THIRD SECTION

CASE OF SHMELEVA v. RUSSIA

(Application no. 43664/16)

JUDGMENT

STRASBOURG

28 November 2017

This judgment is final but it may be subject to editorial revision.

In the case of Shmeleva v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
	Luis López Guerra, President,
	Dmitry Dedov,
	Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 7 November 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 43664/16) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Tatyana Vladimirovna Shmeleva (“the applicant”), on 25 July 2016.
2.  The applicant was represented by Mr I. Sharapov, a lawyer practising in Moscow. The Russian Government ("the Government") were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
3.  The applicant alleged that her son had died as a result of torture inflicted on him in police custody, and that there had been no effective investigation in this respect.
4.  On 30 August 2016 the application was communicated to the Government.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1958 and lives in St Petersburg. She is the mother of the late Mr Denis Aleksandrovich Vyrzhikovskiy.
6.  On 1 October 2010 police officers apprehended the applicant’s son and his friend, Ms Z. and took them to the Moskovskiy District Department of the Interior of St Petersburg (УВД по Московскому району г. Санкт‑Петербурга). No record of their arrest was drawn up.
7.  For approximately six hours the applicant’s son was ill-treated by police officers He was repeatedly punched in the stomach and hit to the head, right palm and both calves. He was also subjected to the so-called “swallow” method of torture (“ласточка”), with his head, hands and legs being pulled together towards the spine.
8.  Two police officers then took the applicant’s son and Ms Z. to another police station. Ms Z. later testified to having seen a bruise on Mr Vyrzhikovskiy’s forehead and to his having been in pain and having had difficulties getting into a police car.
9.  Early in the morning on 2 October 2010 Mr Vyrzhikovskiy was taken from the station to a hospital. He died there eight days later. An autopsy report stated that the cause of death was “a severe fat pulmonary embolism aggravated by bronchopneumonia with cerebral edema resulted from a comminuted humeral head fracture with a tear of joint capsules and massive bruises, suffusion and strain of soft tissue and the subcutaneous fat layer.” A pathologist also found the following ante mortem injuries on Mr Vyrzhikovskiy’s body, all directly linked to his death: massive bruises covering hands, chest, upper back, neck, armpits and most of his face and ears; bruises on the left hip, right palm, right part of the stomach, right thigh, left knee, both calves; abrasions and bruises on the buttocks. All injuries had been inflicted by hard blunt objects.
10.  On 12 October 2010 criminal investigation was initiated. The applicant was granted victim status in the proceedings. Several police officers were charged with manslaughter and abuse of powers entailing a substantial violation of individual rights, committed using violence.
11.  On 26 March 2014 the Moskovskiy District Court of St Petersburg found the officers guilty as charged and sentenced them to various terms of imprisonment. On 1 October 2014 the St Petersburg City Court partially quashed the judgment and acquitted officers of manslaughter for lack of evidence. While having found it established that the injuries had been inflicted on the applicant’s son intentionally in the police custody, the City Court remitted the case for an additional investigation in order to identify those responsible for his death.
12.  On 2 March 2015 the investigation was suspended because the time‑limit for the investigation had expired and it was impossible to identify the perpetrators and to carry out any investigative measures in the absence of an accused. On 12 November 2015 the Oktyabrskiy District Court of St Petersburg upheld that decision as lawful. The decision became final on 27 January 2016.
Article II.	II.  RELEVANT DOMESTIC LAW
13.  For the relevant domestic law see Khismatullin v. Russia, no. 33469/06, §§ 27-33, 11 December 2014 and Keller v. Russia, no. 26824/04, §§ 54-61, 67-71, 17 October 2013.
THE LAW
Article III.	I.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
14.  The applicant complained that her son had killed in the police custody and that the authorities had failed to carry out an effective investigation into the events. She relied on Article 2 of the Convention, which, in its relevant part, reads as follows:
“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.”
15.  The Government did not contest the applicant’s arguments. They acknowledged that the facts of the case disclosed a violation of Article 2 of the Convention.
Section 3.01	A.  Admissibility
16.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.
Section 3.02	B.  Merits
17.  The Court reiterates that while there is no absolute obligation under Article 2 of the Convention for all prosecutions to result in conviction or in a particular sentence, the national courts should not under any circumstances be prepared to allow offences involving violent deaths to go unpunished (see, mutatis mutandis, Öneryıldız v. Turkey [GC], no. 48939/99, § 96, ECHR 2004-XII; Okkalı v. Turkey, no. 52067/99, § 65, ECHR 2006-XII (extracts); and Türkmen v. Turkey, no. 43124/98, § 51, 19 December 2006).
18.  In this connection the Court notes that the main purposes of imposing criminal sanctions include both retribution, as a form of justice for victims, and general deterrence aimed at the prevention of new violations and upholding the rule of law. However, neither of these aims can be obtained without the alleged perpetrators being brought to justice. Failure by the authorities to pursue the prosecution of the most probable direct perpetrators undermines the effectiveness of the criminal-law mechanism aimed at the prevention, suppression and punishment of unlawful killings. Compliance with the State’s procedural obligations under Article 2 requires the domestic legal system to demonstrate its capacity and willingness to enforce the criminal law against those who have unlawfully taken the life of another (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 160, ECHR 2005-VII; Jelić v. Croatia, no. 57856/11, § 90, 12 June 2014; and Ghimp and Others v. the Republic of Moldova, no. 32520/09, § 43, 30 October 2012).
19.  Taking into account the Government’s acknowledgement of a violation of Article 2 of the Convention along with the above principles, the circumstances of the present case, and the finding of the domestic authorities that the applicant’s son died as a result of injuries inflicted on him in police custody (see paragraph 11 above), the Court concludes that the State was responsible for his death and that there has been no effective investigation into the events surrounding it.
20.  There has, accordingly, been a violation of Article 2 under both its substantive and procedural limbs.
Article IV.	II.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
21.  The applicant also complained that her son had been tortured by the police officers after his apprehension on 1 October 2010 and that the investigation into the events had been ineffective. She invoked Article 3 of the Convention, which reads:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
22.  The Government acknowledged a violation of Article 3.
Section 4.01	A.  Admissibility
23.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.
Section 4.02	B.  Merits
24.  The Court observes that the Government did not dispute the applicant’s allegations that her son had been subjected to ill-treatment at the hands of the police after his arrest. The Russian courts also established that Mr Vyrzhikovskiy’s injuries had been inflicted intentionally in police custody (see paragraph 11 above).
25.  In view of the Government’s acknowledgment of ill-treatment and taking into account the findings of the domestic courts, the Court finds that the State was responsible for the ill-treatment of the applicant’s son.
26.  In the present case it was undisputed between the parties that for hours the applicant’s son was subjected to severe beatings and the so-called “swallow” method of torture. The Court finds that the treatment to which the applicant’s son was subjected, given its severity and duration, and the consequences thereof, amounted to torture (see Gäfgen v. Germany [GC], no. 22978/05, §§ 89-90, ECHR 2010).
27.  The Court concludes that there has been a breach of Article 3 of the Convention under its substantive limb.
28.  In the light of the finding relating to the procedural aspect of Article 2 of the Convention (see paragraph 19 above), the Court does not deem it necessary to make a separate finding under Article 3 of the Convention in respect of the alleged ineffectiveness of the investigation.
Article V.	III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
29.  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.”
Section 5.01	A.  Damage
30.  The applicant claimed 60,000 euros (EUR) in respect of non‑pecuniary damage.
31.  The Government considered that any award should be made in compliance with the Court’s case-law.
32.  Making its assessment on an equitable basis, the Court awards the applicant EUR 60,000 in respect of non-pecuniary damage.
Section 5.02	B. Costs and expenses
33.  The applicant made no claim for costs and expenses. Accordingly, the Court makes no award under this head.
Section 5.03	C.  Default interest
34.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Declares the application admissible;

2.  Holds that there has been a violation of Article 2 of the Convention on account of the death of the applicant’s son as a result of injuries inflicted on him at the hands of the police;

3.  Holds that there has been a violation of Article 2 of the Convention on account of the authorities’ failure to carry out an effective investigation into the death of the applicant’s son;

4.  Holds that there has been a violation of Article 3 of the Convention in that the applicant’s son had been subjected to torture in police custody;

5.  Holds that there is no need to examine separately the complaint under Article 3 of the Convention regarding the quality of the investigation into the events leading to the applicant’s son’s death;

6.  Holds
(a)  that the respondent State is to pay the applicant, within three months, EUR 60,000 (sixty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, 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 above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Done in English, and notified in writing on 28 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Luis López Guerra
	Deputy Registrar	President