European Court of Human Rights

 

 

THIRD SECTION

CASE OF KRAMARENKO AND OTHERS v. RUSSIA

(Applications nos. 21840/13 and 22271/13)

 

 

 

JUDGMENT

STRASBOURG

19 January 2021

 

 

 

 

 

 

 

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

 

In the case of Kramarenko and Others v. Russia,

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

          Darian Pavli, President,
          Dmitry Dedov,
          Peeter Roosma, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the applications (nos. 21840/13 and 22271/13) 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 Russian nationals (see the Appendix) on 15 March 2013 and 9 February 2013 respectively;

the decision to give notice of the applications to the Russian Government (“the Government”);

the parties’ observations;

Having deliberated in private on 8 December 2020,

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

INTRODUCTION

1.  The applications concern alleged unrecorded detention and ill‑treatment of the applicants, relatives of a suspect in a criminal case, at police station no. 6 in Voronezh in October 2011.

THE FACTS

2.  The applicants are Russian nationals who live in Voronezh. The list of applicants is set out in the Appendix.

3.  The first applicant was represented by Ms O.A. Gnezdilova, a lawyer practising in Voronezh. The other applicants are not represented.

4.  The Russian Government (“the Government”) were represented by Mr A. Fedorov, Head of the Office of the Representative of the Russian Federation to the European Court of Human Rights, and subsequently by Mr M. Galperin, Representative of the Russian Federation at the European Court of Human Rights.

A.     Background information

5.  The present two applications concern the circumstances of the alleged police ill-treatment of family members of Mr Dmitriy Kramarenko (Mr Kramarenko), in respect of whom the Court found a violation of Article 3 of the Convention on account of his ill-treatment on 10 October 2011 (see Kramarenko v. Russia, no. 26107/13 [Committee], 3 October 2017).

6.  The applicants in the present case are relatives. The second applicant is the father of the first, third and fourth applicants. The fourth applicant was thirteen years old at the time of the events.

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

B.     Application no. 22271/13, lodged on 9 February 2013

1.    The events of 9 and 10 October 2011

(a)    Alleged ill-treatment of the second and third applicants

8.  On 9 October 2011 the second, third and fourth applicants, and Ms S.K., daughter of the second applicant, were at their house.

9.  At about 3 p.m. police officers of the Criminal Investigation Department in Voronezh came to the applicants’ house, looking for Mr Kramarenko. They held the applicants and Ms S.K. in the house until 9 p.m.

10.  At about 9 p.m. the officers took the second and third applicants to police station no. 6 in Voronezh. According to the applicants, the officers took their fingerprints, threatened and insulted them, took away their mobile phones and refused to allow them to contact their relatives or a lawyer, or to call a doctor. The officers asked the applicants about Mr Kramarenko’s whereabouts.

11.  On 10 October 2011 at about 9 a.m. the officers took them to another police station, where they were allegedly held handcuffed to a wall until 5 p.m. They were allegedly not given any food or water.

12.  According to the applicants, on 10 October 2011 between 5 and 10 p.m. they were held at police station no. 6. They were released afterwards. The police officers did not draw up any record of their presence at the station.

13.  It appears that the second and third applicants did not seek medical assistance following their release.

(b)    Alleged ill-treatment of the fourth applicant

14.  On 10 October 2011 at about 8 a.m. three police officers came to the applicants’ house and took the fourth applicant and her stepmother, Ms A.Kh., to police station no. 6.

15.  According to the fourth applicant, at the station one of the officers questioned her alone about her brother’s whereabouts. The fourth applicant was subsequently questioned together with her mother, Ms S. At about midday the officers told the fourth applicant that they were going to search for the first applicant and that she was going with them. They put her in a car. The fourth applicant was not accompanied by her relatives. The fourth applicant said that she did not know where the first applicant lived. The officers threatened to take her to the forest, rape and kill her, if she refused to tell them his address. The fourth applicant told them the address and they went to the first applicant’s house. The officers arrested the first applicant and then took the fourth applicant back to the police station. She left the police station with her stepmother at about 5 p.m.

16.  The police did not draw up any record of the fourth applicant’s presence at the police station.

2.    Inquiry into the alleged ill-treatment

17.  In November 2011 the second, third and fourth applicants were interviewed as witnesses in Mr Kramarenko’s criminal case. During the interview they complained of their ill-treatment and unlawful detention on 9 and 10 October 2011. The authorities took no action upon their complaints.

18.  In February and March 2012 the second, third and fourth applicants made several complaints about their ill-treatment and unlawful detention in October 2011.

19.  On 7 March 2012 an investigator refused to open a criminal case. He referred to the explanations of two police officers, who denied that the applicants had been detained at the station. The investigator noted that the applicants had not sought medical assistance and found that their allegations of ill-treatment were unsubstantiated.

20.  On 30 March 2012 the refusal was quashed. The investigator was instructed, among other things, to take an explanation from the fourth applicant about the second and third applicants’ detention and about her allegations of threats made by the police officers.

21.  On 30 March 2012 the head of the police station made a report on internal inquiry. According to report no. 116, on 9 October 2011 the applicants had been present at the police station, where the police had questioned them about the whereabouts of Mr Kramarenko. They had been released after the interview.

22.  On 16 April 2012 the investigator again refused to open a criminal case. The decision contained the same explanations by the police officers and also the fourth applicant’s explanation that she had been threatened with rape and murder. It did not contain any assessment of her allegations. The investigator referred to log data of police station no. 6, showing that the second and third applicants had not been taken to or held at the station.

23.  On 12 May 2012 the applicants appealed against the refusals before the Tsentralnyy District Court. They complained that the investigators had failed to address properly their complaints about the ill-treatment and their unrecorded detention at the police station.

24.  On 24 May 2012 a superior investigator quashed the refusal of 16 April 2012. He ordered, among other things, that the fourth applicant’s stepmother be questioned and that the police officers who had taken the fourth applicant to the station be identified.

25.  On 8 June 2012 the investigator interviewed the fourth applicant’s stepmother, Ms A.Kh. She submitted that when they had been taken to the police station, the officers had questioned the fourth applicant alone. On 10 October 2011 at about 12 noon the officers had brought in the fourth applicant. She was scared and she told Ms A.Kh. that the officers had threatened her with rape, if she did not give them the first applicant’s address.

26.  On 13 June 2012 the Tsentralnyy District Court discontinued the proceedings since the refusals had been quashed.

27.  On 2 August 2012 the Voronezh Regional Court upheld the court decision. The applicants received the Voronezh Regional Court’s decision on 28 September 2012.

C.     Application no. 21840/13, lodged on 15 March 2013

1.    Alleged ill-treatment of the first applicant on 10 October 2011

28.  On 10 October 2011 at about 11.55 a.m. police officers arrested the first applicant near his house, following the fourth applicant’s indications. According to the first applicant, the officers took away his mobile phone, handcuffed him and took him to a garage located in the yard of police station no. 6. The officers asked him the whereabouts of Mr Kramarenko. According to the first applicant, they applied electric shocks to his fingers at least twice. They then took the applicant to his workplace, a bar. Using his phone, they called Mr Kramarenko and told him to come to the bar. At around 5 p.m., when Mr Kramarenko arrived, the officers arrested him and released the first applicant.

29.  On the same day, the first applicant went to hospital. According to his medical record of 10 October 2011, he had injuries “caused by electric shocks”, as explained by the applicant.

30.  On 12 October 2011 the applicant went to a forensic medical examination bureau in Voronezh. The applicant explained to an expert that he had been ill-treated and electrocuted by police officers. According to forensic report no. a1491.11, he had abrasions on his right wrist, dotted abrasions on the fingers of both hands and multiple dotted bruises on his left shoulder and bruising on his left knee. The report did not give a conclusion on the origin of the injuries.

2.    Inquiry into the alleged ill-treatment

31.  On 28 October 2011 the first applicant complained to an investigator of ill-treatment and unrecorded detention.

32.  On 7 November 2011 the investigator ordered his forensic medical examination. According to report no. 4743.11 of 11 November 2011, the applicant’s injuries could have been inflicted on 10 October 2011. The expert considered that they had not been caused by electric shocks.

33.  On 28 November 2011 the investigator refused to open a criminal case, referring mainly to the explanations by the police officers that the applicant had actively resisted his apprehension and that they had handcuffed him. According to their explanation, after the applicant had calmed down, they had removed the handcuffs. The applicant himself had suggested going to the bar where he worked and calling his brother. When Mr Kramarenko arrived, they had arrested him. The first applicant continued his work at the bar. They did not use any force and did not take him to the police station. The investigator referred to the latest forensic report and dismissed his allegations of the use of electric shocks.

34.  On 20 January 2012 the refusal was quashed as incomplete.

35.  On 29 January 2012 the investigator again refused to open a criminal case for the same reasons as before. The decision also contained a report by the expert who had examined the applicant on 10 October 2011. He reiterated that the first applicant had had no injuries that could possibly have been caused by electric shocks.

36.  On 3 October 2012 the Leninskiy District Court endorsed the investigator’s reasoning and dismissed the applicant’s appeal against the refusal.

37.  On 15 November 2012 the Voronezh Regional Court upheld the court decision.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

38.  For the relevant provisions of domestic law on the prohibition of torture and other ill-treatment, see Lyapin v. Russia, no. 46956/09, §§ 96‑102, 24 July 2014.

THE LAW

I.       JOINDER OF THE APPLICATIONS

39.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II.    ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

40.  The first, second and third applicants complained under Article 3 of the Convention that they had been subjected to ill‑treatment by State officials and that the State had failed to conduct an effective domestic investigation into those incidents. The fourth applicant complained that the threats of rape and murder made by State officials amounted to ill-treatment proscribed by Article 3 of the Convention, which reads as follows:

Article 3

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

A.     Admissibility

41.  The Court notes that the 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

(a)    The applicants

42.  The applicants maintained their complaints.

43.  The first applicant submitted that ill-treatment, in particular by electric shocks, was widely practised by police officers of the Criminal Investigation Department no. 6 in Voronezh, as shown by other applications to the Court. The applicant referred to the case of his own brother, Mr Kramarenko, who had been ill-treated by the same police officers on 10 October 2011 (see Kramarenko v. Russia, no. 26107/13 [Committee], 3 October 2017). He further referred to the cases of Lykova v. Russia (no. 68736/11, 22 December 2015, where the Court has found the authorities responsible for the applicant’s son’s ill-treatment and death at police station no. 6 in 2009), and Manzhos v. Russia (no. 64752/09, 24 May 2016, also concerning ill-treatment in 2008 at the same police station [mentioned in that case as the Tsentralnyy district police station]). The applicant also referred to the case of Martyshev v. Russia (see Shishkin v. Russia, no. [Committee], 1 September 2020), where the applicant had been tortured in 2012 by the same police officer, Mr M., who had allegedly ill-treated the applicant and who had been convicted for abuse of power in the case of Mr Martyshev.

44.  The first applicant also submitted that he had been ill-treated with electric shocks and that neither the investigator nor the Government had provided a plausible explanation for the injuries in the form of dots on his fingers and shoulder.

(b)    The Government

45.  Regarding application no. 21840/13, the Government maintained the conclusions of the domestic inquiry. They submitted that the second and third applicants’ allegations of ill-treatment had not been supported by any evidence.

46.  Regarding application no. 22271/13, the Government submitted that the second, third and fourth applicants had been taken to police station no. 6 on 10 October 2011 after 6 p.m. The applicants’ presence at the police station had not been registered because the applicants had not been arrested and they had been taken there only for an interview.

47.  They also submitted that the first applicant had been apprehended after the fourth applicant had shown them where he lived.

2.    The Court’s assessment

(a)    Substantive aspect of Article 3 of the Convention

(i)      The first applicant

48.  The Court notes that it is not disputed that the first applicant was apprehended by the police between 12 and 5 p.m. on 10 October 2011 in order to find out the whereabouts of his brother. It is disputed whether the first applicant was taken to police station no. 6. The Court finds it irrelevant whether the applicant was taken to the station or not, since after spending about five hours at the hands of the police officers, the first applicant had sustained several injuries. In particular, he had abrasions on his wrist, dotted abrasions on his fingers and left shoulder and bruising on his left knee recorded by a forensic medical expert (see paragraph 30 above). The Court finds that the applicant’s allegations of ill‑treatment by police officers were credible.

49.  The Court further observes that the investigator concluded that the first applicant’s injuries had resulted from his active resistance during his apprehension (see paragraph 33 above). He also referred to the explanations of a forensic expert that the applicant had not had any injuries caused by electric shocks (see paragraph 35 above).

50.  The Court considers that the first applicant’s abrasions on his wrists and the bruising on his knee may be explained by his alleged resistance and the use of handcuffs. However, ruling out the use of electric shocks, the investigator did not attempt to establish a real cause for the dotted abrasions on the applicant’s fingers and on his shoulder. He simply referred to the expert’s explanations, without providing any conclusion on the injuries’ origin.

51.  The first applicant referred to other cases of ill-treatment at police station no. 6 in Voronezh in support of his allegation of ill-treatment by electric shocks (see paragraph 43 above). He argued that, given the Court’s findings in other cases of ill-treatment at that particular police station (see Lykova, Manzhos, Martyshev, Kramarenko, all cited above), the practice of ill-treatment at police station no. 6 in Voronezh by electric shocks was regular and amounted to torture. The Court does not need to decide whether or not ill-treatment was a common practice at the police station in question. It notes anyway that in the case of the applicant’s brother (see Kramarenko, cited above), the Court was not provided with evidence of his ill-treatment by electric shocks, whereas in Martyshev the applicant did not claim that he had been ill-treated with electric shocks.

52.  In view of the fact that the expert ruled out twice the use of electric shocks to the first applicant in his report and during questioning (see paragraphs 32 and 35 above), the Court is not in a position to draw a conclusion about the origin of the applicant’s injuries in the form of dots. The Court therefore has no evidence to find that he had been subjected to ill-treatment by electric shocks. The Court was not provided with any evidence which would undermine the expert’s independence or trustworthiness, in order to conclude that his statements were tainted.

53.  On the basis of all the material placed before it, the Court finds that neither the authorities at the domestic level, nor the Government in the proceedings before the Court, have advanced any explanation as to the origin of the applicant’s injuries, in particular, the dotted abrasions on his fingers and shoulder. The Court reiterates its settled approach that any recourse to physical force which has not been made strictly necessary by the person’s conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the Convention, whatever the impact on the person in question (see Bouyid v. Belgium [GC], no. 23380/09, §§ 100-01, ECHR 2015). Accordingly, having regard to the nature and the extent of the first applicant’s injuries, the Court concludes that the treatment complained of amounted to inhuman and degrading treatment. The Court therefore concludes that there has been a breach of the substantive aspect of Article 3 of the Convention.

(ii)    The second and third applicants

54.  The Court notes that on 9 or 10 October 2011 the applicants were taken by police officers to police station no. 6 in connection with the investigation of a crime, in which Mr Kramarenko had been a suspect. The date of their apprehension is disputed by the parties.

55.  According to the refusals to open a criminal case, the applicants were not taken to the police station at all (see paragraphs 19 and 22 above). According to the police internal inquiry, the applicants were present at the station on 9 October 2011 (see paragraph 21 above). The Government submitted that they had been taken to the police station on 10 October after 6 p.m. (see paragraph 46 above).

56.  The Court finds that while the applicants gave detailed, coherent and corroborated accounts of the events in question, the national authorities’ findings and the Government’s submissions contradict not only the applicants’ version, but also each other’s conclusions. In the absence of any relevant and convincing reasons to explain these contradictions, the Court accepts that the applicants were held at police station no. 6 between 9 p.m. on 9 October 2012 and 10 p.m. on 10 October 2011.

57.  The applicants complained that they had spent this period of time at the police station handcuffed and without food or water. The Court has previously emphasised the strong evidential value of medical certificates attesting evidence of ill-treatment and issued shortly after the alleged ill‑treatment (see Hentschel and Stark v. Germany, no. 47274/15, § 74, 9 November 2017). The Court observes that the applicants’ allegations of being handcuffed and deprived of food and water during their presence at the station are not supported by any evidence. Following the applicants’ release, they failed to seek medical assistance or to record their psychological and physical state of health (see paragraph 13 above). It follows that they complained to the authorities of the alleged ill‑treatment for the first time only in November 2011 (see paragraph 17 above).

58.  In the light of the foregoing, the Court finds it impossible to establish “beyond reasonable doubt” that the second and third applicants had been ill-treated by the police on 9 and 10 October 2011. Accordingly, there has been no violation of the substantive aspect of Article 3 of the Convention in respect of their alleged ill-treatment.

(iii)  The fourth applicant

59.  The Court notes that, as it follows from the case materials, the fourth applicant was taken to the police station at about 8 a.m. on 10 October 2011.

60.  The Government’s submission that the fourth applicant had been taken to the police station on 10 October 2011 after 6 p.m. is not consistent with their own explanations. In particular, the Government acknowledged that the police had apprehended the first applicant when the fourth applicant had given them his address (see paragraph 47 above), which was on 10 October 2011 at around midday, as follows from the case file (see paragraph 28 above). Therefore, the fourth applicant was clearly apprehended by the police before midday on 10 October and not after 6 p.m., as submitted by the Government.

61.  The Court further observes that Ms A.Kh. submitted to the investigator that when the fourth applicant had been taken to the police station, she had been questioned alone (see paragraph 25 above). Around midday, after the fourth applicant had been allowed to see Ms A.Kh., she immediately complained to Ms A.Kh. that the police had threatened her with rape. Ms A.Kh. submitted that the applicant had been scared after the interaction with the police officers (ibid.). The Court finds Ms A.Kh.’s explanations credible and consistent with the applicants’ complaints to the domestic authorities. These allegations were not disputed by the authorities or the Government. The Court therefore considers it sufficient to find that the fourth applicant’s allegations of threats issued by police officer were credible.

62.  The Court notes that the fourth applicant, who was thirteen at the time and not accompanied by a parent or a representative, spent about four hours with at least three police officers. During this time they questioned her about the whereabouts of her brothers, put her in a car, alone and without anyone she knew, and drove away from the police station. The threats of rape were made in the context of the applicant being already in a police car with three male police officers. Such threats of deliberate and imminent ill-treatment to which the fourth applicant, a minor girl, was subjected in the police car must be regarded as having caused her considerable fear, anguish and mental suffering (see, mutatis mutandis, Gäfgen v. Germany [GC], no. 22978/05, § 103, ECHR 2010).

63.  Having regard to the relevant factors for characterising the treatment to which the applicant was subjected, the Court is satisfied that the real and immediate threats against the fourth applicant for the purpose of extracting information from her attained the minimum level of severity to bring the impugned conduct within the scope of Article 3 of the Convention (see Gäfgen, cited above, § 108). The Court considers that the treatment to which she was subjected, in the circumstances of this case, was sufficiently serious to amount to inhuman and degrading treatment prohibited by Article 3 of the Convention.

(b)    Procedural aspect of Article 3 of the Convention

(i)      The first applicant

64.  As regards the effectiveness of the investigation into the alleged ill‑treatment, the Court observes that, in response to the first applicant’s allegations that his injuries were the result of police ill-treatment, the domestic authorities conducted a pre-investigative inquiry, which is an initial stage in dealing with a criminal complaint under Russian law. It 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 the 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.

65.  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 observes that the first applicant’s credible allegations of police ill-treatment were dismissed twice, mainly on the basis of the police officers’ explanations that the applicant had offered active resistance during his apprehension (see paragraphs 33 and 35 above). The Court finds that the authorities have failed to carry out an effective investigation into the applicant’s allegations of ill-treatment at the hands of the police, as required by Article 3 of the Convention.

(ii)    The second and third applicants

66.  The Court notes that it was unable to conclude that the applicants had suffered ill-treatment at the hands of the police on 9 and 10 October 2011. That is so partly because the applicants themselves failed to support their allegations with evidence.

67.  Although the Court found no violation of the substantive limb of Article 3 of the Convention, it considers that in the present case there was an arguable claim, which only requires a reasonable suspicion of ill‑treatment. It therefore had to be effectively investigated (see Hentschel and Stark, cited above, § 82).

68.  The Court notes that even where there is insufficient evidence to show that an applicant had, in fact, been ill-treated the procedural obligation to investigate may still arise, particularly when, as in the present case, there is potential for abuse in a detention context (see Almaši v. Serbia, no. 21388/15, § 63, 8 October 2019), and where similar and concordant inter-related allegations were made by several persons.

69.  In this connection, the Court notes that the second and third applicants were held at the police station for more than a day, allegedly handcuffed and without access to food or water. Their complaints of ill‑treatment were dismissed mainly with reference to police officers’ statements denying wholly their apprehension and presence at the station. At the same time it was evident that the applicants had in fact been apprehended by the police and taken to the station on 9 October 2011 (see paragraph 21 above).

70.  The Court cannot overlook these contradictions and finds that the national authorities failed to make a genuine attempt to establish the facts of the case. In particular, they failed to record the applicants’ presence at the police station, to establish whether they had indeed been transferred from one police station to another, whether handcuffs had been used on them, as well as whether they were provided with food and water between 9 p.m. on 9 October and 10 p.m. on 10 October 2011. The authorities instead limited themselves to the contradictory statements of police officers, who merely denied their involvement in the event (see paragraphs 19 and 22 above). The Court also takes into account its findings about violations of the procedural aspect of Article 3 in respect of the other persons in the context of the same investigation.

(iii)  The fourth applicant

71.  As to the investigation into the threats of rape made by the police to the fourth applicant, the Court observes that the national authorities failed to address her complaint. The refusal of 16 April 2012 set out the fourth applicant’s explanations, but the investigator made no assessment whatsoever in that regard (see paragraph 22 above). After the decision had been quashed as incomplete, the investigator questioned her stepmother about the events, and she had confirmed the fourth applicant’s frightened state after the police had released her (see paragraph 25 above). No new decision was taken and the national courts discontinued the proceedings in view of the refusals being quashed. As a result, the fourth applicant’s complaint about her ill-treatment remained unaddressed by the authorities.

(iv)   Conclusion

72.  The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of the procedural aspect of Article 3 of the Convention in respect of all applicants.

III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

73.  The applicants complained that they had been deprived of their liberty on 9 and 10 October 2011 in breach of Article 5 of the Convention, which 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 ...”

74.  The applicants maintained their complaints. The Government maintained the conclusions of the domestic inquiries.

A.     Admissibility

75.  The Court notes that this 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 first and fourth applicants

76.  The Court observes that the first applicant was apprehended by the police on 10 October 2011 at about noon and released at around 5 p.m. The fourth applicant was held by the police on 10 October 2011 between 8 a.m. and 5 p.m. These facts were not disputed by the parties. The Court therefore finds that the applicants were deprived of their liberty.

77.  The Court considers that the applicants’ deprivation of liberty did not fall under any of the sub‑paragraphs of paragraph 1 of Article 5 of the Convention. The Court notes that none of the applicants were suspects. The national authorities considered the first and fourth applicants as witnesses in their relative’s criminal case. However, they failed to produce any evidence supporting their version (see Creangă v. Romania [GC], no. 29226/03, § 90, 23 February 2012) such as, for example, records confirming their status or their interviews as witnesses.

78.  The Court does not find credible the authorities’ version that the first applicant himself suggested going to his workplace in order to call his brother (see paragraph 33 above) since it was not supported by any records or other evidence, except for the explanations of the police officers against whom the applicant had made a complaint.

79.  As to the fourth applicant, the Court notes that when she was taken to the police station she was separated from her stepmother. She was under the control of the police officers and was not free to leave the police station. Furthermore, as an unaccompanied minor, she was forcibly taken to the police car without any record being kept of this.

80.  In such circumstances the Court concludes that the deprivation of liberty of the first and fourth applicants was in breach of Article 5 of the Convention.

2.    The second and third applicants

81.  The Court has already established that the second and third applicants were held at the police station between 9 p.m. on 9 October 2011 and 10 p.m. on 10 October 2011 (see paragraph 56 above). The authorities did not acknowledge their detention at the police station (see paragraph 22 above). The Government submitted that the applicants had been taken to the police station on 10 October 2011 after 6 p.m. However, it did not provide any records confirming their submission.

82.  The Court notes that since the authorities have not acknowledged the applicants’ deprivation of liberty, they have not complied with the formalities required for a person’s detention. It reiterates that unrecorded deprivation of liberty, in the absence of any plausible explanation by the Government for this, is in itself sufficient to find a violation of Article 5 § 1 of the Convention on account of unrecorded deprivation of liberty (see Menesheva v. Russia, no. 59261/00, §§ 87-89, ECHR 2006-III; and Kasparov v. Russia, no. 53659/07, § 55, 11 October 2016).

83.  There has accordingly been a violation of Article 5 of the Convention in respect of the second and third applicants.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

84.  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.     The parties’ submissions

85.  The amounts claimed by the applicants under the head of non‑pecuniary damage are indicated in the appended table.

86.  The first applicant claimed 4,248 euros (EUR) in respect of costs and expenses. In particular, he claimed EUR 3,600 for costs and expenses incurred before the Court and EUR 400 for translation services to be paid to his representative’s bank account. He provided a contract with his representative.

87.  He also claimed EUR 16 paid for his forensic medical examination and EUR 232 paid to his lawyer in national proceedings. The applicant provided a receipt for payment for the forensic medical examination and a confirmation of payment of EUR 116 to his lawyer.

88.  The Government did not comment.

89.  The second, third and fourth applicants did not submit a claim for costs and expenses.

B.     The Court’s assessment

90.  Wherever the Court finds a violation of the Convention, it may accept that the applicants have suffered non-pecuniary damage which cannot be compensated for solely by the finding of violations, and make a financial award.

91.  Having regard to the conclusions and principles set out above and the parties’ submissions, the Court awards the applicants the amounts in respect of non-pecuniary damage detailed in the appended table, plus any tax that may be chargeable to them on those amounts.

92.  As to costs and expenses, the Court has to establish whether they were actually incurred and whether they were necessary and reasonable as to quantum (see McCann and Others v. the United Kingdom, 27 September 1995, § 220, Series A no. 324).

93.  Having regard to the case materials provided by the parties, the Court awards the first applicant EUR 132 for the costs and expenses incurred in national proceedings, plus any tax that may be chargeable to the applicant. In respect of costs and expenses incurred before the Court, it awards the first applicant EUR 3,000, plus any tax that may be chargeable on this amount.

94.  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 the applications;

2.      Declares the applications admissible;

3.      Holds that there has been a violation of Article 3 of the Convention under its substantive limb in respect of the first and fourth applicants;

4.      Holds that there has been no violation of Article 3 of the Convention under its substantive limb in respect of the second and third applicants;

5.      Holds that there has been a violation of Article 3 of the Convention under its procedural limb in respect of all applicants;

6.      Holds that there has been a violation of Article 5 of the Convention in respect of all applicants;

7.      Holds

(a)   that the respondent State is to pay the applicants, 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) the amounts indicated in the appended table, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 132 (one hundred and thirty-two euros), plus any tax that may be chargeable, in respect of costs and expenses, paid to the first applicant’s bank account;

(iii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of costs and expenses, paid to the first applicant’s representative’s bank account;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the amounts indicated in the appended table at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

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

Done in English, and notified in writing on 19 January 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova                                                                    Darian Pavli
Deputy Registrar                                                                       President

 

Appendix

List of applicants: