THIRD SECTION
CASE OF KALASHNIKOV v. RUSSIA
(Application no. 2304/06)
JUDGMENT
STRASBOURG
3 December 2019
This judgment is final but it may be subject to editorial revision.
In the case of Kalashnikov v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Alena Poláčková, President,
Dmitry Dedov,
Gilberto Felici, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 12 November 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 2304/06) 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 Ilya Valeryevich Kalashnikov (“the applicant”), on 5 December 2005.
2. The applicant was represented by Mr E. Markov, a lawyer practicing in Budapest. 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 6 May 2013 notice of the application was given to the Government.
THE FACTS
4. The applicant was born in 1978 and is serving a sentence in a prison in Kamensk‑Uralskiy.
I. THE CIRCUMSTANCES OF THE CASE
A. The applicant’s arrest
5. In 2003 the police of the Sverdlovsk region were investigating a gang operating in Serov. They made four arrests, one of which was of the applicant. In interviews on 10 and 12 February 2003 the applicant incriminated two of his accomplices as ringleaders and was released on his own recognisance.
6. Soon thereafter, the police found out that the applicant was preparing to flee. On 8 May 2003 they re-detained him, charged him with robbery and interviewed him as the accused. The applicant confessed to the robbery and once again incriminated his accomplices. Later the same day a court ordered pretrial custody and he was placed into the temporary-detention ward at Serov railway station (ИВС ЛОВД на станции Серов).
B. Events at Serov railway station
7. The parties disagree about what happened at the station.
8. According to the applicant, during his stay there he was interviewed daily. The investigators urged him to confess and to testify under the threat of violence and transfer to another prison for “processing” (на «разработку»). The applicant rejected these demands.
9. According to the authorities, the applicant was afraid of reprisals from the accomplices whom he had denounced. To avoid the dangerous encounters, the applicant asked to be placed in Remand Centre 1 of Yekaterinburg (СИЗО № 1 г. Екатеринбурга). Instead, the police decided to place him in Novaya Lyalya prison (ИК № 54 г. Новая Ляля) because at that time all other suitable detention facilities were housing his co‑defendants.
C. Transfer to Novaya Lyalya prison
10. On 16 May 2003 the applicant was escorted to Novaya Lyalya. He was accommodated in a punishment cell for high-security convicts (ШИЗО ПКТ), which at that time was functioning as a pretrial-detention facility (ПФРСИ).
D. Events in Novaya Lyalya prison
11. The parties disagree about what happened in that prison.
12. According to the applicant, he shared his cell with two convicts, both police collaborators, who mistreated him at the behest of the administration to coerce a false confession.
13. Warders mistreated the applicant too. Thus, on 21 or 22 May 2003, two officers (one in plain clothes, the other in camouflage) walked him out for interrogation, put his hands against the wall and several times hit him on the buttocks with a rubber truncheon and a wooden stick. They made the applicant strip to his underwear, and one officer punched the applicant in the lower back. Then they turned him around, and one officer punched him in the stomach and slapped him several times on the right eye leaving it black.
14. The mistreatment was repeated daily. The officers would handcuff the applicant, squeeze his fingernails with pliers, insert needles under his fingernails, kick him in the groin, verbally abuse him and threaten him with sodomy. On return to his cell, the applicant, still undressed and handcuffed, had to face violent cellmates.
15. The assailants wanted the applicant to extend his confession to other and more serious crimes and to identify the two accomplices as ringleaders. The applicant gave in to the pressure and, according to one source, wrote a dictated confession, or, according to another source, signed a pre-written confession without reading it.
16. According to the authorities, throughout his time in Novaya Lyalya the applicant had a cell to himself because he had to be isolated from convicts for his own safety. He was never interviewed or mistreated. The warders’ contact with him was limited to small talk during daily rounds. The applicant never sought medical aid.
E. Return to Serov
17. On 4 June 2003 the applicant was transferred to the Serov town temporary-detention ward (ИВС г. Серова). No injuries were recorded on his admission. The applicant made no remarks or complaints about the alleged mistreatment in Novaya Lyalya. He was still afraid that one particular ringleader might kill him and told the police that he would revoke his incriminating testimony should he ever meet that man. On the same day the applicant confessed to more crimes.
F. Discovery of injuries
18. Later the same month, investigator M. of the Serov town prosecutor’s office interviewed the applicant. The applicant complained about the mistreatment. M. decided to have the applicant forensically examined.
19. On 11 June 2003 the doctor discovered five long bruises left by a truncheon or stick on the applicant’s buttocks no more than four weeks earlier. M. sent the report to the Nizhniy Tagil prosecutor’s office overseeing penitentiaries. The applicant also made a formal complaint to the public prosecutor.
G. Prosecutorial investigation into alleged mistreatment
20. The prosecutorial investigation into the alleged mistreatment lasted until May 2005. It was conducted by the Serov town office and the Nizhniy Tagil office for penitentiaries. In total, four investigators refused to institute criminal proceedings seven times for lack of evidence of a crime. To reach that conclusion, they had interviewed the applicant, investigator M., the alleged perpetrators (both cellmates and warders), and witnesses (the officers who had detained the applicant and sent him to Novaya Lyalya, a paramedic from the station custody suite, the governor, warders, a paramedic, and inmates from Novaya Lyalya, and a paramedic and cellmates from the town custody suite). In addition, the investigators studied documents (prison complaints books, cell accommodation records, use‑of‑force reports, and medical files).
21. In the last refusal to prosecute, of 3 May 2005, the investigator pointed out incongruities in the applicant’s story: the applicant had been changing the date of his encounter with the warders, the overall duration and kind of mistreatment, the number of violent cellmates, and the nature of his injuries. The investigator also considered that the forensic report of 11 June 2003 did not prove the alleged mistreatment.
22. On 1 February 2006 the Tagilstroyevskiy District Court of Nizhniy Tagil refused judicial review of that decision. On 16 June 2006 the Sverdlovsk Regional Court upheld that ruling.
H. The applicant’s trial
23. During his trial, from February to June 2004, the applicant pleaded not guilty to certain charges and claimed that his confessions had been coerced. To investigate that claim, the Sverdlovsk Regional Court interviewed the officers who had detained the applicant, his warders, and the forensic doctor who had discovered the injuries.
24. On 9 June 2004 the court dismissed the claim as a defence tactic, found the applicant guilty of theft, robbery, armed robbery and belonging to a gang, and sentenced him to 22.5 years’ imprisonment.
25. On 6 June 2005 the Supreme Court commuted the sentence to 21 years in view of the applicant’s confession and aid in incriminating the accomplices.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF MISTREATMENT
26. The applicant complained under Article 3 of the Convention that during his stay in Novaya Lyalya prison cellmates and warders had abused him into making a false confession. This Article reads:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Admissibility
27. The Government argued that the complaint was manifestly ill‑founded. The applicant maintained his complaint.
28. 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.
B. Merits
29. Referring to the official version of the events, the Government denied the applicant’s allegations.
30. The applicant maintained his narrative and invited the Court to draw negative inferences from the authorities’ failure to account for his injuries.
31. The Court repeats that breaches of Article 3 must be proven “beyond reasonable doubt” (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25). No such proof has been presented to the Court. The applicant’s description of the cellmate violence and torture by the warders (see §§ 12 and 14 above) is vague. His description of the beating (§ 13) is more specific but nevertheless self-contradictory about the date of the incident. Also self‑contradictory is his description of how his confession was recorded (§ 15). But even a detailed and consistent report is not a guarantee of veracity because “a person with a vivid imagination, good memory and logical skills may invent an almost perfect story” (see Buntov v. Russia, no. 27026/10, § 153, 5 June 2012).
32. Yet the fact remains that five bruises had appeared on the applicant’s buttocks while he was in detention (§ 19). The Convention requires the State to convincingly explain injuries received by those in its custody, failing which the Court will presume ill-treatment (see Mehmet Emin Yüksel v. Turkey, no. 40154/98, §§ 25, 30, 20 July 2004). The Government have not explained the origin of the bruises and, as the forensic doctor has found, they may have been caused by his having been beaten.
33. In these circumstances, the Court concludes that the applicant was subjected to inhuman treatment when in custody. There has, accordingly, been a violation of Article 3 of the Convention on this account.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE INEFFECTIVE INVESTIGATION
34. The applicant complained under Article 3 of the Convention that the investigation into his mistreatment had been ineffective.
A. Admissibility
35. The Government argued that the complaint was manifestly ill‑founded. The applicant maintained his complaint.
36. 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.
B. Merits
37. The Government argued that the investigation had been effective. Though it had lasted one year and a half, the prosecutors had quickly responded to the original complaint and had allowed no delays later on. The Nizhniy Tagil prosecutor’s office had been independent from the suspects. The regional prosecutor’s office had made serious attempts to to elicit the truth in that it had heeded the applicant’s complaints and three times overturned subordinates’ decisions. Nevertheless, admitted the Government, the applicant’s bruises had not been satisfactorily explained.
38. The applicant submitted that it had taken the authorities five months to issue the first – and thus the most crucial – substantive decision. The investigation had not been independent because of institutional solidarity between the prosecutor’s offices and the police. The investigators had assessed the evidence unreasonably and reached biased conclusions. The multiple re-openings proved that their decisions had been superficial. In general, a pre-investigation inquiry, such as the one held in his case, could not be qualified as effective because of the limited procedural tools available to the investigator and the victim in that proceeding. Lastly, after the Court had communicated the application to the Government, the authorities had pressed the applicant to withdraw his application.
39. The Court reiterates that an investigation is “effective” if independent, adequate, thorough, objective, impartial, open, and prompt (see Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 240, 30 March 2016).
40. The investigation in the present case cannot be so described. Despite the investigators’ activity, their decisions were many times overturned as superficial by their hierarchical superiors (compare with Korogodina v. Russia, no. 33512/04, § 58, 30 September 2010). And, as the parties agree, the applicant’s injuries have remained unexplained (compare with Gladyshev v. Russia, no. 2807/04, § 64, 30 July 2009). Furthermore, as the applicant points out, a pre-investigation inquiry such as the one held in his present case cannot in general be qualified as an effective investigation (see Lyapin v. Russia, no. 46956/09, § 134–135, 24 July 2014). There is no reason to conclude otherwise in the present case.
41. There has, accordingly, been a violation of Article 3 of the Convention on this account too.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
42. The applicant also mentioned Articles 5 and 6 of the Convention without formulating complaints. The Court of its own motion has examined the question under Article 6 § 1 whether the allegedly coerced evidence had rendered the trial unfair. That Article reads:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
43. The Government argued that this complaint was manifestly ill‑founded. The trial court had rejected the allegation of mistreatment. The applicant had started testifying in February 2003, which was before the alleged mistreatment. He had testified only to the investigators and only in the presence of counsel. Throughout the proceedings, the applicant had been free to change or supplement his testimony.
44. The applicant maintained his complaint saying that the court had rejected the allegation of mistreatment in the face of clear medical evidence and then had unlawfully used the coerced confessions against him.
45. The Court repeats that evidence obtained from the defendant by torture, inhuman or degrading treatment may render his trial unfair, but only if it had an impact on his conviction or sentence (see Gäfgen v. Germany [GC], no. 22978/05, § 178, ECHR 2010). In the present case, there is no objective evidence of any confession having been obtained from the applicant in Novaya Lyalya.
46. Accordingly, this part of the application is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
47. 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
48. The applicant claimed 20,000 euros (EUR) in respect of non‑pecuniary damage.
49. The Government considered that a mere finding of a violation would suffice.
50. The Court awards the applicant EUR 20,000 in respect of non‑pecuniary damage.
B. Costs and expenses
51. The applicant also claimed EUR 500 for the costs and expenses incurred before the domestic courts and EUR 3,950 for those incurred before the Court.
52. The Government objected to that claim because the applicant had not proven his costs.
53. The Court repeats that it awards costs and expenses only if they were actually incurred (see The Sunday Times v. the United Kingdom (no. 1) (Article 50), 6 November 1980, § 23, Series A no. 38). This does not seem to be the case. The applicant has not proven his domestic costs, and, under his arrangement with his representative, the costs for the proceedings before the Court were to be paid by the State. Accordingly, the Court rejects this claim.
C. Default interest
54. 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 ill-treatment and its ineffective investigation admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 3 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicant, within three months, EUR 20,000 (twenty thousand euros) 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;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 3 December 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Alena
Poláčková
Registrar President