European Court of Human Rights

 

 

 

THIRD SECTION

 

 

 

CASE OF X AND Y v. RUSSIA

(Application no. 43411/06)

 

 

 

 

 

JUDGMENT

 

 

 

 

 

STRASBOURG

22 September 2020

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

In the case of X and Y 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 Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 43411/06) 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 two Russian nationals, Mr X (“the first applicant”) and his mother Ms Y (“the second applicant”), on 18 October 2006;

the decision to give notice to the Russian Government (“the Government”) of the complaints concerning the first applicant’s unlawful detention, his ill-treatment and the lack at his disposal of effective domestic remedies to complaint about those grievances;

the decision not to have the applicants’ names disclosed;

the parties’ observations;

Having deliberated in private on 1 September 2020,

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

INTRODUCTION

1.  The case concerns the first applicant’s complaints in respect of his unrecorded detention and subsequent ill-treatment at the hands of the police and the lack of an effective investigation in respect of those matters.

THE FACTS

2.  The first and the second applicants were born in 1981 and 1955 respectively. They were represented by lawyers of the Stichting Russian Justice Initiative NGO in partnership with Astreya (SRJI/Astreya), a non‑governmental organisation.

3.  The Government were initially represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.

I.  Background

5.  At the relevant time the first applicant lived in the Kolos settlement in the town of Karabulak, Ingushetia. The second applicant lived in the town of Grozny. The first applicant made regular trips to Grozny to visit his mother and attend lectures and take exams at the Chechen State University.

6.  According to medical documents, the first applicant was in good health and did not have any complaints in that regard. Nor did he seek medical assistance in the period from the year 2003 to 26 May 2004.

II. The first applicant’s arrest and alleged ill‑treatment

A.    The Government’s version of the events

7.  The Government submitted that at 5.30 p.m. on 27 May 2004 police officers arrested the first applicant on suspicion of his having committed a criminal offence. Then the first applicant was taken to the Leninskiy district police station in the town of Grozny (Ленинский РОВД - hereinafter “the Leninskiy ROVD”) and questioned. During questioning the police officers did not put any pressure on him. The Government relied on the first applicant’s arrest record dated 27 May 2004, which had been signed by the attesting witnesses P. and D., by the first applicant and his counsel, and on the first applicant’s interview record prepared on the same day and containing no complaints of police ill-treatment.

B.     The applicants’ version of the events

8.  At 4 a.m. on 26 May 2004, when the first applicant was asleep in the second applicant’s house in Grozny, a group of armed men in balaclavas burst into the house. They pushed him to the floor and beat him. Then the men put a black plastic bag over the first applicant’s head and drove him to the Leninskiy ROVD. On the way there the perpetrators questioned the first applicant and kicked him if his answers did not satisfy them.

9.  At the Leninskiy ROVD the first applicant realised that the perpetrators of his abduction were police officers. Following his arrival they took him to an office and handcuffed him to a chair. Then several officers in camouflaged uniforms, including officers R.Kh and I.A. beat him with rubber truncheons on the soles of his feet, suffocated him with the plastic bag and gave him electric shocks through wires attached to different parts of his body, including his anus, until he lost consciousness.

10.  During the ill-treatment the officers ordered the first applicant to confess to a number of crimes. When he refused, the torture continued.

11.  When the police officers left the office, Investigator D. came in and pushed the first applicant to the wall. The investigator said that the first applicant had been involved in several offences and had to assist the investigation. The first applicant replied that the officers had arrested the wrong person, since he knew nothing either about the offences to which Investigator D. was referring to or about the people involved in them. Investigator D. said that the first applicant would be sorry for the refusal to cooperate and left.

12.  Then police officers returned to the room and continued beating and insulting the first applicant. The officers pulled down his pants, put a truncheon near his anus and threatened to thrust it inside. They also took photos and videos of the first applicant in this position and threatened to distribute them among his neighbours. They also threatened to rape him.

13.  At some point the first applicant gave up and wrote his “confession” and a number of other documents dictated by the officers and signed them. It did not stop the beatings. The officers wanted the first applicant to memorise the details of each offence he had “confessed” to. For every mistake in recounting he was beaten. The ill-treatment continued until late at night when suddenly there was a blackout across the entire city of Grozny. The officers then handcuffed the first applicant and left him in the room with a plastic bag over his head.

14.  In the morning of 27 May 2004 the officers returned to the room. One of them pushed the first applicant’s face against the wall, aimed a rifle at his back and threatened to execute him if he refused to do what they told him. Then they showed him photos of several people. When the first applicant said that he did not know anybody in the photos, the officer hit him on the head and kicked him in the scrotum. Later the first applicant was taken downstairs to the holding cells (ИВС).

15.  The first applicant’s ill-treatment continued for several days. On one of those days he had heart pains and the police officers called an ambulance. The doctor provided the first applicant with medical aid. According to him, their visit was not registered. On another day (apparently on 29 May 2004), the first applicant was taken from the holding cells to an office upstairs, where the police officers beat him to force him to decline the services of R.D., the counsel hired by the second applicant. The first applicant was presented with another lawyer, G.B., who was present in the office, and told that he would be his counsel from then on. The first applicant refused his assistance and insisted that his counsel was R.D. Then both Investigator D. and G.B. ordered the first applicant to confess, threatening him with transfer to operational-search bureau no. 2 (“ORB-2”), where he would be tortured.

16.  Subsequently Investigator D. and G.B. left the office and the police officers continued beating the first applicant while he was handcuffed to a chair. They beat him on the head and damaged his right ear. When the first applicant fell off the chair during his beating, the police officers started kicking him. After that he was taken back to the holding cells and in the evening transferred to ORB-2.

17.  The first applicant was held in ORB-2 for eighteen days following his transfer there on 29 May 2004.

18.  On 30 May 2004 the first applicant was taken to a room where another handcuffed detainee (M.V.) with visible marks of torture on him was sitting on a chair. The police asked him to identify the detainee as his accomplice. When he refused, the police officers beat both of them. Apparently those officers were from the Leninskiy ROVD, as the first applicant recognised their voices. He also heard screams of detainees being tortured in the adjacent room. All this led to the first applicant having a nervous breakdown.

19.  On 14 July 2004 the second applicant was allowed to visit the first applicant. According to her, she could not recognise her son since his entire body was covered with bruises and haematomata. The first applicant told her that they had brutally beat him on the instructions of Investigator D.

20.  After eighteen days’ detention in ORB-2 the first applicant was transferred back to the holding cells. On the day of his return the first applicant was threatened that his mother would be killed if he refused to identify his accomplice. Later the first applicant was shown M.V., the detainee from ORB-2. The first applicant was supposed to identify him as his accomplice. Under undue pressure from Investigator D., the first applicant said that the detainee was his accomplice. After Investigator D. had left the room the policemen started to insult and humiliate the first applicant and hit him on the head.

21.  In September 2004 the first applicant was transferred to remand prison no. 20/1 in Grozny.

III. Criminal proceedings against the first applicant

22.  On 29 May 2004, following an application by the investigator, the Leninskiy District Court authorised the first applicant’s detention pending investigation. It appears that at the hearing the first applicant’s counsel noticed bodily injuries on his client and then asked Investigator D. to explain their origin (see paragraph 33 below). The first applicant remained in custody pending investigation and trial.

23.  On 23 June 2004 the first applicant was charged with participation in an unlawful armed group.

24.  On 22 November 2004 the bill of indictment was drawn up in respect of the first applicant and M.V. The first applicant was charged with participating in an illegal armed group comprised of several persons including M.V. and with committing terrorist attacks in Chechnya.

25.  On 30 March 2005 the Supreme Court of Chechnya acquitted the first applicant and M.V. and ordered the first applicant’s immediate release from detention.

26.  The court found that the first applicant’s questioning on 27 and 28 May 2004 had been conducted in breach of procedural guarantees and declared the respective reports inadmissible evidence. It further noted that the first applicant’s medical examination had revealed numerous injuries on him and that during the court hearing the first applicant and M.V. had identified officers R.Kh and I.A. involved in their ill-treatment. The court stated that investigating authorities had abetted those officers by accepting the information obtained from the first applicant in violation of procedural rules. Comparing various documents from the case file, the court concluded that the first applicant’s arrest record of 27 May 2004 had been forged. That fact was supported by the statement of an attesting witness, D., who said that he had not been present during the arrest. Instead, he had been asked to come to the Leninskiy ROVD, where police officers had made a copy of his passport. The court noted, however that according to an expert examination report, the signature on the arrest record had been made by D. The court further found that the first applicant’s allegations that he had been detained on 26 May 2004 and subjected to physical violence had not been rebutted by the investigator. The fact that the first applicant had sustained bodily injuries after 27 May 2004 had been confirmed by medical documents.

27.  The court further observed that, following an application by the first applicant, the Leninsky district prosecutor’s office had conducted a pre‑investigation inquiry and had refused to institute criminal proceedings in connection with the alleged ill-treatment. The decision had provided no information as to where exactly, at what time, by which officers and in which particular circumstances the first applicant had been arrested.

28.  The court held that the charges against the first applicant were primarily based on his confessions that had been declared inadmissible evidence and which he had refuted during the preliminary investigation, and that no other evidence corroborated his guilt in the offences concerned.

29.  On 14 April 2005 the Prosecutor of Chechnya appealed against the acquittal.

30.  On 1 June 2005 the Supreme Court of Russia set aside the acquittal and remitted the case for a fresh examination on the grounds that the impugned judgment contained conflicting findings.

31.  The first applicant’s counsel lodged an application for supervisory review of the above decision with the Presidium of the Supreme Court of Russia. The court refused to entertain the application on 4 October 2005.

32.  On 1 September 2005 the Supreme Court of Chechnya held the first hearing in the case following its remittal. The first applicant did not appear at the hearing since by that time he had left Russia. The court therefore placed him on a wanted list and ordered that he be remanded in custody when apprehended.

IV. Investigation in respect of the alleged ill‑treatment

33.  On 2 June 2004, after having noticed the first applicant’s bodily injuries (see paragraph 22 above) his counsel R.D. complained to Investigator D. of his client’s unlawful arrest on 26 May 2004, unrecorded detention and ill-treatment at the hands of the police. Shortly thereafter the investigator ordered a forensic expert to examine the first applicant.

34.  On 4 June 2004 the forensic expert examined the first applicant and prepared report no. 521. The copy of the report provided by the applicants is not fully legible. As far as can be seen from the copy, the first applicant told the expert that on 27 May 2004 he had been abducted from his home by armed men and taken to the Leninskiy ROVD, where he had been ill‑treated. It is further stated in the report that, according to the entry in the register of the police holding cells of 28 May 2004, the first applicant had no injuries and made no complaints. Later (the date is illegible) medical aid was required for him in connection with a contusion of the lumbosacral region and an (illegible) injury of the front abdominal wall. The examination conducted on 4 June 2004 revealed numerous bruises and abrasions of the thorax and lower extremities caused by hard blunt objects. The expert stated that they might have been caused at the time and in the circumstances described by the first applicant.

35.  On 4 June 2004 the investigator obtained “explanations” of four police officers from the Leninskiy ROVD (including officers R.Kh and I.A.) concerning the circumstances of the first applicant’s arrest and his questioning. They submitted that the first applicant had been arrested on 27 May 2004 and that no pressure had been put on him during questioning.

36.  On the same day, taking into account the expert report and the submissions by the police officers, Investigator D. refused to open a criminal case into the allegations of unlawful arrest and ill-treatment.

37.  On 2 July 2004 Investigator D. ordered a second forensic examination of the first applicant. The report prepared at his request concluded that the first applicant had four scars on the chest and one the right knee, sustained from between three to six months before. Owing to the time elapsed, it was impossible to determine how they had been inflicted.

38.  Later, on an unspecified date, the Chechnya police opened an internal investigation into the alleged ill-treatment of the first applicant. It appears that during that investigation Investigator D. was questioned. He denied that the first applicant had been ill-treated. On 15 July 2004 the police closed the investigation with the finding that the first applicant’s allegations were ill-founded. A copy of the relevant report was not submitted to the Court.

39.  On various dates including 4 and 11 August, 4 October and 15 November 2004 the applicants complained to the Prosecutor of Chechnya concerning the first applicant’s unlawful arrest and ill-treatment. It appears that the complaints were dismissed for being unsubstantiated.

40.  On 17 February 2006 the second applicant again complained to the Prosecutor of Chechnya of her son’s ill-treatment. In reply the investigating authorities conducted a new pre-investigation inquiry. They questioned Investigator D. and three officers of the Leninskiy ROVD, who unanimously stated that no pressure had been put on the first applicant. On the grounds of those submissions the authorities refused to open a criminal case on 2 March 2006. The second applicant challenged that decision before the Prosecutor of Chechnya, who dismissed the challenge on 7 July 2006.

41.  On an unspecified date the Chechen police at the request of a non‑governmental organisation, The Committee against Tortures (Комитет Против Пыток), carried out a second internal investigation in respect of the applicant’s allegations. It resulted in a finding that the applicants’ claims were unsubstantiated. A copy of the relevant report has not been submitted to the Court.

42.  In the meantime, on 5 April 2006 the second applicant located T., a witness who had been detained in a cell with the first applicant. He stated in writing that the latter had been ill-treated and forced into self-incrimination.

43.  On 29 May 2006 the Chechen Prosecutor informed the second applicant that her complaints regarding her son’s alleged ill-treatment would be examined within criminal case no. 50057, which had been opened into M.V.’s allegations of ill-treatment during his pre-trial detention.

44.  On 28 April 2007 the Russian Prosecutor General informed the second applicant that the latest decision not to open a criminal case had been annulled and that a new pre-investigation inquiry in respect of the alleged ill-treatment was ongoing. From the Government’s submission it appears that the pre-investigation inquiry ended with a decision not to open a criminal case dated 4 June 2009. A copy of this decision has not been furnished to the Court.

V. Court appeals against the decision not to open a criminal case

45.  On 25 September 2006 the second applicant complained to the Leninsky District Court of Grozny about the investigating authorities’ refusal to institute criminal proceedings into her son’s ill-treatment. The outcome of those proceedings is unknown.

46.  Later, on an unspecified date, she challenged the investigator’s decision of 3 March 2006 before the Zavodskoiy District Court of Grozny.

47.  On 25 December 2006 that court dismissed her claim. It found that the pre-investigation inquiry had been carried out in accordance with the law and that the second applicant had failed to furnish any evidence capable of rebutting the investigator’s finding that the first applicant had not been ill-treated.

48.  The second applicant appealed against the above decision to the Supreme Court of Chechnya, which dismissed her appeal on 18 April 2007.

VI. The first applicant’s state of health after the alleged ill-treatment

49.  In 2008 the first applicant was admitted for treatment at the Centre for Torture Survivors in Finland (“the Centre”). According to a report of 10 September 2009, prepared by a psychologist practising at that centre, the first applicant was suffering from post-traumatic stress disorder and anxiety. At the beginning of treatment he seemed to be in a state of constant alert. He had a very high anxiety level and it was difficult for him to remain seated during the appointments. He experienced strong headaches on an almost daily basis and had trouble sleeping at night. The headache problems had not ceased. The first applicant had continued experiencing dissociative symptoms typical for post-traumatic stress including difficulties in orientation and focusing as well as shifts of his emotional state.

50.  On 7 and 14 September 2009 a physiotherapist from the Centre examined the first applicant on account of the trauma allegedly inflicted by the police in 2004. The doctor established a number of scars on his body, including a scar measuring 10 cm on the posterior side in the middle of the cranium, scar tissue on the auricle of the right ear, as well as scars on both scapulae and his back (in the lumbar area and in the area of the twelfth rib), and scars on both arms and wrists. In addition the first applicant suffered from restricted movement, back pain and other symptoms. The doctor concluded that the bodily marks and the symptoms fitted the first applicant’s detailed description of ill-treatment.

51.  On 16 September 2009 the first applicant was examined by the Centre’s specialist in neurology and psychotherapy. The first applicant complained to that doctor of his health problems related to the alleged ill‑treatment in 2004. The doctor found that his symptoms were consistent with the allegation of torture.

RELEVANT LEGAL FRAMEWORK and the council of europe material

I. RELEVANT PROVISIONS OF THE RUSSIAN LEGISLATION

52.  For a summary of relevant provisions of the Criminal Code and the Code of Criminal Procedure of the Russian Federation, see, in so far as relevant, Ryabtsev v. Russia (no. 13642/06, §§ 42-52, 14 November 2013) and Lyapin v. Russia (no. 46956/09, §§ 99-102, 24 July 2014).

II. INFORMATION FROM CPT

53.  On 10 July 2003 Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the “CPT) made Public statement concerning the Chechen Republic of the Russian Federation (CPT/Inf (2003) 33), which in the relevant part reads as follows:

“4. In the course of the CPT’s visits to the Chechen Republic in 2002 and, most recently, from 23 to 29 May 2003, a considerable number of persons interviewed independently at different places alleged that they had been severely ill-treated whilst detained by law enforcement agencies. The allegations were detailed and consistent, and concerned methods such as very severe beating, the infliction of electric shocks, and asphyxiation using a plastic bag or gas mask. In many cases, these allegations were supported by medical evidence. Some persons examined by the delegation’s doctors displayed physical marks or conditions which were fully consistent with their allegations. Documentation containing medical evidence consistent with allegations of ill-treatment during periods of detention in law enforcement agencies was also gathered. The allegations of ill-treatment received by the CPT concerned law enforcement establishments (Departments of Internal Affairs and certain Federal Security Service facilities) throughout the territory of the Chechen Republic and related to both official and unofficial places of detention. ...

5. One establishment stands out in terms of the frequency and gravity of the alleged ill-treatment, namely [ORB-2].”

54.  On 13 March 2007 the CPT made another Public statement concerning the Chechen Republic of the Russian Federation (CPT/Inf (2007) 17), which in the relevant part reads as follows:

“15. In the course of the visits to the North Caucasian region in 2006, the CPT’s delegation once again received many credible allegations of recent ill-treatment of detained persons by members of law enforcement agencies and security forces in the Chechen Republic. The ill-treatment alleged was frequently of such a severity that it could be considered to amount to torture; the methods involved included extensive beating, asphyxiation using a plastic bag or gas mask, electric shocks, suspension by the limbs, hyperextension and, more rarely, the infliction of burns by cigarettes, lighters or other devices. Accounts were also received of threats of execution or of sexual abuse in order to obtain a confession or information. The general picture which emerged was that any detained person who did not promptly confess to the crime of which he was suspected (or provide information being sought by those responsible for the detention) would be in imminent danger of being ill-treated...

As regards official law enforcement structures, a particularly high number of allegations of ill-treatment continue to relate to [ORB-2] in ... Other law enforcement structures where there would appear to be a particularly high risk of ill-treatment include ... [the Leninskiy ROVD] ...”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

55.  The first applicant complained under Article 3 of the Convention that after his arrest police officers had tortured him with a view to extracting statements of confession and that the national authorities had failed to carry out an effective investigation into that matter. Article 3 reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A.    Admissibility

56.  The Government claimed that the first applicant’s complaint is manifestly ill-founded. They also noted that the applicants had not appealed against the decision not to open a criminal case on 2 March 2006, but the domestic authorities on their own motion had conducted an additional pre‑investigation inquiry.

57.  The first applicant maintained his complaint. He stated that the admissibility requirements had been fully complied with. In particular, the domestic remedies had been exhausted, because the decision of 2 March 2006 had been challenged before domestic courts.

58.  The Court observes that the second applicant, on the first applicant’s behalf, indeed challenged the investigator’s decision not to open a criminal case into the first applicant’s alleged ill-treatment of 2 March 2006 before the Zavodskoy District Court and then before the Supreme Court of Chechnya, which dismissed her claim. Accordingly, the domestic remedies in respect of the complaints under examination were exhausted (see Belevitskiy v. Russia, no. 72967/01, § 61, 1 March 2007, and Meshengov v. Russia [CTE], no. 30261/09, § 35, 26 March 2019).

59.  The Court notes that the first applicant’s complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.     Merits

1.    The parties’ submissions

60.  The Government submitted that there was no evidence to conclude that the first applicant had been subjected to torture. The investigating authorities had conducted a pre-investigation inquiry into his allegation of police ill-treatment and disclosed that the bodily injuries had been inflicted with a hard blunt object. The pre-investigation inquiry had ultimately decided not to open a criminal case, because the allegations had proved to be unfounded. Lastly, the Government noted that the criminal proceedings against the first applicant were still ongoing, because he had avoided participation in the proceedings by leaving the country.

61.  The first applicant maintained his complaint. He pointed out that the Government had not explained the origin of his injuries. The credibility of his account of events was supported by two expert reports prepared in 2004, the finding of the Supreme Court of Chechnya on 30 March 2005 and three conclusions by the medical specialists from the Centre drafted in 2009. The first applicant also stated that the domestic investigation had been ineffective, particularly because Investigator D. had been partial, and because he had failed to undertake basic investigative measures - he had not questioned key witnesses or examined the crime scene.

2.    The Court’s assessment

(a)    General principles

62.  The relevant general principles have been summarised by the Court in Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-90 and 114-23, ECHR 2015) and Lyapin, cited above, §§ 109-15.

(b)    Application of the above principles to the present case

(i) Credibility of the first applicant’s allegation of ill-treatment, and presumption of fact

63.  It is not in dispute between the parties that before the arrest the first applicant did not have any injuries on his body, but several days later he required medical aid on account of the contusion of his back and an injury of the front abdominal wall (see paragraph 34 above). Then, on 4 June 2004 a forensic medical expert found numerous bruises and abrasions on his body. The expert held that those injuries could have resulted from the alleged ill‑treatment by police officers (ibid.). On 2 July 2004 another expert established that he had scars on his chest and a knee (see paragraph 37 above). About five years later, in September 2009 medical specialists from the Centre for Torture Survivors noted a number of scars, bodily marks and symptoms which were consistent with the detailed description of police ill-treatment which the applicant had submitted (see paragraphs 49‑51 above).

64.  In view of the foregoing, the Court considers that the first applicant’s injuries could arguably have resulted from the violence which he allegedly suffered at the hands of the police officers, who put pressure on him to extract confession to crimes. This finding is consistent with the CPT’s public statements cited in paragraphs 53 and 54 above. All of the aforementioned considerations are sufficient to give rise to a presumption in favour of the first applicant’s account of events and to satisfy the Court that his allegations of police violence were credible.

(ii) Whether an effective investigation was carried out into the applicants’ allegations of ill-treatment by the police

65.  The Court further observes that the first applicant’s allegations of his injuries having been the result of ill-treatment by police officers were dismissed by the domestic investigating authorities. The latter based their findings on the results of the pre-investigation inquiry, which is the initial stage in dealing with a criminal complaint under Russian law and should normally be followed by the opening of a criminal case and the carrying out of an investigation if the information gathered has disclosed elements of a criminal offence (see Lyapin, cited above, § 129).

66.  The Court has already held that the mere carrying out of a pre‑investigation inquiry is insufficient if the authorities are to comply with the standards established under Article 3 of the Convention for an effective investigation into credible allegations of ill‑treatment in police custody. It is incumbent on the authorities to institute criminal proceedings and conduct a fully fledged criminal investigation in which a full range of investigative measures are carried out (ibid., §§ 129 and 132-36, and see Sergey Ryabov v. Russia, no. 2674/07, § 44, 17 July 2018).

67.  In the present case the Court is particularly dissatisfied with the perfunctory manner in which the pre-investigation inquiry was conducted. It notes that the first refusal to open a criminal case was issued within two days of the first applicant’s counsel’s complaint (see paragraph 35 above). It further notes that as far as can be seen from the documents in its possession, the investigators failed to perform basic investigative steps: to question key witnesses including the first applicant’s counsel, the second applicant, M.V., the first applicant’s fellow inmates, the staff of the police holding cells, and the person who had provided the first applicant with medical assistance on account of the back trauma and an injury of the front abdominal wall. The investigators never examined the alleged crime scene.

68.  The above factors are sufficient to conclude that the investigating authorities failed to carry out an effective investigation as required by Article 3 of the Convention.

(iii) Whether the Government provided explanations capable of casting doubt on the applicants’ account of events

69.  The Court observes that neither the Government nor the investigating authority explained the origin of the first applicant’s injuries. Accordingly, the burden of proof lying on the Government has not been discharged.

(iv) Legal classification of the treatment

70.  The medical documents in the Court’s possession support the first applicant’s version of beatings by police officers. Even if the Court is not convinced that the perpetrators gave him electroshocks, because no specific marks on his body were found, regard being had to the prolonged period of ill-treatment, its violent manner, long-lasting negative impact on the first applicant’s health and the aim of extracting confession to crimes which that treatment pursued, the Court concludes that the police subjected the first applicant to torture (see Lyapin, cited above, §§ 119-20).

(v) Conclusion

67.  There has accordingly been a violation of Article 3 of the Convention under its substantive and procedural limbs in respect of the first applicant.

II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

71.  The first applicant complained that his arrest and unrecorded detention from 4 a.m. on 26 May 2004 to 5.30 p.m. on 27 May 2004 had been unlawful. He relied on Article 5 of the Convention, which, in so far as relevant, provides 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 ...”

A.    Admissibility

72.  The Government claimed that the complaint under examination is manifestly ill-founded.

73.  The first applicant contested that argument claiming that he had complied with the admissibility requirements.

74.  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

1.    The parties’ submissions

75.  The Government stated that the first applicant had been arrested at 5.30 p.m. on 27 May 2004 and taken to the Leninskiy ROVD. His detention pending investigation and trial had been authorised in full compliance with domestic law. To support that statement the Government relied on a copy of the first applicant’s arrest record of 27 May 2004, the Leninskiy ROVD logbook, and statements of several police officers. However, copies of the logbook and the police officers’ statements have not been submitted to the Court.

76.  The first applicant contested the date of his arrest. According to him, it had taken place at 4 a.m. on 26 May 2004. The first applicant noted that the Government had failed to submit copies of the Leninskiy ROVD logbook and police officers’ statements. Moreover, the Government had not provided the Court with a detailed account of the surrounding circumstances or submitted the names of the police officers who had arrested him.

2.    The Court’s assessment

77.  The Court observes that the Government did not submit copies of the Leninskiy ROVD logbook or statements of police officers, which allegedly confirmed their account of events. The Government’s assertion that the applicant was arrested on 27 May 2004 is therefore supported only by his arrest record. However, the credibility of that evidence is undermined by the conclusion of the Supreme Court of Chechnya of 30 March 2005 which, having compared it with other documents, established that it had been falsified. That finding was supported by the statement of attesting witnesses who had stated that he had not been present during the first applicant’s arrest. Although the Supreme Court’s judgment had been quashed by a higher instance, the finding that the arrest record had been forged was never rebutted by the courts or investigating authorities. The Government did not comment on that.

78.  Against that background the Court accepts the applicants’ account of events, which was detailed, consistent and of which the investigating authorities were promptly made aware.

79.  Accordingly, the Court finds that the first applicant was arrested at 4 a.m. on 26 May 2004 by police officers and unlawfully detained at the Leninskiy ROVD until his arrest was officially recorded as having taken place at 5.30 p.m. on 27 May 2004. His unrecorded detention left him completely at the mercy of those holding him, putting his personal security at risk, and rendering him vulnerable to ill‑treatment (see Fartushin v. Russia, no. 38887/09, §§ 50, 53 and 54, 8 October 2015).

80.  There has therefore been a violation of Article 5 of the Convention in respect of the first applicant.

III. ALLEGED VIOLATION OF article 13 of the convention in conjunction with articles 3 and 5 of the convention

81.  Lastly, the first applicant complained, under Article 13 of the Convention taking in conjunction with Articles 3 and 5, of the lack of effective domestic remedies at his disposal through which to complain of police ill-treatment and unlawful detention. Article 13 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.”

A.    Admissibility

82.  The Government claimed that the first applicant’s complaints are manifestly ill-founded.

83.  The first applicant contested that argument claiming that he had complied with the admissibility requirements.

84.  The Court notes that the complaints at hand 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

85.  The Government stated that the first applicant had had at his disposal effective domestic remedies to complain of his abduction and police ill‑treatment. The authorities had conducted a thorough pre-investigation inquiry and internal police investigations in respect of his allegation of ill‑treatment. In addition it had remained open for the first applicant to raise the issues in the context of the criminal proceedings against him.

86.  The first applicant maintained his complaint.

2.    The Court’s assessment

87.  Having regard to its finding of a violation of Article 3 under its procedural head on account of the respondent State’s failure to carry out an effective investigation, and its finding of a violation of Article 5 on account of the first applicant’s unrecorded detention, the Court considers that the complaint under Article 13 taken in conjunction with Articles 3 and 5 does not raise any separate issue and that it is not necessary to examine it (see Lyapin, cited above, § 144, and Fartushin, cited above, §§ 59-60).

IV. Other alleged violations

88.  The second applicant complained under Article 3 of the Convention that she had suffered anguish and distress as a result of the first applicant’s ill-treatment and the lack of effective investigation in its respect. She also complained under Article 13 that she had had no effective domestic remedy to complain about the alleged violations. Lastly she complained under Article 34 of the Convention of the hindrance of her right to individual petition.

89.  The Court has examined those complaints. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court 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 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.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

90.  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

91.  The first and the second applicants claimed 50,000 euros (EUR) and EUR 5,000 respectively in respect of compensation for non-pecuniary damage. They asked that the first applicant’s award to be paid into the bank account of his representative, because disclosure of his address could result in his arrest.

92.  The Government argued that a finding of a violation constituted by itself sufficient just satisfaction and that their claim was in any event excessive.

93.  The Court accepts that the first applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Regard being had to the long-lasting impact to his health of the first applicant’s ill-treatment and other circumstances of the case, the Court awards him EUR 50,500 in respect of non-pecuniary damage, plus any tax that may be chargeable to him on that amount.

B.     Costs and expenses

94.  The applicants claimed EUR 7,011.75 for the legal costs and expenses incurred before the Court. They asked the award to be paid into the bank account of their representative.

95.  The Government submitted that the claim was not unsubstantiated.

96.  According to the Court’s case-law (see Merabishvili v. Georgia [GC], no. 72508/13, § 370, ECHR 2017 (extracts)), an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the first applicant the sum of EUR 2,000 (two thousand euros) in respect of costs and expenses, plus any tax that may be chargeable on that amount, to be paid into the bank account of the applicants’ representative as indicated by the applicants.

C.    Default interest

97.  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 first applicant’s ill-treatment, unrecorded detention and the lack of effective domestic remedies in respect of those complaints admissible, and the remainder of the application inadmissible;

2.      Holds that there has been a violation of Article 3 of the Convention under its substantive limb, in that the first applicant has been subjected to torture;

3.      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 first applicant’s allegation of ill-treatment;

4.      Holds that there has been a violation of Article 5 of the Convention on account of the first applicant’s unrecorded detention;

5.      Holds that there is no need to examine the complaints under Article 13 of the Convention taken into conjunction with Articles 3 and 5 of the Convention;

6.      Holds

(a)   that the respondent State is to pay the first applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)         EUR 50,500 (fifty thousand and five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)       EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of costs and expenses. The award is to be paid into the applicants’ representative’s bank account as indicated by the applicants;

(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;

7.      Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 22 September 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova                                                                 Alena Poláčková
Deputy Registrar                                                                       President