involve them being physically examined by the experts.
137. In addition, some of the forensic examinations were conducted with a significant delay. Mr Koveshnikov’s medical documentation (no. 63421/16) was examined more than two months after his arrest. The forensic medical examination of Mr Lankin (no. 10806/18) was ordered by the investigator more than three months after the alleged ill-treatment had taken place and completed almost a month later. The earliest forensic examination report in Mr Kakaulin’s case (no. 14142/18) was drawn up almost five months after his arrest (see paragraphs 72, 85 and 102 above).
138. The Court further notes that since the experts did not examine the applicants personally, they had to rely completely on the medical records provided by the authorities, which were often poorly compiled. In particular, the forensic experts were only able to identify when the injuries had been inflicted in the cases of Mr Petryayev, Mr Bogdanov and Mr Lavrov (no. 49085/09) and Mr Bobylev (no. 45477/11), since the records of the bodily injuries in the other cases contained no forensic qualification such as quantity, form, size and exact anatomic location. Moreover, in the cases of Mr Bogdanov and Mr Shiraliyev, the expert was not provided with X-rays confirming the fracturing of the applicants’ bones and, therefore, could not examine them or answer the authorities’ questions (see paragraphs 27 and 46 above).
139. The Court considers that the fact that the experts did not examine the applicants personally combined with the insufficient information provided to the forensic experts made it impossible to examine some of the applicants’ injuries and determine when they had been inflicted or the gravity of some of the others. Thus, it was impracticable for them to provide adequate answers to the questions raised by the requesting authorities (see Mogilat v. Russia, no. 8461/03, § 64, 13 March 2012).
140. Furthermore, the Court reiterates its finding that the pre‑investigation inquiry conducted under Article 144 of the Code of Criminal Procedure of the Russian Federation does not allow the authorities to conduct a proper criminal investigation in which a full range of investigative measures are carried out (see Lyapin v. Russia, no. 46956/09, § 129, 24 July 2014). In itself, a refusal by the authority to open a criminal investigation into credible allegations of serious ill‑treatment in police custody is indicative of the State’s failure to comply with its obligation under Article 3 of the Convention to carry out an effective investigation (ibid., §§ 132‑36).
141. An investigation into credible allegations of ill-treatment must be thorough, meaning that the authorities must make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis for their decisions (see Assenov and Others v. Bulgaria, 28 October 1998, § 103, Reports of Judgments and Decisions 1998‑VIII). The two-year delay in instituting criminal proceedings into credible allegations of ill-treatment in the case of Mr Petryaev, Mr Bogdanov and Mr Lavrov (see paragraph 134 above) had a significant adverse impact on the investigation, considerably undermining the investigating authorities’ ability to secure evidence concerning the alleged ill‑treatment (see Razzakov v. Russia, no. 57519/09, § 61, 5 February 2015).
142. In the case of Mr Kakaulin, there is nothing to explain the four‑month delay in commencing the criminal investigation into the alleged ill-treatment. Moreover, the Court finds it striking that even though the applicant’s version of events was supported by two distinct forensic medical examinations, the authorities decided to terminate the criminal proceedings anyway, relying on the alternative medical examination and explanations of the arresting officers.
143. In view of the foregoing, the Court finds that the authorities did not take all reasonable steps available to them to secure evidence and did not make a serious attempt to find out what had happened (see, among other authorities, Assenov and Others, cited above, §§ 103 et seq., and Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000‑IV). It holds that the Government have failed, except in the case of Mr Bobylev, to discharge their burden of proof and produce evidence capable of casting doubt on the applicants’ account of events, which it therefore finds established (see Olisov and Others v. Russia, nos. 10825/09 and 2 others, §§ 83-85, 2 May 2017, and Ksenz and Others v. Russia, nos. 45044/06 and 5 others, §§ 102‑04, 12 December 2017).
(e) Legal classification of the treatment
144. The applicants alleged that they had been subjected to torture and inhuman and degrading treatment.
145. Having regard to the applicants’ injuries confirmed by medical evidence, the Court finds that the police subjected Mr Kishkarev, Mr Koveshnikov and Mr Lankin to inhuman and degrading treatment. As regards Mr Petryayev’s and Mr Lavrov’s allegations of having been suffocated with a plastic bag, the Court finds them unsubstantiated by any materials in the case file. However, their injuries clearly resulted from the beatings by the State officers, and in this connection the Court concludes that Mr Petryayev and Mr Lavrov were subjected to inhuman and degrading treatment.
146. The Court finds Mr Shiraliyev’s injuries, in particular the fracture of his nose (see paragraphs 42 and 46 above), and Mr Bogdanov’s chest contusion and chest fracture (see paragraph 27 above) serious. It notes that the ill‑treatment was inflicted on the applicants with a view to extracting a confession statement, causing severe physical and mental suffering. The Court concludes that the ill-treatment in issue amounted to torture (see Tigran Ayrapetyan v. Russia, no. 75472/01, §§ 13 and 77, 16 September 2010, and Chenchevik v. Ukraine [Committee], no. 56920/10, § 79, 18 July 2019).
147. The Court notes that the forensic medical expert, on the basis of the injuries sustained by Mr Kakaulin (open traumatic brain injury, brain contusion, depressed parietal fracture and bruising of the parietal bone), classified the harm to his health as “grave” (see paragraph 103 above). Having regard to the circumstances of their infliction, the nature of the injuries and the long-term effect they had on the applicant’s health, the Court concludes that the treatment to which Mr Kakaulin was subjected amounted to inhuman and degrading treatment.
(f) Conclusion
148. There has accordingly been a violation of Article 3 of the Convention under its substantive limb in respect of Mr Kishkarev, Mr Petryayev, Mr Bogdanov, Mr Lavrov, Mr Shiraliyev, Mr Koveshnikov, Mr Lankin and Mr Kakaulin. There has also been a violation of Article 3 of the Convention under its procedural limb in respect of all of the applicants. In the light of this finding, the Court considers that it is not necessary to examine whether there has also been a violation of Article 13 of the Convention in respect of Mr Koveshnikov, Mr Bobylev, Mr Shiraliyev, Mr Petryayev, Mr Bogdanov, Mr Lavrov and Mr Kakaulin.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
149. Mr Petryayev, Mr Bogdanov and Mr Lavrov (no. 49085/09) complained that their convictions had been based on confession statements made by Mr Bogdanov and Mr Lavrov during their interviews on 15 March 2008 as a result of their ill-treatment. Mr Lankin (no. 10806/18) complained that his conviction had been based on the self-incriminating statements he had made as a result of his ill-treatment and in the absence of a lawyer. The Court will examine these complaints under Article 6 § 1 of the Convention, the relevant part of which provides as follows:
“In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal …”
A. Admissibility
150. The Court notes that these grievances are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
B. Merits
1. The parties’ submissions
151. The applicants maintained their complaints.
152. The Government submitted that the applicants had been questioned in the presence of State-appointed lawyers and that they had not objected to being interviewed. They had also been informed about their right not to incriminate themselves, and had not raised any allegations of duress in the interview record. The Government also noted that the applicants’ interview records had not been the only evidence on which their convictions had been based. They argued that the applicants’ guilt had been sufficiently proven by other evidence in the cases.
2. The Court’s assessment
153. The Court reiterates that the admission of confession statements obtained as a result of torture or ill-treatment in breach of Article 3 of the Convention as evidence to establish the relevant facts in criminal proceedings renders the proceedings as a whole unfair, irrespective of the probative value of those statements and irrespective of whether their use was decisive in securing the defendant’s conviction (see Gäfgen v. Germany [GC], no. 22978/05, § 166, ECHR 2010).
154. In so far as the Government argued that the applicants were assisted by lawyers and could have raised the relevant ill-treatment complaints, the Court notes that in the case of Mr Lankin, the State-appointed lawyer arrived in the middle of the interview in question (see paragraph 80 above). This clearly indicates that the applicant was not able to have a private conversation with a lawyer beforehand, and that the legal assistance in question cannot be considered “effective”. Regarding Mr Bogdanov and Mr Lavrov the Court observes that there is nothing to indicate that they were able to have a private conversation with their lawyers. Moreover, while the domestic courts declared the applicants’ confessions inadmissible, they accepted the interview records, even though they contained the same self-incriminating statements obtained by the authorities subsequent to the applicants’ ill-treatment (see paragraphs 36-37 above).
155. The Court has already found that the applicants’ confessions were obtained as a result of inhuman and degrading treatment and torture in police custody (see paragraph 148 above) and sees no reason to depart from those findings. This enables the Court to conclude that the domestic courts’ use of the applicants’ confessions obtained as a result of their ill-treatment in violation of Article 3 of the Convention rendered the proceedings unfair.
156. These principles apply not only where the victim of the treatment contrary to Article 3 of the Convention is the actual defendant but also where third parties are concerned (see Ćwik v. Poland, no. 31454 10, § 75, 5 November 2020, with further references). In the light of the above findings, the Court finds that the admission and use of the confessions of Mr Bogdanov and Mr Lavrov implicating Mr Petryayev (see paragraphs 19 and 23 above) in the criminal proceedings against Mr Petryayev rendered the trial as a whole unfair, in violation of Article 6 § 1 of the Convention.
157. There has therefore been a violation of Article 6 § 1 of the Convention in respect of Mr Petryayev, Mr Bogdanov, Mr Lavrov and Mr Lankin.
158. In the light of the above finding, the Court considers that it has examined the main legal questions raised in the present application and that there is no need to give a separate ruling on Mr Lankin’s complaint under Article 6 § 3 (c) of the Convention (see Denisov v. Ukraine [GC], no. 76639/11, §§ 138-39, 25 September 2018, and Tolmachev v. Russia, no. 42182/11, § 59, 2 June 2020).
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
159. Lastly, the Court has examined the other complaints submitted by the applicants and, having regard to all the material in its possession and in so far as the complaints fall within the Court’s competence, it 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 these parts of the applications must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
160. 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.”
161. The amounts claimed by the applicants under the heads of pecuniary and non‑pecuniary damage and costs and expenses are indicated in the appended table.
162. In particular, Mr Petryayev claimed 1,494,280 Russian roubles ((RUB) – 16,600 euros (EUR)) in respect of pecuniary damage, equating to the loss of his income for the period between 2008 and 2013 when he was serving his sentence in the correctional facility.
163. Mr Koveshnikov claimed RUB 65,000 (EUR 730) in respect of legal costs and an additional RUB 47,000 (EUR 530) for postal and translation expenses.
164. Mr Petryayev claimed RUB 181,000 (EUR 2,000) for his lawyers’ fees. The applicant submitted many receipts of the sums allegedly paid to his lawyers, but he did not provide any of the agreements entered into with them. Mr Petryayev also claimed RUB 278,819 (EUR 3,110) which equals the amount spent by the applicant on food, clothing, and postal expenses in the detention facilities.
165. The Court granted legal aid in the amount of EUR 850 to Mr Shiraliyev. He further claimed EUR 3,900 in respect of legal costs, EUR 500 for his postal expenses and an additional EUR 150 for the postal expenses incurred by his lawyer. The applicant submitted an agreement with a lawyer, but he did not provide any invoices or receipts proving the legal costs claimed had actually been incurred. He also did not provide any receipts in respect of the postal expenses.
166. Mr Kishkarev, Mr Bogdanov, Mr Lavrov, Mr Bobylev, Mr Lankin and Mr Kakaulin did not claim any compensation under the head of costs and expenses.
167. The Government invited the Court to make its awards in accordance with its case-law.
A. Damage
168. The Court considers that the applicants must have suffered anguish and distress as a result of the violations found. In these circumstances, the Court considers it reasonable to award the sums indicated in the appended table.
169. Regarding Mr Petryayev, the Court finds that his pecuniary damage claim has no causal connection with the violations of the Convention found, and should therefore be dismissed.
B. Costs and expenses
170. As to costs and expenses, the Court reiterates that an applicant is entitled to their reimbursement only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.
171. Mr Petryayev and Mr Shiraliyev had failed to demonstrate that the costs and expenses claimed by them have actually been incurred. The Court, therefore, dismisses their claims under this head.
172. Regarding Mr Koveshnikov’s claim, the Court awards him EUR 1,260 in respect of the costs and expenses incurred.
C. Default interest
173. 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. Dismisses the Government’s plea of non-exhaustion in the case of Mr Kakaulin;
3. Declares the complaints concerning the applicants’ alleged ill-treatment by State officers, the lack of an effective investigation into their complaints, and the use of confession statements obtained in violation of Article 3 of the Convention in their convictions admissible, and the remainder of the applications inadmissible;
4. Holds that there has been a violation of Article 3 of the Convention under its substantive limb in respect of Mr Kishkarev, Mr Petryayev, Mr Lavrov, Mr Koveshnikov, Mr Lankin and Mr Kakaulin on account of inhuman and degrading treatment to which they were subjected, and in respect of Mr Shiraliyev and Mr Bogdanov and on account of torture to which they were subjected;
5. Holds that there has been a violation of Article 3 of the Convention under its procedural limb in respect of all applicants;
6. Holds that there is no need to examine the complaints of Mr Koveshnikov, Mr Bobylev, Mr Shiraliyev, Mr Petryayev, Mr Bogdanov, Mr Lavrov and Mr Kakaulin under Article 13 of the Convention;
7. Holds that there has been a violation of Article 6 § 1 of the Convention in respect of Mr Petryayev, Mr Bogdanov, Mr Lavrov and Mr Lankin;
8. Holds that there is no need to examine Mr Lankin’s complaint under Article 6 § 3 (c) of the Convention;
9. 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 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;
10. Dismisses the remainder of the applicants’ claims for just satisfaction.
Done in English, and notified in writing on 7 December 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Olga Chernishova Peeter Roosma
Deputy Registrar President
__________
APPENDIX
| No. |
Case name Application no. Lodged on |
Applicant Year of birth Place of residence Nationality Represented by |
Non-pecuniary damage |
Pecuniary damage |
Costs and expenses |
||
| 1 | Kishkarev v. Russia 24317/09 13/04/2009 |
Vyacheslav Valeryevich KISHKAREV 1974 Tayezhnyy Russian |
Sought by the applicant | ||||
| EUR 100,000 | – | – | |||||
| Awarded by the Court | |||||||
| EUR 26,000 (twenty-six thousand euros) | – | – | |||||
| 2 | Petryayev and Others v. Russia 49085/09 23/08/2009 |
Pavel Gennadyevich PETRYAYEV 1980 Koryazhma RussianVyacheslav Leonidovich BOGDANOV 1973 Obozerskiy RussianIgor Vladimirovich LAVROV 1983 Obozerskiy Russian Olga Aleksandrovna NOVIKOVA |
Sought by Mr Petryayev | ||||
| RUB 5,140,800 (EUR 57,120) |
RUB 1,494,280 (EUR 16,600) |
RUB 459,819 (EUR 5,110) |
|||||
| Awarded by the Court | |||||||
| EUR 26,000 (twenty-six thousand euros) |
– | – | |||||
| Sought by Mr Bogdanov | |||||||
| RUB 3,000,000 (EUR 33,330) |
– | – | |||||
| Awarded by the Court | |||||||
| EUR 33,330 (thirty-three thousand three hundred and thirty euros) |
– | – | |||||
| Sought by Mr Lavrov | |||||||
| RUB 3,000 000 (EUR 33,330) |
– | – | |||||
| Awarded by the Court | |||||||
| EUR 26,000 (twenty-six thousand euros) |
– | – | |||||
| 3 | Shiraliyev v. Russia 60527/10 22/09/2010 |
Dzhalil Vezir Ogly SHIRALIYEV 1966 Norilsk RussianEduard Valentinovich MARKOV |
Sought by the applicant | ||||
| EUR 50,000 | – | EUR 4,550 | |||||
| Awarded by the Court | |||||||
| EUR 50,000
(fifty thousand euros) |
– | – | |||||
| 4 | Bobylev v. Russia 45477/11 22/06/2011 |
Roman Anatolyevich BOBYLEV 1975 Lepley RussianOlga Aleksandrovna SADOVSKAYA |
Sought by the applicant | ||||
| EUR 12,000 | – | – | |||||
| Awarded by the Court | |||||||
| EUR 12,000 (twelve thousand euros) |
– | – | |||||
| 5 | Koveshnikov v. Russia 63421/16 29/10/2016 |
Viktor Sergeyevich KOVESHNIKOV 1991 Tomsk RussianYevgeniy Dmitriyevich YAZYKOV |
Sought by the applicant | ||||
| EUR 15,000 | – | RUB 112,000 (EUR 1,260) | |||||
| Awarded by the Court | |||||||
| EUR 15,000 (fifteen thousand euros) |
– | EUR 1,260 (one thousand two hundred and sixty euros)- |
|||||
| 6 | Lankin v. Russia 10806/18 15/02/2018 |
Konstantin Vladimirovich LANKIN 1986 Shirokovskiy RussianLarisa Valentinovna ALFEROVA |
Sought by the applicant | ||||
| EUR 70,000 | – | – | |||||
| Awarded by the Court | |||||||
| EUR 26,000 (twenty-six thousand euros) |
– | – | |||||
| 7 | Kakaulin v. Russia 14142/18 12/03/2018 |
Pavel Sergeyevich KAKAULIN 1987 Krasnoyarsk RussianAleksandr Aleksandrovich BRESTER |
Sought by the applicant | ||||
| EUR 60,000 | – | – | |||||
| Awarded by the Court | |||||||
| EUR 26,000 (twenty-six thousand euros) |
– | – | |||||
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