THIRD SECTION

CASE OF KRAMARENKO v. RUSSIA

(Application no. 26107/13)

JUDGMENT

STRASBOURG

3 October 2017

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

In the case of Kramarenko v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
	Branko Lubarda, President,
	Pere Pastor Vilanova,
	Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 12 September 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 26107/13) 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, Mr Dmitriy Aleksandrovich Kramarenko (“the applicant”), on 26 February 2013.
2.  The applicant was represented by Mr A. Kramarenko, his father. 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.  On 20 November 2014 the complaints under Articles 3, 5 § 1 (c) and 13 of the Convention were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
THE FACTS
Article I.	THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1992 and lived, prior to his arrest, in Voronezh.
5.  On 9 October 2011 the applicant had an altercation with S., a security guard at his place of work. The applicant stabbed S. thirty-four times and then fled the scene. When Z. tried to stop him, the applicant stabbed him too. Both S. and Z. died.
Section 1.01	A.  Alleged unlawful detention and ill-treatment in police custody
6.  On 10 October 2011 the police located the applicant. They took the applicant for questioning to the police station approximately at 1-2 p.m.
7.  According to the applicant, the police officers beat him and subjected him to electrocution. They kept him handcuffed during the night and did not provide him with food or water.
8.  In the evening of 10 October 2011 the applicant was taken to hospital where a neurosurgeon examined him. According to the doctor’s statement given at a later date, the applicant did not have any injuries on his body.
9.  On 11 October 2011 at 5:05 p.m. the applicant underwent a forensic medical examination. The expert noted the following injuries on the applicant’s body: a bruise on the right shoulder joint, a bruise and an abrasion on the right shoulder, abrasions on the right calf. In the expert’s opinion, the applicant might have sustained the injuries as a result of an impact of solid blunt objects, including blows administered by arms and legs, not a long time before the forensic examination. The expert also noted a dot sized wound probably caused by a piercing object shortly before the forensic examination. The applicant submitted to the expert that he had no memory as to what had happened to him after he had been arrested by the police.
10.  On 18 November 2011 the investigator in charge of the applicant’s case reported the applicant’s injuries to the regional investigative committee. He considered that the applicant could have been subjected to ill-treatment while held in police custody on 10 October 2011.
11.  Following an inquiry into the circumstances of the applicant’s arrest, on 28 November 2011 the investigator refused to institute criminal proceedings against the police officers as regards the alleged unlawful deprivation of liberty of the applicant and ill-treatment in police custody on 10 October 2011. He based his conclusions on the findings as follows:
“On 11 October 2011 from 7:45 to 8:30 a.m. ... investigator F. questioned [the applicant] as a witness [in the murder case]. Without stating any reasons, [the applicant] refused to sign the questioning record.
According to Krav. and Ch., on 11 October 2011 they attested by their signature the [applicant’s] refusal to sign the questioning record. They did not see any injuries on [the applicant]. He did not complain about the police officers either.
On 11 October 2011 at 10:10 a.m., in the presence of the [applicant’s] lawyer B., [the applicant] was [officially] detained on suspicion of [murder] and from 10:40 a.m. to 11:10 a.m., he was questioned. He refused to say anything.
On 11 October 2011 [the applicant] underwent a medical forensic examination. ...
According to [the applicant], he did not remember where he had sustained the injuries documented by the expert. He did not complain about the police officers. They did not injure him.
Lawyer B. ... refused to comment ...
According to former investigator F., ... on 10 October 2010 [the police] established the [applicant’s] whereabouts and he was taken to the police station for questioning. In the evening he saw [the applicant] at the police station. The latter demonstrated strange behaviour; he hit his head against the wall, rolled around on the floor, fell down trying to hurt himself. He asked the police officers to take [the applicant] to hospital ... for examination. ...
According to police officer Krut., ... in the morning on 11 October 2011 he took [the applicant] to the [investigator’s office] ... . During questioning, [the applicant] repeatedly fell down hitting the floor with different parts of his body and refused to talk. ... . All the [applicant’s] injuries were self-inflicted. ... They did not use any physical force or put psychological pressure on [the applicant]. Nor did the latter allege such treatment.
According to police officer Bid., ... on 10 October 2011 they located [the applicant] ... and invited him for a talk to the police station. [The applicant] behaved in a strange way in the police car and at the police station. He claimed that he had no memory of the circumstances of the crime. He fell off the chair down on the floor and hit himself against pieces of furniture in the office. ... They did not use any physical force or put psychological pressure on [the applicant]. [The applicant] could have inflicted all the injuries himself when he hit his head against the wall, fell down off the chair and rolled around on the floor.
Police officers Kom., Mesh. and Sim. made similar statements. According to them, [the applicant] behaved in a strange way and tried to cause himself injuries. They did not use any physical force or put psychological pressure on [the applicant]. Furthermore, Kom. explained that on 10 October 2011 [the applicant] had stayed at the police station of his own will.
Police officers Moch. and Pov. made similar statements. They submitted that on 10 October 2011 at about 1-2 p.m. they had established the [applicant’s] whereabouts and invited him for a talk. At the police station [the applicant] had behaved in a strange way. He talked to himself, hit his head and back against the wall, fell down and rolled around on the floor. They did not use any physical force or put psychological pressure on [the applicant]. Nor did the latter allege such treatment.
According to the medical documentation obtained from municipal hospital no. 10, on 10 October 2011 a neurosurgeon examined [the applicant]. He did not detect any injuries or diseases.
According to the statement made by neurosurgeon Mor., on 10 October 2011 he examined [the applicant] who was taken to hospital by police officers. [The applicant] did not have any injuries. Nor did he detect any disease. [The applicant] did not complain about his health or police officers. ...
...
According to the statement of the emergency response doctor Yer., in the evening on 10 October 2011 an emergency response team arrived to municipal hospital no. 10. He examined [the applicant]. ... According to the police officer present, [the applicant] behaved in a strange way and they had to take him to hospital. [The applicant] said that he had no memory of the crime. He did not complain about the police officers.
...
According to report no. 4925.11 dated 24 November 2011, regard being had to the placement and nature of the bodily injuries documented during the forensic examination [the applicant] underwent, it is possible that [applicant] sustained the injuries when he hit himself against the solid protruding objects in the circumstances described by [the police officers] ... . [The injuries] were self-inflicted by [the applicant].
The inquiry further established that from about 1-2 p.m. on 10 October 2011 to 7:45 a.m. on 11 October 2011 ... [the applicant] stayed at the police station voluntarily. When questioned, [the applicant] did not deny that he had not been kept at the police station against his will. Accordingly, there is no evidence of his abduction or unlawful deprivation of liberty.”
12.  On 23 July and 30 August 2012 the Leninskiy District Court of Voronezh and the Voronezh Regional Court respectively upheld the decision of 28 November 2011.
Section 1.02	B.  Criminal proceedings against the applicant
13.  On 11 October 2011 the applicant was charged with two counts of murder. It appears that he remained in custody pending investigation and trial.
14.  On 28 June 2012 the Voronezh Regional Court found that the applicant had committed the murders and in a state of insanity and ordered his confinement in a psychiatric institution.
15.  On 6 September 2012 the Supreme Court of the Russian Federation upheld the judgment of 28 June 2012 on appeal.
THE LAW
Article II.	I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
16.  The applicant complained that on 10 October 2011 he had been subjected to ill-treatment in police custody and that the ensuing investigation had not been effective. He relied on Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
17.  Relying on the findings of the domestic inquiry which established that the injuries the applicant had sustained had been self-inflicted, the Government denied the applicant’s allegations of ill-treatment. They also submitted that the applicant could have sustained injuries as a result of a fight with S. prior to his arrest.
18.  The applicant maintained his complaint.
Section 2.01	A.  Admissibility
19.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
Section 2.02	B.  Merits
(a)	1.  Alleged ill-treatment
20.  The general principles concerning the examination of the allegations of ill-treatment of persons within the State’s control in custody are well‑established in the Court’s case law and have been recently re‑stated in the case of Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-88, ECHR 2015).
21.  Turning to the circumstances of the present case, the Court observes firstly that the applicant’s allegations that he was subjected to electrocution and that he remained handcuffed during the night without any food or water (see paragraph 7 above) are not supported by any evidence submitted by the parties. In such circumstances, the Court finds it impossible to establish “beyond reasonable doubt” whether the applicant’s allegations in this respect were true.
22.  As regards the injuries complained of by the applicant, the Court notes that the medical documents submitted by the parties conclusively demonstrate that the applicant sustained multiple bruises and abrasions to the shoulders and calves (see paragraph 9 above). The parties disagreed, however, as to their time and cause. The applicant asserted that he had been beaten up by the police officers while in custody on 10 October 2011. The Government, on the other hand, suggested that the applicant’s injuries had been self-inflicted. Alternatively, they opined that the applicant could have sustained the injuries prior to his arrest.
23.  As to the Government’s hypothesis that the applicant’s injuries might have pre-dated his arrest, the Court notes that the national authorities failed to subject the applicant to a medical examination immediately after his arrest. Nor did the national authorities considered such a possibility in the course of the inquiry to verify the applicant’s allegations of ill-treatment. The Court therefore, rejects the Government’s assertion and assumes that the applicant was in good health prior to being taken into custody (compare Türkan v. Turkey, no. 33086/04, § 43, 18 September 2008).
24.  Furthermore, the Court cannot subscribe to the findings of the domestic inquiry the Government relied upon that the applicant’s injuries were self-inflicted. In particular, the Court notes that the Government’s assertion is not supported by any medical evidence. The forensic expert who examined the applicant on 11 October 2011 did not consider his injuries to be self-inflicted (see paragraph 9 above). The Court also notes that the police officers questioned in relation to the applicant’s injuries provided a differing account of the events as regards the time the applicant had allegedly hurt himself. Some of them claimed that he had sustained those injuries on 10 October 2011 (the day of his arrest), while the others submitted that he had engaged in self-harming behaviour on 11 October 2011 (see paragraph 11 above). Nor did the forensic expert establish with sufficient precision the time of the applicant’s injuries noting that they could have been inflicted “not a long time before the examination” (see paragraph 9 above).
25.  The above findings are sufficient for the Court (1) to conclude that the Government failed to provide a satisfactory and convincing explanation as to the cause of the applicant’s injuries and (2) to make a presumption in favour of the latter’s allegations that he was beaten up by the police officers. The fact that the applicant was detained by the police as an accused in the absence of any official record of his arrest and detention (see paragraphs 36‑39 below) also weighs in favour of the applicant’s account of the events.
26.  The Court further considers that the number and location of the injuries the applicant sustained indicate that the beatings the policemen had subjected him to were sufficiently serious, of a nature amounting to inhuman treatment prohibited by Article 3 of the Convention.
27.  Regard being had to the above, the Court concludes that there has been a violation of Article 3 of the Convention under its substantive limb.
(b)	2.  Adequacy of investigation
28.  The Court observes that, in response to the applicant’s allegations that his injuries were the result of ill-treatment in police custody, the domestic authorities conducted a pre-investigative inquiry, which is an initial stage in dealing with a criminal complaint under Russian law, which should normally be followed by the opening of a criminal case and an investigation if the information has disclosed elements of a criminal offence (see Lyapin v. Russia, no. 46956/09, §§ 129 and 132-36, 24 July 2014). In Lyapin, the Court held that a conduct of a pre-investigation inquiry is insufficient and the authorities’ refusal to institute a fully-fledged criminal investigation into the credible allegations of ill-treatment was indicative of the State’s failure to comply with its procedural obligation under Article 3 of the Convention.
29.  The Court has no reason to hold otherwise in the present case, which involves credible allegations of ill-treatment of which the authorities were promptly made aware. It finds that the authorities have failed to carry out an effective investigation into the applicant’s allegations of ill-treatment in police custody, as required by Article 3 of the Convention. There has been a violation of Article 3 of the Convention under its procedural limb.
Article III.	II.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
30.  The applicant complained that his detention at the police station on 10 October 2011 had been in contravention of Article 5 of the Convention, which, in so far as relevant, 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:
...
(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so[.]”
31.  The Government conceded that the applicant’s detention on 10 October 2011 had not been duly processed. However, the applicant’s complaint should be dismissed for his failure to institute civil proceedings against the police officers who had arrested him on 10 October 2011.
32.  The applicant maintained his complaint.
Section 3.01	A.  Admissibility
33.  As to the Government’s objection that the applicant failed to exhaust domestic remedies in respect of his complaint, the Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness (see Aksoy v. Turkey, 18 December 1996, §§ 51-52, Reports 1996-VI, and Akdivar and Others v. Turkey, 16 September 1996, §§ 65-67, Reports 1996‑IV).
34.  The Court notes that the applicant complained to the authorities that his detention on 10 October 2011 had been unlawful. The investigator dismissed the applicant’s allegations stating that the latter had voluntarily stayed at the police station (see paragraph 11 above). The courts at two levels of jurisdiction upheld the investigator’s findings. In such circumstances, the Court is satisfied that the applicant provided the domestic authorities with an opportunity to put right the alleged violation. It discerns no explanation in the Government’s observations as to why the proceedings instituted by the applicant should not be taken into account for the purposes of compliance with the rule of exhaustion of domestic remedies set out in Article 35 § 1 of the Convention. Nor did the Government elaborate why, in the circumstances of the case, it had been incumbent on the applicant to challenge the police officers’ action in civil proceedings.
35.  Having regard to the above, the Court dismisses the Government’s objection as to the non-exhaustion of domestic remedies by the applicant. The Court further notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.
Section 3.02	B.  Merits
36.  The Court reiterates that Article 5 § 1 of the Convention requires in the first place that the detention be “lawful”, which includes the condition of compliance with a procedure prescribed by law. The Convention here essentially refers back to national law and states the obligation to conform to the substantive and procedural rules thereof, but it requires in addition that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect individuals from arbitrariness. A period of detention will in principle be lawful if it is carried out pursuant to a court order (see Benham v. the United Kingdom, 10 June 1996, §§ 40 and 42, Reports of Judgments and Decisions 1996‑III).
37.  Turning to the circumstances of the present case, the Court observes that it is not disputed by the Government that from 10 to 11 October 2011 the applicant was “deprived of his liberty” within the meaning of Article 5 § 1 of the Convention in the absence of any arrest or detention record.
38.  In this connection the Court observes that the absence of an arrest/detention record must in itself be considered a most serious failing, as it has been the Court’s constant view that unrecorded detention of an individual is a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention and discloses a most grave violation of that provision. The absence of a record of such matters as the date, time and location of detention, the name of the detainee, the reasons for the detention and the name of the person effecting it must be seen as incompatible with the requirement of lawfulness and with the very purpose of Article 5 of the Convention (see Fedotov v. Russia, no. 5140/02, § 78, 25 October 2005; Menesheva v. Russia, no. 59261/00, § 87, ECHR 2006; and Kurt v. Turkey, 25 May 1998, § 125, Reports of Judgments and Decisions 1998‑III).
39.  The lack of a proper record of the applicant’s arrest and detention from 10 to 11 October 2011 is therefore sufficient for the Court to find that the relevant period of the applicant’s detention was in breach of domestic law and contrary to the requirements implicit in Article 5 of the Convention for the proper recording of deprivations of liberty (see Anguelova v. Bulgaria, no. 38361/97, § 157, ECHR 2002-IV, and Menesheva, cited above, §§ 87‑89). There has therefore been a violation of Article 5 § 1 of the Convention.
Article IV.	III.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
40.  The applicant complained that he had not had an effective remedy in respect of his complaint about ill-treatment in police custody. He relied on Article 13 of the Convention, which provides:
“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.”
41.  The Court observes that this complaint concerns the same issues as those examined above under the procedural limb of Article 3 of the Convention and should therefore be declared admissible. However, in the light of its conclusions above under Article 3, the Court considers it unnecessary to examine those issues separately under Article 13 of the Convention.
Article V.	IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
42.  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
43.  The applicant claimed 1,000 euros (EUR) and EUR 100,000 in respect of pecuniary and non-pecuniary damage respectively.
44.  The Government considered the applicant’s claims excessive and unsubstantiated.
45.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 26,000 in respect of non‑pecuniary damage.
Section 5.02	B.  Costs and expenses
46.  The applicant also claimed EUR 16, 921 for the costs and expenses incurred before the domestic courts and the Court.
47.  The Government considered that the applicant’s claims should be dismissed in full as unsubstantiated and unnecessary.
48.  Regard being had to the documents in its possession and to its case‑law, the Court rejects the applicant’s claim for costs and expenses.
Section 5.03	C.  Default interest
49.  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 complaints concerning the alleged ill-treatment in police custody, ineffectiveness of the ensuing investigation and allegedly unlawful detention admissible;

2.  Holds that there has been a violation of Article 3 of the Convention under its substantive and procedural limbs;

3.  Holds that there has been a violation of Article 5 § 1 (c) of the Convention;

4.  Holds that there is no need to examine the complaint under Article 13 of the Convention;

5.  Holds
(a)  that the respondent State is to pay the applicant, within three months, EUR 26,000 (twenty-six 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 3 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Branko Lubarda
	Deputy Registrar	President