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URL: http://www.bailii.org/eu/cases/ECHR/2018/542.html
Cite as: ECLI:CE:ECHR:2018:0626JUD001745913, [2018] ECHR 542, CE:ECHR:2018:0626JUD001745913

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THIRD SECTION

CASE OF KRYUTCHENKO v. RUSSIA

(Application no. 17459/13)

JUDGMENT

STRASBOURG

26 June 2018

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

In the case of Kryutchenko v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

Alena Poláčková, President,
Dmitry Dedov,
Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 5 June 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 17459/13) 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 Nikolay Ivanovich Kryutchenko ("the applicant"), on 26 January 2013.

2. The applicant was represented by Mr S.I. Kiryukhin, a lawyer practising in Orsk. The Russian Government ("the Government") were represented initially by Mr G. Matyushkin, former 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 19 September 2016 the complaints concerning the applicant's ill-�treatment in police custody 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

THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1960 and lives in Orsk.

A. The applicant's ill-treatment in police custody

5. On 28 May 2005 the applicant, who was walking home after an evening drinking, was stopped on the street by police officers from the patrol and inspection service and driven to the Sovetskiy district police station of Orsk (Советское РОВД г. Орска). He attempted to run away, but was stopped and assaulted by the police officers, who kicked him in the stomach. He felt unwell and lost consciousness. The police officers placed him in a cell and did not react when he demanded that they call an ambulance.

6. The applicant was released the next morning. On the evening of 29 May 2005 he was admitted to hospital with internal bleeding. He spent six weeks in hospital.

7. According to forensic medical expert report no. 3634 of 25 July 2005, the applicant had blunt abdominal trauma with a ruptured intestine, which had provoked the development of serofibrinous peritonitis. This injury had been caused by impact with a hard, blunt object, possibly one to two days before the applicant's hospitalisation, and had caused him "serious health damage". The applicant also had abrasions on his back and forearms, and circular abrasions on his wrist joints, which had originated from impact with hard, blunt objects during the same period, and had not caused him any "health damage".

8. Forensic medical expert report no. 5684 of 14 December 2011 contained similar information concerning the applicant's injuries. The expert considered that the injuries had been caused several hours to several days before the applicant's hospitalisation. The expert excluded the possibility that they had been caused as a result of him falling over.

B. Criminal proceedings concerning the applicant's alleged ill-�treatment

9. On 29 May 2005 the Orsk police received information about the applicant's hospitalisation in Town Hospital no. 2 with blunt abdominal trauma and abrasions on his body.

10. On 14 June 2005 an investigator from the Orsk Sovetskiy district prosecutor's office opened a criminal case under Article 111 § 3 of the Criminal Code (physical assault causing "serious health damage").

11. On 11 July 2005 the applicant was granted victim status and questioned.

12. On 14 October 2005 the preliminary investigation into the criminal case was suspended under Article 208 § 1 (1) of the Code of Criminal Procedure, owing to the inability to identify the individuals to be charged.

13. On 31 January and 25 April 2012 the preliminary investigation into the criminal case was restarted, in view of the need to take additional investigative measures.

14. On 1 March and 18 July 2012 the preliminary investigation into the criminal case was suspended again, on the same grounds as before.

C. Civil claim and compensation

15. In 2012 the applicant brought a civil claim against various State authorities, including the Russian Ministry of Finance, seeking 6,000,000 Russian roubles (RUB) in compensation for his ill-�treatment at the police station and the lack of an effective investigation into his complaint.

16. On 24 July 2012 the Leninskiy District Court of Orsk allowed the applicant's claim in part and awarded him RUB 150,000 (the equivalent of about 3,800 euros) in compensation. It established that the applicant had been taken into police custody in good health and that his injuries had been caused at the police station, since the State authorities had failed to provide a plausible explanation for the injuries or any evidence showing that he could have sustained them elsewhere.

17. On 9 October 2012 the Orenburg Regional Court upheld the judgment on appeal.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

18. The applicant complained that he had been subjected to ill-treatment in police custody, that the ensuing investigation had not been prompt and thorough, and that the amount of compensation awarded to him by the domestic courts had been inadequate. 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."

19. The Government acknowledged a violation of the applicant's rights guaranteed by Article 3.

A. Admissibility

20. The question of whether the applicant may still claim to be a victim of a violation of Article 3 of the Convention in respect of his alleged ill-�treatment is closely linked to the merits of his complaints under that provision. The Court therefore decides to join this matter to the merits.

21. 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.

B. Merits

22. Having regard to the facts established in the judgment of the Leninskiy District Court of Orsk of 24 July 2012 (as upheld by the Orenburg Regional Court on 9 October 2012), the Court finds that the ill-�treatment suffered by the applicant at the hands of the police amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention (see Gäfgen v. Germany [GC], no. 22978/05, § 89, ECHR 2010).

23. It further finds that the delay in opening the criminal case and commencing a full criminal investigation into the applicant's credible assertions of serious ill-�treatment at the hands of the police disclosing elements of a criminal offence, as well as the way the investigation was conducted thereafter, show that the authorities did not take all reasonable steps available to them to secure the evidence and did not make a serious attempt to find out what had happened. They thus failed in their obligation to conduct an effective investigation into the applicant's ill-�treatment in police custody (see Razzakov v. Russia, no. 57519/09, § 64, 5 February 2015).

24. The Court finds that in the absence of an effective investigation, the applicant can still claim to be a victim of a violation of Article 3 in respect of his alleged ill-�treatment (see Razzakov, cited above, § 51).

25. The Court further finds that there has been a violation of Article 3 of the Convention under its substantive limb in that the applicant has been subjected to inhuman and degrading treatment. There has also been a violation of Article 3 of the Convention under its procedural limb on account of the lack of an effective investigation into his inhuman and degrading treatment by the police.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

26. The applicant also complained that the domestic criminal and civil remedies had not been effective. He relied on Article 13 of the Convention which reads as follows:

"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

27. The Government acknowledged a violation of Article 13.

A. Admissibility

28. The Court has found that the respondent State is responsible under Article 3 of the Convention for the inhuman and degrading treatment suffered by the applicant at the hands of the police. The applicant's complaints in this regard are therefore "arguable" for the purposes of Article 13 in connection with Article 3 of the Convention.

29. 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.

B. Merits

30. In so far as the applicant complained that he did not have an effective criminal-law remedy in respect of his allegations of ill-treatment by the police, the Court notes that this part of the complaint does not raise any separate issue from that examined under the procedural limb of Article 3 and considers that there is no need to examine it separately under Article 13.

31. In so far as the applicant complained that he did not have an effective civil-law remedy in respect of the same allegations, the Court notes that Russian law enabled the applicant to lodge a civil claim for compensation for the non-pecuniary damage sustained as a result of the ill-�treatment. The fact that his claim was only partially allowed is not in itself sufficient to render the remedy ineffective within the meaning of Article 13. The Court finds that it has not been shown that the civil-law remedy was ineffective (see Shestopalov v. Russia, no. 46248/07, §§ 72-74, 28 March 2017).

32. Accordingly, there has been no violation of Article 13 of the Convention as regards the civil proceedings.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

33. Article 41 of the Convention provides:

"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."

A. Damage

34. The applicant claimed 25,000 euros (EUR) in respect of non-�pecuniary damage.

35. The Government considered that claim excessive.

36. Making its assessment on an equitable basis, and taking into account the amount awarded to the applicant by the domestic courts, the Court awards the applicant the amount claimed in respect of non-�pecuniary damage, plus any tax that may be chargeable on that amount.

B. Default interest

37. 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 to the merits the question whether the applicant may still claim to be a victim of a violation of Article 3 of the Convention;

2. Declares the application admissible;

3. Holds that the applicant may still claim to be a victim of a violation of Article 3 of the Convention for the purposes of Article 34 of the Convention;

4. Holds that there has been a violation of Article 3 of the Convention under its substantive limb in that the applicant has been subjected to inhuman and degrading treatment;

5. Holds that there has been a violation of Article 3 of the Convention under its procedural limb on account of the lack of an effective investigation into the applicant's inhuman and degrading treatment by the police;

6. Holds that there is no need to examine separately the complaint under Article 13 of the Convention as regards the criminal-�law remedy;

7. Holds that there has been no violation of Article 13 of the Convention as regards the civil proceedings;

8. Holds

(a) that the respondent State is to pay the applicant, within three months EUR 25,000 (twenty-five 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; and

(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 26 June 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıAlena Poláčková
Deputy RegistrarPresident