European Court of Human Rights

 

 

 

THIRD SECTION

CASE OF ZAGAYNOV AND OTHERS v. RUSSIA

(Applications nos. 5666/07 and 4 others - see appended list)

 

 

 

 

JUDGMENT

 

 

 

STRASBOURG

15 June 2021

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

In the case of Zagaynov 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. 5666/07 and 4 others) 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 eleven Russian nationals (“the applicants”) on the various dates indicated in the appended table;

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

the parties’ observations;

Having deliberated in private on 18 May 2021,

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

INTRODUCTION

1.  The applications concern the alleged ill-treatment of the applicants at the hands of State officials in penal facilities between 2005 and 2012, and the alleged ineffective investigation in that regard.

THE FACTS

2.  The applicants are Russian nationals living in various regions of Russia. Their details are set out in the appendix.

3.  The Russian Government (“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.

The circumstances of the case

A.    Zagaynov and Others v. Russia, application no. 5666/07

5.  The applicants are Mr Zagaynov, Mr Golovin, Mr Kondratyev, Mr Kuznetsov, Mr Maltsev, Mr Vecherov and Mr Yakovlev.

6.  At the relevant time, they were all serving sentences in correctional colony no. 6 in Yoshkar-Ola, Mari El Republic.

1.     Alleged ill-treatment on 20 December 2005

7.  At about 8 a.m. on 20 December 2005 prison officers, including deputy governor B. and a group of special-purpose unit officers (отряд специального назначения), entered the applicants’ cells.

8.  According to the applicants, they were forcibly moved from their cells outside to the open air and were not allowed to dress in winter clothes. They were beaten with rubber truncheons and kicked multiple times. The officers made them stand against the wall with their legs spread apart and forced them to remain in this position for two hours.

9.  According to the national authorities, the officers entered the cells and ordered the detainees to vacate them for a cell inspection. The applicants refused. The officers repeated their order and warned the applicants that they would use force if they continued to ignore it. Since the detainees continued to refuse, the officers used physical force to vacate the cells. The applicants resisted and tried to hit the officers. The officers used their truncheons to stop them.

2.     Reports on the use of force and medical documents

(a)    Reports on the use of force and rubber truncheons

10.  On 20 December 2005 the officers drew up a report on the use of force against Mr Zagaynov, Mr Kuznetsov, Mr Yakovlev, Mr Kondratyev, and Mr Maltsev. It said that special means and physical force had been used against the men after repeated warnings of their use for disobedience.

11.  According to another report drawn up on 20 December 2005, the same applicants outright refused to vacate their cells. They were repeatedly warned about the use of rubber truncheons and physical force for disobedience.

12.  With respect to Mr Zagaynov, Mr Kuznetsov, Mr Yakovlev, Mr Kondratyev and Mr Maltsev, the colony officers drew up separate reports in respect of each of them about the use of rubber truncheons for resistance and disobedience.

13.  According to the reports drawn up in respect of Mr Zagaynov and Mr Yakovlev, a rubber truncheon was used on their legs and back. With respect to Mr Kuznetsov, Mr Kondratyev and Mr Maltsev, a rubber truncheon was used on their legs.

14.  It appears from the case file that no reports were drawn up in respect of Mr Golovin and Mr Vecherov.

(b)    Medical examination of the applicants

15.  On the same day Mr Zagaynov, Mr Kuznetsov, Mr Yakovlev, Mr Kondratyev and Mr Maltsev were examined by a duty doctor. According to their medical notes, they had the following injuries.

16.  Mr Zagaynov had an abrasion in the area of his left shoulder blade measuring 1.5 cm and an abrasion on his left buttock measuring 4 by 2 cm.

17.  Mr Kuznetsov had two abrasions on the back of both thighs measuring 10 by 12 cm and 12 by 2 cm.

18.  Mr Yakovlev had abrasions in the area of his right shoulder blade and on the back of his right thigh.

19.  Mr Kondratyev had an abrasion on his right thigh measuring 15 by 2 cm and a contusion on his upper lip.

20.  Mr Maltsev had an abrasion on his left thigh.

21.  The medical notes concerning Mr Golovin and Mr Vecherov contain no information about injuries or requests for medical assistance on 20 December 2005.

3.     Inquiry into the alleged ill-treatment

22.  On 20 December 2005 the applicants complained to a non‑governmental organisation that they had been subjected to ill-treatment. The organisation forwarded their complaint to a prosecutor’s office.

23.  On 16 March 2006 the prosecutor refused to open a criminal case, referring to “explanations” given by the applicants and officers, and the reports on the latter’s use of force. According to the decision, physical force was used against the applicants because they had refused to obey the lawful orders of the prison officers. The prosecutor noted the applicants’ injuries and considered that the use of physical force had been lawful and justified in the circumstances. The decision did not contain a conclusion concerning the officers’ alleged refusal to allow the applicants to dress in winter clothes.

24.  It appears from the decision that on unspecified dates Mr Zagaynov, Mr Kuznetsov, Mr Yakovlev, Mr Kondratyev and Mr Maltsev underwent forensic medical examinations. Their injuries were confirmed. Mr Vecherov also underwent a forensic medical examination, but no injuries were recorded. According to the decision, Mr Golovin did not undergo a forensic medical examination.

25.  On 16 June 2006 the Yoshkar-Ola Town Court dismissed an appeal by the applicants against the refusal as unfounded. The court found, among other things, that the applicants had been allowed to put on their winter clothes during the cell inspection.

26.  On 9 August 2006 the Supreme Court of the Mari El Republic upheld that decision.

B.    Gayasov v. Russia, application no. 12892/08

1.     Alleged ill-treatment

(a)    Events of 3 December 2007

27.  On 3 December 2007 the applicant, who had been convicted of a crime, was transferred to correctional colony no. 9 (IK-9) in the Volgograd Region to serve his sentence.

28.  According to him, upon his arrival colony officers insulted him and other detainees and beat them with truncheons. He was placed in a punishment cell. According to the authorities, the applicant disobeyed the officers’ orders upon his arrival and for this reason he was placed in a punishment cell.

29.   That evening seven colony officers took the applicant out of his cell and handcuffed him. They searched him and then kicked him to the floor and beat him with rubber truncheons. They mainly struck his heels and buttocks. He fainted several times. The officers then dragged him to the basement of the building. They hung him by his legs from the ceiling and continued striking his heels and buttocks with truncheons. He fainted three times and each time the officers poured cold water into his mouth to revive him. According to him, the ill-treatment lasted for at least an hour.

30.  After the beatings the officers took the applicant back to the punishment cell. He could not eat or drink and was mostly unconscious. He could not walk or sit because of the injuries to his heels and buttocks.

31.  At 6.30 p.m. a nurse gave him painkillers. According to her report, he had extensive bruising to his buttocks.

32.  On 4 December 2007 the applicant was examined by a doctor. According to his report, he had extensive bruising to his buttocks, and bruises on his wrists caused by handcuffs.

(b)    Events of 7 December 2007

33.  On 7 December 2007 the applicant, according to the authorities, again refused to obey the officers’ orders. They took him out of his cell and struck him with a truncheon on an open wound on his buttocks. He fell to his knees. He could not walk, and the officers forced him to crawl back to his cell. In his cell he cut his left wrist.

34.  The officers called a doctor, who bandaged his wrist and then left.

2.     Medical assistance provided to the applicant

35.  On 18 December 2007 the applicant’s injuries to his buttocks started to bleed. A surgeon was called.

36.  On 19 December 2007 he was urgently taken to prison hospital no. 15 in Volgograd. According to an extract from his medical records (no. 1909), he was found to have extensive purulent (pus-filled) wounds on both buttocks (обширные гнойные раны обеих ягодиц) complicated by blood loss, and multiple bruises on his back, shoulders, arms and legs.

37.  On 14 January 2008 he received a set of stitches for the wounds on his right buttock. The wounds on his left buttock remained purulent.

38.  The applicant remained in hospital until 22 April 2008. Following the medical treatment, the wounds on his right buttock were clean and healed. The wounds on his left buttock were still healing.

3.     Inquiry into the alleged ill-treatment

39.  On 28 December 2007 the applicant’s mother complained to a prosecutor that her son had been ill-treated by colony officers.

40.  On 4 February 2008 an investigator refused to open a criminal case into the alleged ill-treatment, referring to “explanations” by the colony officers that because the applicant had refused to comply with their orders physical force had been used against him. The investigator also referred to explanations by the applicant’s fellow inmates, who had confirmed the explanations of the colony officers. The investigator concluded that the applicant had sustained his injuries as a result of the officers’ use of physical force, handcuffs and a rubber truncheon, and also as a result of an attempt by him to commit suicide by cutting his wrists.

41.  On 22 May 2008 a senior investigator overruled the refusal as incomplete and ordered a forensic medical examination of the applicant.

42.  On 30 June 2008 the applicant underwent the examination. It appears from the report (no. 1564) that the injuries recorded by the hospital were confirmed and classified as moderate harm to health. The injuries to his buttocks could have been caused from falling over.

43.  On 3 July and 13 September 2008 the investigator refused to open a criminal case on the same grounds as before.

44.  On 18 February 2009 the applicant underwent another forensic medical examination. According to the report (no. 450), his injuries were not typical of injuries caused from falling over. Given their location and number, they had resulted from the impact of being struck at least eight times.

45.  On 19 February 2009 the investigator refused to open a criminal case on the same grounds as before.

46.  On 24 April 2009 the Traktorozavodskiy District Court dismissed a complaint lodged by the applicant against the investigator’s refusal.

47.  On 21 July 2009 the Volgogradskiy Regional Court dismissed an appeal by him against that decision. It endorsed the reasoning provided in the refusal and found that the physical force used against him had been justified.

C.    Pulyalin v. Russia, application no. 5264/10

1.     Alleged ill-treatment in 2010

(a)    Events of 10 to 15 January and 3 February 2010

48.  On 10 January 2010 the applicant, who had been convicted of a crime, was transferred to correctional colony no. 56 in the Sverdlovsk Region to serve his sentence. According to him, colony officers beat him and other new detainees immediately after their arrival. He was punched, kicked and beaten with a wooden stick. The ill-treatment continued repeatedly until 15 January 2010.

49.  According to the applicant’s medical records of 1 February 2010, he made no complaints and had no injuries.

50.  According to the applicant, he was also beaten on 3 February 2010.

51.  On 5 February 2010 he underwent a forensic medical examination. According to the report (no. 68), he had no injuries.

52.  On 9 February 2010 he was examined by a doctor in the colony. No injuries were recorded.

53.  On 16 April 2010 the applicant was examined by a forensic medical expert. According to the report dated 15 June 2010 (no. 423), he had bruising to his buttock area, which had been caused four to six days before the examination.

(b)    Inquiry into the alleged ill-treatment

54.  On 3 February 2010 the applicant complained to an investigator that he had been subjected to ill-treatment.

55.  On 11 November 2010 the investigator refused to open a criminal case. He found no evidence of the applicant being subjected to ill-treatment in January and February 2010. The forensic medical examination in April 2010 had revealed injuries that had been caused a few days before the examination, but these could not have been the injuries allegedly inflicted months earlier.

56.  The applicant appealed to the Ivdelskiy Town Court, arguing that on 5 February 2010 the expert had not recorded all his injuries.

57.  On 20 October 2010 the court dismissed his appeal as unfounded.

2.     Alleged ill-treatment in 2013

58.  In 2011 the applicant was transferred to remand prison no. 1 in Syktyvkar in the Republic of Komi for investigative activities.

(a)    Events of 28 May 2013

59.  According to the applicant, on the evening of 27 May 2013 he had an argument with one of the prison guards.

60.  At about 6 a.m. on 28 May 2013 four guards took him out of his cell. They kicked him, handcuffed him and forced him to do the splits. Officer B. punched him in his right eye. He fell and the guards twisted his arms behind his back.

61.  On the same day the applicant was examined by a duty doctor. According to his records, he had a contusion on his right eye.

(b)    Inquiry into the alleged ill-treatment

62.  On 30 May 2013 the applicant complained to his lawyer that he had been subjected to ill-treatment.

63.  On 1 July 2013 the investigator refused to open a criminal case, referring solely to “explanations” by the prison officers that the applicant had given himself the contusion on his eye.

64.  On 17 July 2013 the applicant appealed to a court.

65.  On 19 July 2013 he underwent a forensic medical examination. According to the report (no. 2/2898-13), he had no injuries.

66.  On 23 July 2013 a senior investigator overruled the investigator’s refusal of 1 July 2013 as premature. He ordered an examination of the video recording of 28 May 2013.

67.  On 5 August 2013 the Syktyvkar Town Court discontinued the proceedings into the applicant’s complaint against the refusal since it had been overruled.

68.  On 1 August 2013 the investigator again refused to open a criminal case. The decision referred to video recordings made on a camera carried by one of the guards. According to the recordings, at 6.26 a.m. on 28 May 2013 the applicant was taken out of his cell and returned at 6.33 a.m. There were no ill-treatment or injuries recorded on the video. The investigator made the same conclusions as in the refusal of 1 July 2013.

D.    Aleksandrov v. Russia, application no. 21396/11

1.     Alleged ill-treatment in February and March 2010

(a)    Events between 16 February and 8 March 2010

69.  The applicant, who had been convicted of a crime, was serving his sentence in a prison in Minusinsk in the Krasnoyarsk Region. According to him, at about 6 p.m. on 16 February 2010 prison guards caused him injuries to his head and liver, forced him to do the splits, and twisted his joints. The beatings were repeated daily until 8 March 2010.

(b)    Inquiry into the alleged ill-treatment

70.  On 16 March 2010 the applicant’s lawyer complained to an investigator that he was not allowed to meet the applicant, who had informed him that he had been ill-treated.

71.  On 18 March 2010, following the lawyer’s complaint, the investigator visited the applicant. According to his examination record (протокол освидетельствования), the applicant’s skin was torn on both sides of the groin. He had a bruise on his chest, a scar on his left eyebrow, and a broken nose.

72.  On 30 March 2010 the applicant underwent a forensic medical examination. According to the report (no. 344), he had a deviated nasal septum and deformed right little finger. He also had a scar on his left eyebrow. The injuries were classified as light harm to health. The report did not contain a description of his injuries in the groin area.

73.  On 15 April 2010 the investigator refused to open a criminal case. He referred to “explanations” by the prison guards, who had denied any use of force against the applicant, and to the expert’s conclusions that no serious injuries had been inflicted on him.

74.  On 29 April 2010 the refusal was overruled as incomplete.

75.  On 11 May 2010 the investigator again refused to open a criminal case. In addition to the explanations contained in the previous refusal, the investigator also referred to conclusions by the forensic medical expert that the applicant’s skin could not have been torn by stretching. The investigator also referred to the applicant’s fellow inmate’s explanations that the applicant did exercises in their cell, in particular the splits. He concluded that his skin could have been torn by doing this.

76.  On 30 December 2010 the Minusinskiy Town Court dismissed an appeal by the applicant against the investigator’s refusal.

77.  On 22 February 2011 the Krasnoyarsk Regional Court upheld that decision.

2.     Alleged ill-treatment in July 2010

(a)    Events of 16 July 2010

78.  According to the applicant, on 16 July 2010 O., one of the inmates, beat him and broke his nose upon the instructions of the prison administration because of his earlier complaints of ill-treatment.

(b)    Inquiry into the alleged ill-treatment

79.  On 19 July 2010 the applicant’s lawyer complained to an investigator of unlawful actions by the prison guards.

80.  According to the applicant’s prison medical notes of 19 July 2010, he had an abrasion on his nose and a haematoma. The applicant explained that they had resulted from a fight with an inmate. On 21 July 2010 he was found to have an open and non-displaced nasal fracture.

81.  According to a forensic report of 20 August 2010 (no. 885), the soft tissue of his nose was swollen. He had an abrasion and a bruise on his face.

82.  On 26 October 2010 the investigator refused to open a criminal case against the prison guards. O. refused to give explanations, invoking his right not to incriminate himself. B. explained that he had been about to leave the cell when O. had been brought there. He submitted that the applicant had made some insulting remarks about O.’s parents so O. had hit him. The investigator referred to two reports of 16 July 2010 drawn up by the duty guards, according to which O. had been transferred to the applicant’s cell. O. had hit the applicant in the face because he had insulted him. The duty guards had immediately separated them. The prison guards gave similar explanations. The investigator concluded that the applicant’s injuries had resulted from his fight with O. and that the prison officers had not committed any unlawful actions.

83.  On 28 December 2010 the Minusinskiy Town Court dismissed a complaint by the applicant against the refusal of 26 October 2010 as unfounded.

84.  On 22 February 2011 the Krasnoyarsk Regional Court upheld that decision.

E.    Seliverstov v. Russia, no. 51153/14

1.     Alleged ill-treatment on 24 December 2012

85.  The applicant, who had been convicted of a crime, was serving his sentence in correctional colony no. 4 in Orenburg. According to him, at about 9 a.m. on 24 December 2012, during a cell inspection, a colony officer asked him to hand over a pack of cigarettes. The applicant refused and the officers twisted his arms, handcuffed him and punched him in his chest. The applicant fell over. The officers punched him at least fifteen times, insulted him and broke his glasses.

86.  On the same day the applicant was examined by a doctor. He was found to have a closed fracture of his left eighth rib, and a pneumothorax (collapsed lung).

2.     The applicant’s medical documents

87.  On 26 December 2012 the applicant complained to an investigator that he had been subjected to ill-treatment.

88.  On 8 February 2013 he underwent a forensic medical examination. According to the report (no. 885), the fractured rib and pneumothorax could have been inflicted by a hard blunt object. The injuries were classified as serious harm to health. He also had two abrasions on his head that could have been inflicted up to ten days before his examination on 24 December 2012.

89.  Between 29 March 2013 and 9 January 2014 five more forensic medical examinations were carried out. The conclusions were similar to those contained in the first report.

90.  On 3 June 2014 the applicant’s lawyer requested the Main State Centre for Forensic and Criminalistics Examinations to carry out an examination of the applicant’s medical documents and to assess, among other things, whether his injuries could have resulted from him falling down the stairs. According to the report (no. 134/14) of 18 June 2014, it was impossible to establish an accurate cause for the fracture and pneumothorax, but the injuries were not considered typical of those resulting from falling down the stairs.

3.     Investigation into the alleged ill-treatment

91.  On 8 February 2013 the investigator refused to open a criminal case, referring to “explanations” by the officers that the applicant had refused to hand over a pack of cigarettes, pushed the officer and run to the stairwell. He had stumbled and fallen down the stairs.

92.  On 20 February 2013 a senior investigator overruled the refusal as incomplete.

(a)    First round of the investigation

93.  On 21 February 2013 the investigator opened a criminal case into abuse of power.

94.  On 31 January 2014 the investigator terminated the investigation for lack of a criminal event (отсутствие события преступления). The investigator referred to statements by the applicant’s fellow inmates that on the night of 24 December 2014 they had been drinking alcohol and that the injuries had resulted from his own negligent actions.

95.  Meanwhile, on 6 February 2014 the investigator opened a criminal case against the applicant for making false accusations against the colony officers.

96.  On 4 April 2014 the Dzerzhinskiy District Court dismissed an appeal by the applicant against the decision of 31 January 2014 to terminate the criminal case as unfounded.

97.  On 23 May 2014 the Orenburg Regional Court quashed that decision as incomplete.

98.  On 16 June 2014 the Dzerzhinskiy District Court declared the decision of 31 January 2014 unlawful.

(b)    Second round of the investigation

99.  On 10 November 2014 the investigator terminated the investigation. He referred to the initial statements of the officers that the applicant, who had been drunk, had refused to hand over his cigarettes. They had not used any force against him. They had tried to grip his hands, but he had pushed them and then fallen down the stairs when he had attempted to run away.

100.  The investigator cited the conclusions of the forensic medical report of 29 March 2013 and referred to statements by the colony doctors that the applicant had been drunk on 24 December 2012. Lastly, the investigator also referred to conclusions of an internal inquiry that the applicant’s injuries had resulted from his own actions due to the consumption of alcohol and that the use of force and handcuffs had been lawful.

101.  Meanwhile, on 13 March 2015 the applicant was convicted of making false accusations against the officers. The case file does not contain a copy of the judgment.

102.  On 17 June 2015 the Leninskiy District Court dismissed a complaint by the applicant against the investigator’s decision as unfounded, referring to the conviction of 13 March 2015.

103.  On 26 August 2015 the Orenburg Regional Court upheld that decision.

4.     Other relevant information

104.  On 16 March 2016 the applicant died. By a letter of 27 June 2016 the applicant’s mother, Ms Yakimova, informed the Court that she wished to maintain the application.

105.  On 8 May 2019 Ms Yakimova died. By a letter of 25 June 2019 Ms Yakimova’s daughter, Ms Komarova, informed the Court that she wished to maintain the application and pursue it.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

106.  For the relevant provisions of domestic law on the procedure concerning the use of force in correctional facilities, see Dedovskiy and Others v. Russia (no. 7178/03, §§ 62-67, ECHR 2008).

THE LAW

I.         JOINDER OF THE APPLICATIONS

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

II.      PRELIMINARY CONSIDERATIONS IN APPLICATION No. 51153/14

108.  The Court notes that the applicant, Mr Seliverstov, died in March 2016, after lodging his application with the Court (see paragraph 104 above). His mother, who expressed the wish to take his place in the proceedings, died in May 2019 (see paragraph 105 above). Ms Komarova, the applicant’s sister, confirmed that she wished to continue the application.

109.  The Government objected and submitted that Ms Komarova had no legitimate interest in pursuing the application, and that the rights enshrined in Article 3 of the Convention were eminently personal and non‑transferable.

110.  The Court notes that it normally permits the next of kin to pursue an application, provided they have a legitimate interest, where the original applicant died after lodging the application with the Court (see Murray v. the Netherlands [GC], no.10511/10, § 79, 26 April 2016). The Court has previously ruled that in applications concerning Article 3 of the Convention, which protect the fundamental values of every democratic society, there exists a strong presumption of a legitimate or sufficient interest of an applicant’s next of kin in continuing the case (see Magnitskiy and Others v. Russia, nos. 32631/09 and 53799/12, § 176, 27 August 2019, with further references).

111.  Having regard to the subject matter of the application and all the information in its possession, the Court considers that the applicant’s sister, Ms Komarova, has a legitimate interest in pursuing the application and that she thus has the requisite locus standi under Article 34 of the Convention. It therefore dismisses the Government’s preliminary objection.

III.   ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION on account of alleged ill-treatment

112.  The applicants complained under Article 3 of the Convention that they had been subjected to ill‑treatment by State officials and that the State failed to conduct an effective domestic investigation into the relevant incidents. Mr Pulyalin, Mr Aleksandrov and Mr Seliverstov also complained under Article 13 of the Convention that they had had no effective remedy in respect of their complaints of ill-treatment. The relevant parts of the Convention provisions read as follows:

Article 3

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

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority ...”

A.    Admissibility

1.     Zagaynov and Others v. Russia, application no. 5666/07

(a)    Alleged ill-treatment of Mr Golovin and Mr Vecherov

113.  The Court notes that two applicants, Mr Golovin and Mr Vecherov, alleged that they had been beaten by officers on 20 December 2005 and had sustained injuries. However, the case file contains no indication of this. In particular, according to their medical notes containing the history of their medical treatment in the colony, the applicants did not seek any medical assistance on 20 December 2005 (see paragraph 21 above). The applicants did not explain why their alleged injuries had not been recorded.

114.  It appears from the case file that forensic medical examinations were carried out in respect of detainees against whom the authorities had used a certain amount of physical force. The examination did not reveal any injuries on Mr Vecherov. It appears that Mr Golovin did not undergo an examination (see paragraph 24 above). He did not submit that there had been any obstacles preventing such an examination.

115.  Furthermore, with respect to Mr Golovin and Mr Vecherov, the officers drafted no reports on the use of force, because, according to the authorities, reports were drafted only in respect of detainees who had disobeyed officers’ orders and against whom physical force had been used (see paragraph 23 above). The applicants did not challenge the authorities’ version of events.

116.  Having regard to the material in the case file, the Court finds that Mr Golovin and Mr Vecherov failed to provide prima facie evidence in support of their allegations of ill-treatment by State officials on 20 December 2005 during the cell inspection.

117.  Their complaint is therefore manifestly ill‑founded and must be rejected in accordance with Article 35 § 3 of the Convention.

(b)    Alleged inability to wear winter clothes during the cell inspection

118.  The applicants complained that during the cell inspection the applicants had been forced to go outside in the open air without being properly dressed, stand against the wall with their legs spread apart and feet back, and to remain in this position for two hours. In their view, such treatment amounted to inhuman and degrading treatment proscribed by Article 3 of the Convention.

119.  The Court considers that the applicants did not provide prima facie evidence in support of their allegations. In this connection, it refers to the finding of the Yoshkar-Ola Town Court that the applicants’ complaints were unfounded (see paragraph 25 above). The Court therefore finds the complaint manifestly ill‑founded and rejects it in accordance with Article 35 § 3 of the Convention.

2.     Pulyalin v. Russia, application no. 5264/10

120.  As regards the ill-treatment that allegedly took place between 10 and 15 January and on 3 February 2010, the Court observes that a prison doctor examined the applicant on 1 and 9 February 2010. The applicant also underwent a forensic medical examination on 5 February 2010. None of his examinations revealed any injuries (see paragraphs 49, 51 and 52 above).

121.  The Court notes that the applicant’s only injuries were recorded on 16 April 2010 during his forensic medical examination. According to the report, they were inflicted up to six days earlier. These injuries were seemingly not inflicted in January and February 2010 (see paragraph 53 above). The applicant did not complain that he had been ill-treated on any other occasions than 10 and 15 January and 3 February 2010. Nor did he complain about his injuries recorded on 16 April 2010.

122.  As to the applicant’s allegation that the forensic medical expert failed to record his injuries in January and February 2010 (see paragraph 56 above), the Court notes that it was not provided with any evidence or indications which would discredit the expert’s reliability. The Court also notes that neither before nor after the forensic medical examination were any injuries recorded by a prison doctor.

123.  In such circumstances, the Court concludes that the applicant’s allegation of ill-treatment in January and February 2010 is therefore manifestly ill‑founded and must be rejected in accordance with Article 35 § 3 of the Convention.

3.     Aleksandrov v. Russia, application no. 21396/11

124.  Mr Aleksandrov complained that he had been ill-treated on 16 July 2010 by his inmate O. upon the colony administration’s instructions, and that the authorities were thus directly responsible for the ill-treatement.

125.  The Court reiterates that the absence of any direct State involvement in acts of violence that meet the condition of severity such as to engage Article 3 of the Convention does not absolve the State from its obligations under this provision (see Gjini v. Serbia, no. 1128/16, § 77, 15 January 2019). In the present case, the Court notes that the applicant sustained injuries as a result of his altercation with O. (see paragraph 78 above). According to the conclusions of the internal inquiry, O. hit the applicant after the latter had insulted his parents. This version was supported by the explanations of another inmate, B., and also by officers’ reports drawn up immediately after the incident. Colony officers questioned by the investigator corroborated this version of events (see paragraph 82 above). While the applicant argued that the authorities had been behind the O.’s actions, the Court observes that there is no evidence in the file capable of founding an “arguable claim” of any involvement of State officers in this incident, or indication that the fight between the applicant and O. had been incited, or in any way, permitted by the authorities (see Premininy v. Russia, no. 44973/04, § 70, 10 February 2011).

126.  The applicant’s allegation that O. acted on the administration’s instructions is thus not supported by any evidence. The Court therefore finds his complaint manifestly ill‑founded and rejects it in accordance with Article 35 § 3 of the Convention.

4.     Other complaints

127.  The Court notes that the remaining complaints are neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.

B.     Merits

1.     The parties’ submissions

128.  The applicants maintained their complaints.

129.  The Government maintained the conclusions of the domestic inquiries. In the case of Mr Zagaynov and the other applicants in application no. 5666/07, relying on the Court’s judgment in Maryin v. Russia (no. 1719/04, 21 October 2010), the Government also submitted that the use of rubber truncheons had not violated Article 3 of the Convention.

2.     The Court’s assessment

(a)    Establishment of facts

130.  In the context of detainees, the Court reiterates that persons in custody are in a vulnerable position and that the authorities are under a duty to protect their physical well-being. With respect to a person deprived of his liberty, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the Convention (see Habimi and Others v. Serbia, no. 19072/08, § 86, 3 June 2014, with further references).

131.  The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence. In assessing the evidence, the Court has generally applied the standard of proof “beyond reasonable doubt”. However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII).

132.  The Court observes that at the time of the events, the applicants were serving sentences in penal facilities. At different times during their detention in those facilities, they sustained injuries of various degrees, as recorded by forensic medical experts, penal facilities or medical institutions (see paragraphs 16-20, 31, 32, 36, 61, 71, 72, 86, 88 and 90 above).

(i)     Zagaynov and Others v. Russia (no. 5666/07)

133.  It is not in dispute that on 20 December 2005 officers of a special‑purpose unit carried out a cell inspection in the facility where Mr Zagaynov, Mr Kuznetsov, Mr Yakovlev, Mr Kondratyev and Mr Maltsev were being held. It is likewise uncontested that the officers used rubber truncheons against them (see paragraphs 12 and 13 above).

134.  The Court does not agree with the Government that the use of rubber truncheons did not breach Article 3 of the Convention and their reference to the Maryin case (cited above) in that regard. The Court notes that in Maryin a prison guard used a rubber truncheon in response to unruly behaviour by the applicant, who pushed and grabbed the officer concerned. The altercation took place in a narrow doorway and other officers were not in a position to assist the officer to calm the applicant down (ibid., § 42-43). In the present case, a group of special-purpose unit officers equipped with rubber truncheons entered the applicants’ cells and hit them with a view to forcing them to obey. In the absence of any indication as to how exactly the applicants in question resisted, the force used by the officers against unarmed inmates cannot be regarded as proportionate.

135.  The Court observes that the reports compiled in respect of each applicant contained only a general reference to the applicants’ alleged resistance (see paragraph 11 above) and no details on how they resisted and attempted to hit the officers.

(ii)    Gayazov v. Russia (no. 12892/08)

136.  The Court notes that the day after admission to correctional colony no. 9, the applicant was found to have serious injuries to his buttocks (see paragraph 32 above). The authorities did not dispute that colony officers used a rubber truncheon on the applicant for his alleged disobedience (see paragraph 40 above).

137.  Firstly, no reports on the use of rubber truncheons were compiled, as was the case for Mr Zagaynov and the other applicants in application no. 5666/07, to support the authorities’ allegations that a truncheon had been used because of the applicant’s disobedience. It is also unclear what orders the applicant did not obey, as alleged by the authorities. Secondly, the applicant’s injuries, for which he received treatment at the hospital for four months, indicate that the force used against him was obviously disproportionate, even if it was applied in respect of his alleged unruly behaviour.

(iii)  Pulyalin v. Russia (no. 5264/10)

138.  The Court notes that a prison doctor recorded a contusion on the applicant’s right eye on the day of his alleged confrontation with prison officers in May 2013 (see paragraph 61 above). The Government did not provide any explanation for his injury. They only referred to the conclusions of the inquiry that the applicant had given himself the contusion (see paragraph 63 above), without referring to any evidence to support it. In these circumstances, the Court finds the applicant’s allegations of ill‑treatment by the prison officers credible.

(iv)  Aleksandrov v. Russia (no. 21396/11)

139.  The Court observes that an investigator recorded the applicant’s injuries following a complaint by his lawyer of ill-treatment. Some of his injuries, in particular the broken nose and scar on his left eyebrow, were later confirmed by a forensic medical expert (see paragraph 72 above). Neither the authorities nor the Government provided any explanation for these injuries.

140.  As to the applicant’s alleged injuries in the groin area, the Court notes at the outset that the applicant was examined by the forensic medical expert four days after the alleged ill-treatment. The expert did not mention these injuries in his report of 30 March 2010 (see paragraph 72 above). However, in the refusal to open a criminal case dated 11 May 2010, the investigator mentioned the injuries and referred to the conclusions of the expert about the causes of them (see paragraph 75 above). It follows that the expert knew about them, but for some reason did not mention them in report no. 344. The Court considers the expert’s conclusions that the applicant’s skin was torn as a result of him having done the splits speculative and unreliable. In the absence of any other plausible explanation, the Court finds the applicant’s allegations that the injuries resulted from his ill-treatment credible.

(v)    Seliverstov v. Russia (no. 51153/14)

141.  The Court notes the conclusions of the last decision to discontinue the investigation of 10 November 2014 that officers did not apply any force as they did not succeed in gripping the applicant’s arms and that the applicant fell after his attempt to run away (see paragraph 99 above). However, in the same decision the investigator referred to the conclusions of the internal inquiry that the officers handcuffed the applicant and used some force against him, although it was unclear to what degree (see paragraph 100 above).

142.  This being so, the Court cannot accept the investigator’s view that the applicant sustained his injuries as a result of his attempt to run away. Furthermore, it notes the conclusion of the last forensic medical examination, which stated that a fractured rib and pneumothorax were not typical of injuries resulting from falling down the stairs (see paragraph 90 above).

143.  In the absence of a plausible explanation on the part of the authorities or the Government for the applicant’s injuries, the Court accepts the applicant’s version of events and finds his allegations of ill-treatment credible.

(vi)  Conclusion

144.  In view of the foregoing and given the lack of plausible and convincing explanations from the Government for the applicants’ injuries, the Court finds it established to the standard of proof required in the Convention proceedings that the applicants were subjected to the treatment of which they complained.

(b)    Assessment of the severity of ill-treatment

145.  The Court reiterates that in order to determine whether a particular form of ill-treatment should be qualified as torture, it must have regard to the distinction, embodied in Article 3, between this notion and that of inhuman or degrading treatment. It appears that it was the intention that the Convention should, by means of this distinction, attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering. The Court has previously had before it cases in which it has found that there has been treatment which could only be described as torture (see Aksoy v. Turkey, 18 December 1996, § 64, Reports of Judgments and Decisions 1996-VI; Menesheva v. Russia, no. 59261/00, §§ 60-62, ECHR 2006‑III; and Dedovskiy and Others v. Russia, no. 7178/03, § 84, ECHR 2008 (extracts)).

146.  The Court notes that Mr Gayazov (no. 12892/08), Mr Zagaynov and the other applicants in application no. 5666/07 were hit with rubber truncheons. It cannot see anything which might have prompted the need to use rubber truncheons against them. Even though some of them appear to have disobeyed or resisted the officers’ orders, no attempt was made to apprehend or restrain them (see, for similar reasoning, Dedovskiy and Others, cited above, § 82).

147.  The Court observes that the use of rubber truncheons against the applicants was retaliatory in nature. The purpose of that treatment was to debase them and drive them into submission. In addition, the truncheon blows must have caused them intense mental and physical suffering, even though they did not result in any long-term damage to health. Having regard to the injuries inflicted to Mr Zagaynov, Mr Kuznetsov, Mr Yakovlev, Mr Kondratyev and Mr Maltsev (see paragraphs 16-20 above), the Court considers that they were subjected to inhuman and degrading treatment (see Antipenkov v. Russia, no. 33470/03, § 60-61, 15 October 2009, and Rudakov v. Russia, no. 43239/04, § 55-56, 28 October 2010).

148.  Having regard to Mr Pulyalin’s injuries (no. 5264/10) in the form of the contusion on his right eye (see paragraph 61 above), the Court finds that he was subjected to inhuman and degrading treatment.

149.  In the case of Mr Gayazov, the injuries resulted in long-term damage to his health. He suffered from extensive and serious injuries to his buttocks, combined with a loss of blood. It took at least four months for the injuries to heal (see paragraph 38 above). In these circumstances, the Court finds that Mr Gayazov was subjected to torture (see Dedovskiy and Others, cited above, § 85, and Vladimir Romanov v. Russia, no. 41461/02, § 70, 24 July 2008).

150.  As to Mr Aleksandrov (no. 21396/11) and Mr Seliverstov (no. 51153/14), the Court notes that, apart from bruises, abrasions and bone deformities, the applicants sustained skin tears (see paragraph 71 above), a fractured rib and a pneumothorax (see paragraph 88 above). The Court finds that the ill-treatment inflicted on them in a detention context must have caused severe physical and mental suffering. In such circumstances, the Court finds that Mr Aleksandrov and Mr Seliverstov were subjected to torture.

151.  In view of the above, the Court finds that there has been a violation of the substantive aspect of Article 3 of Convention in respect of Mr Zagaynov, Mr Kuznetsov, Mr Yakovlev, Mr Kondratyev, Mr Maltsev, Mr Gayazov, Mr Pulyalin, Mr Aleksandrov and Mr Seliverstov.

(c)    Adequacy of the investigations

 

153.  The Court observes that in the cases of Mr Pulyalin and Mr Aleksandrov, the applicants’ credible allegations that their injuries resulted from violence on the part of the colony officers were dismissed by the investigating authorities as unfounded based mainly on the statements of those officers denying any ill-treatment of the applicants (see paragraphs 63, 73 and 75 above). In the case of Mr Seliverstov, after refusing to open a criminal case into the alleged ill-treatment the authorities opened an investigation, which was eventually terminated for lack of a criminal event (see paragraph 99 above).

154.  The Court considers that the authorities did not take all reasonable steps available to them to secure and examine the evidence and did not make a serious attempt to find out what had happened. In particular, in the case of Mr Pulyalin, the investigator referred to the video recorded on the day of the alleged ill-treatment. The video clearly lacked any recording between 6.26 a.m., when the applicant was taken out of his cell, and 6.33 a.m., when he was returned, that is, the time of the alleged ill-treatment (see paragraph 68 above). The investigator did not explain the lack of video recordings.

155.  The Court further notes that the investigators failed to explain Mr Aleksandrov’s injuries, such as the broken nose and scar on his left eyebrow, recorded by a forensic medical expert. He merely concluded that the applicant had not sustained any serious injuries (see paragraph 73 above). In the case of Mr Seliverstov, the Court has already pointed out the discrepancies contained in the investigator’s decision of 10 November 2014 (see paragraph 141 above).

156.  In addition, as regards the quality of the medical evidence, the Court reiterates that proper medical examinations are essential safeguards against ill-treatment (see Akkoç v. Turkey, nos. 22947/93 and 22948/93, §§ 55 and 118, ECHR 2000‑X). In this connection, the Court observes that, in some of the cases, the forensic medical examinations were conducted with a significant delay after the events or after the applicants had complained of ill‑treatment. Mr Pulyalin and Mr Seliverstov were examined more than a month after the alleged ill-treatment (see paragraphs 65 and 88 above). Two weeks passed in the case of Mr Aleksandrov (see paragraph 72 above) and six months in the case of Mr Gayazov (see paragraph 42 above). By the time the applicants were examined, precious time had been lost and it was impossible to determine the cause or origin of their injuries (see Tangiyev v. Russia, no. 27610/05, § 61, 11 December 2012).

157.  Furthermore, the Court notes that in respect of Mr Gayazov (no. 12892/08) and Mr Zagaynov and the other applicants in application no. 5666/07, the authorities failed to demonstrate that the physical force used against the applicants had been made strictly necessary by their conduct. Neither in the reports on the use of rubber truncheons (see paragraphs 11, 12 and 13 above) nor in the refusals to open a criminal case (see paragraphs 23, 25, 40, 45, 46 and 47 above) did the authorities or domestic courts assess the proportionality of the force used.

158.  In view of the foregoing, the Court finds that the State failed to carry out an effective investigation into the applicants’ credible allegations of ill-treatment at the hands of State officers. Accordingly, there has been a violation of the procedural aspect of Article 3 of the Convention.

(d)    Article 13 of the Convention

159.  In the light of the Court’s findings on Article 3 of the Convention, the Court considers that it is not necessary to examine whether there has also been a violation of Article 13 of the Convention in respect of Mr Pulyalin, Mr Aleksandrov and Mr Seliverstov.

IV.   ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF A LACK OF MEDICAL ASSISTANCE

160.  Mr Gayazov, relying on Article 3 of the Convention, complained that after the ill-treatment on 3 and 7 December 2007 the medical staff of the colony had not provided him with adequate medical assistance.

A.    Admissibility

1.     The parties’ submissions

161.  The Government firstly submitted that the applicant had failed to exhaust domestic remedies in respect of his complaint of a lack of medical assistance. Referring to the case of Vladimir Sokolov v. Russia (no. 31242/05, §§ 70-71, 29 March 2011), they argued that since the alleged lack of medical assistance during his detention was not a structural problem, he should have raised this complaint before the national courts. Secondly, they argued that the applicant had been provided with the requisite medical treatment.

162.  Mr Gayazov maintained the complaint.

2.     The Court’s assessment

163.  In assessing the Government’s argument that the applicant failed to exhaust the available avenues of domestic protection regarding the allegedly inadequate medical treatment, the Court notes that it has consistently held that the remedies proposed by the Government do not satisfy the relevant criteria (see Reshetnyak v. Russia, no. 56027/10, §§ 65-73, 8 January 2013, and Maylenskiy v. Russia, no. 12646/15, § 44, 4 October 2016). The Court therefore rejects the Government’s non-exhaustion objection.

B.     Merits

164.  The Court notes that after the applicant’s ill-treatment on 3 December 2007, the nurse recorded extensive haematomas on the applicant’s buttocks and gave him painkillers (see paragraph 31 above). The following day he was examined by a doctor. The Court notes that no significant medical assistance was provided to him on 3 December 2007 to treat his injuries.

165.  Furthermore, on 7 December 2007 the doctor treated the applicant’s wounds on his wrists, which he had inflicted himself (see paragraphs 33 and 34 above), while the injuries to his buttocks, which apparently became infected owing to the lack of medical assistance, were not treated at all.

166.  The Court notes that the applicant was only urgently taken to a hospital on 19 December 2007 when his wounds had started to bleed, sixteen days after he had been ill-treated for the first time (see paragraph 36 above).

167.  The foregoing considerations are sufficient to enable the Court to conclude that the authorities failed to meet their responsibility to ensure that the applicant received adequate medical care between 3 and 19 December 2007 and that such a deliberate and excessive delay in treatment, coupled with the seriousness of his injuries, amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention.

168.  There has accordingly been a violation of Article 3 of the Convention on account of the lack of medical assistance.

V.     APPLICATION OF ARTICLE 41 OF THE CONVENTION

169.  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.”

170.  The amounts claimed by the applicants in respect of pecuniary, non‑pecuniary damage and costs and expenses are indicated in the appended table.

A.    Damage

171.  Mr Gayazov provided receipts for medication that he had to purchase as a result of his ill-treatment, amounting to 17,027.40 Russian roubles (RUB - about 210 euros (EUR)) in support of his claim for pecuniary damage. He did not provide receipts in support of his claims for pecuniary damage amounting to EUR 9,600 for medical treatment, which, according to him, he had to undergo.

172.  Mr Aleksandrov provided receipts for medical treatment amounting to RUB 42,000 (about EUR 545) in support of his claim for pecuniary damage.

173.  The Government contested the applicants’ claims as unfounded.

B.    Costs and expenses

174.  Mr Zagaynov and the other applicants in no. 5666/07 did not submit any documents to support their claims for costs and expenses.

175.  The Court granted legal aid to Mr Gayazov and Mr Pulyalin amounting to EUR 850 each. Mr Gayazov, Mr Pulyalin and Mr Seliverstov provided legal contracts with their representatives.

176.  Mr Aleksandrov did not provide a contract on legal services with his representative or other documents in support of his claims for cost and expenses.

177.  The Government contested the applicants’ claims as unfounded and excessive.

C.    The Court’s assessment

178.  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.

179.  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).

180.  Having regard to the conclusions and principles set out above and the parties’ submissions, and taking into account legal aid granted to Mr Gayazov and Mr Pulyalin, the Court awards the applicants the amounts detailed in the appended table, plus any tax that may be chargeable to them on those amounts.

181.  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.      Holds that Ms Komarova has standing under Article 34 of the Convention to continue the proceedings in Mr Seliverstov’s stead (no. 51153/14);

3.      Declares the complaint of Mr Golovin and Mr Vecherov (no. 5666/07) concerning alleged ill-treatment on 20 December 2005 inadmissible;

4.      Declares the complaint by applicants in no. 5666/07 concerning alleged ill-treatment on account of an inability to wear winter clothes during the cell inspection inadmissible;

5.      Declares the complaint of Mr Pulyalin (no. 5264/10) concerning alleged ill-treatment between 10 and 15 January 2010 and on 3 February 2010, and the complaint of Mr Aleksandrov (no. 21396/11) concerning alleged ill-treatment on 16 July 2010 inadmissible, and the remainder of the applications admissible;

6.      Holds that there has been a violation of Article 3 of the Convention under its substantive aspect in respect of Mr Zagaynov, Mr Kuznetsov, Mr Yakovlev, Mr Kondratyev, Mr Maltsev (no. 5666/07) and Mr Pulyalin (no. 5264/10) on account of the inhuman and degrading treatment to which they were subjected, and in respect of Mr Gayazov (no. 12892/08), Mr Aleksandrov (no. 21396/11) and Mr Seliverstov (no. 51153/14) on account of the torture to which they were subjected;

7.      Holds that there has been a violation of Article 3 of the Convention under its procedural aspect in respect of Mr Zagaynov, Mr Kuznetsov, Mr Yakovlev, Mr Kondratyev, Mr Maltsev (no. 5666/07), Mr Gayazov (no. 12892/08), Mr Pulyalin (no. 5264/10), Mr Aleksandrov (no. 21396/11) and Mr Seliverstov (no. 51153/14);

8.      Holds that there has been a violation of Article 3 of the Convention in respect of Mr Gayazov (no. 12892/08) on account of the lack of medical assistance in the colony between 3 and 19 December 2007;

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

10.  Holds

(a)  that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, plus any tax that may be chargeable to the applicants, 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 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;

11.  Dismisses the remainder of the applicants’ claims for just satisfaction.

Done in English, and notified in writing on 15 June 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 {signature_p_2}

Olga Chernishova                                                                    Darian Pavli
Deputy Registrar                                                                       President

Appendix

List of cases