European Court of Human Rights

 

 

THIRD SECTION

CASE OF TEMNIKOV AND OTHERS v. RUSSIA

(Applications nos. 39169/07 and 6 others –
see appended list)

 

 

 

 

JUDGMENT

STRASBOURG

19 October 2021

 

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

In the case of Temnikov and Others v. Russia,

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

          Peeter Roosma, President,
          Dmitry Dedov,
          Andreas Zünd, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the applications (nos. 39169/07 and 6 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 seven 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 28 September 2021,

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

THE FACTS

1.  The applicants are Russian nationals, who between 2006 and 2012 were arrested on suspicion of having committed various crimes in different regions of Russia, save for Ms Rakhmanova, who was a witness in a criminal case. The applicants alleged, among other things, that they had been ill-treated by the State officials. The domestic authorities refused to institute criminal proceedings in this connection. Some of the applicants were later convicted on the basis of their confession statements, allegedly extracted under duress.

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

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

I.         Temnikov v. Russia, no. 39169/07

A.    Alleged ill-treatment

4.  On 19 October 2006 around 2 a.m. the applicant was arrested by the police officers. According to the applicant, right after his apprehension the police officers beat him with an aim of forcing him to confess to three counts of theft. The applicant was then brough to the Toksimo police station, where he signed a confession statement, allegedly out of fear of further beatings.

5.  On 20 October 2006 the applicant was admitted to a hospital, where he underwent a medical examination. The record of this examination indicated an oedema of tissues and a haemorrhage of the nose, haemorrhages in the back, a bruise on the back of the neck, and an oedema of the right hand. After an X-ray examination, apparently conducted on the same day, the applicant was diagnosed with a bone fracture of the right hand.

B.    Official inquiry into the alleged ill-treatment

6.  On 24 November 2006 the applicant complained to the District Prosecutor about his ill-treatment by the police officers.

7.  On 2 December 2006 an investigator refused to institute criminal proceedings against the police officers due to lack of indication of crime. On 5 February 2007 this refusal was annulled by a supervising officer.

8.  Between February and March 2007 the investigators issued at least two decisions refusing to institute criminal proceedings. All of these decisions were annulled by a supervising officer.

9.  On an unspecified date the applicant’s mother complained to a court about the refusal to institute criminal proceedings of 24 February 2007, and of the Prosecutor’s failure to inform the applicant about the developments of the investigation. On 3 April 2007 the District Court dismissed the complaint, since by the time the decision of 24 February 2007 had already been annulled. On 15 May 2007 the Supreme Court of the Republic of Buryatiya examined the appeal against the District Court’s decision and discontinued the proceedings as by the time the applicant had already been convicted (see paragraph 10 below).

10.  On 6 February 2007 the Muyskiy District Court of the Buryatiya Republic found the applicant guilty of a theft and of an attempted theft. On 5 April 2007 the applicant’s conviction was upheld by the Supreme Court of Buryatiya. With regard to the applicant’s complaint about his ill-treatment, the Supreme Court referred to the refusal to open criminal proceedings of 2 December 2006 and concluded that the applicant’s allegations were unfounded.

II.      Babichev v. Russia, no. 30279/09

A.    The applicant’s alleged ill-treatment

11.  On 14 November 2008 the applicant was arrested at his apartment in Engels on suspicion of having committed a robbery.

12.  After the applicant’s arrest the police officers brought him to the police station. According to the applicant, at the police station the police officers twisted his hands behind his back and hit his head against the walls several times. They then put a plastic bag over the applicant’s head, pushed him to the floor and punched and kicked him all over his body, thighs and back. Allegedly, they also took his belt, tied his hands behind his back with it, and lifted him, twisting his hands.

B.    Medical examinations of the applicant

13.  On 14 November 2008 the applicant was brought to the temporary detention facility of the Engels municipal district (“the IVS”) where he underwent a medical examination. The IVS paramedics recorded the following injuries: haematomas on the hips, abrasions on the back, oedemas and haematomas of the wrist joints of both hands.

14.  On 15 November 2008 the applicant was taken to the traumatology centre of the Bureau of the Forensic Medical Examination of Engels, where at 3.45 p.m. the following injuries were recorded on his body: bruises of the back, bruises of the front abdominal wall, bruises of the wrist joints of both forearms and back side of the left hip.

15.  On the same day the investigator ordered to conduct the applicant’s forensic medical examination in relation to his ill-treatment complaint. On 17 November 2008 the applicant’s medical records were examined by a forensic medical expert, who recorded the following injuries: bruises on the left hip, left forearm, abrasions on the left knee joint and right shoulder-blade. The expert concluded that these injuries could have been inflicted by blunt objects three hours before the applicant’s examination in the traumatology centre, which took place between 3.45 p.m. and 4.27 p.m. on 15 November 2008.

C.    Official inquiry into the alleged ill-treatment

16.  On 15 November 2008 the applicant was brought to the Engels District Court of the Saratov Region for the extension of his arrest. During the hearing he complained about his ill-treatment. The court, upon the prosecutor’s request, ordered to conduct a forensic medical examination.

17.  On 27 November 2008 an investigator refused to institute criminal proceedings in respect of the applicant’s complaint. The investigator found that (1) the applicant had had no visible injuries at the moment of his arrest on 14 November 2008, (2) the police officers had not used physical force against the applicant, (3) the applicant alleged that he had been beaten between 10 a.m. and 11.30 a.m. on 14 November 2008, whereas according to the forensic medical expert the applicant’s injuries had been caused between 12.45 p.m. and 3.45 p.m. on 15 November 2008.

18.  On 30 January 2009 the refusal was annulled by a supervising officer, who ordered to conduct an additional inquiry.

19.  On 1 February 2009 the investigator issued a new refusal to institute criminal proceedings. The investigator reiterated that according to the conclusions of the medical examination, the applicant received his injuries after the alleged time period, and concluded that the applicant could have injured himself while being detained in the IVS.

20.  The applicant appealed against the refusal of 1 February 2009 to the Engels District Court. On 20 July 2009 the District Court dismissed the complaint, as by the time the applicant had already been convicted (see paragraph 24 below).

21.  On 30 September 2009 the Saratov Regional Court upheld the decision of the District Court.

D.    Criminal proceedings against the applicant

22.  On 30 January 2009 the applicant was convicted by the District Court of several counts of robbery. The applicant did not appeal against the conviction.

III.   Rakhmanova v. Russia, no.41151/09

A.    Events preceding the applicant’s apprehension

23.  In September 2007 the applicant was interviewed at the Zelenodolskiy Investigation Department of the Republic of Tatarstan as a witness in a criminal case initiated against her friend. Suspecting that her witness statement was not accurately recorded by the investigator, the applicant’s lawyer requested a new interview to be held by another investigator in charge of the criminal case.

B.    Applicant’s alleged ill-treatment

24.  On 18 October 2007 at around 3 p.m., in Kazan, the applicant was approached by two men wearing plain clothes. They introduced themselves as police officers from the Vasilyevo village and invited the applicant to come to the Zelenodolskiy District Police Department (the “ROVD”) for an informal conversation. According to the applicant, after she refused and suggested to contact her lawyer, one of the officers dragged her into a car. She attempted to call her lawyer or mother, but an officer took away her mobile phone.

25.  The applicant was eventually brought to the ROVD where police officers demanded her to withdraw her request for a new interview. According to the applicant, after two hours of verbal pressure, one of the officers struck her in the eyes with a roll of magazine paper while another one punched her twice in the back of her head. The applicant agreed to sign a statement waiving her right to be assisted by a lawyer. According to the applicant, after that the investigator provided her with a text that she had to read out slowly, imitating an verbal statement to the investigator. The applicant complied and read out the fresh statement, which was recorded by the police. At 9.30 p.m. the applicant was released from the ROVD.

C.    Medical examinations of the applicant’s injuries

26.  A couple of hours after her release the applicant was examined by a nurse at the local traumatology unit who preliminary diagnosed her with the brain concussion. The applicant was also examined by an ophthalmologist, who diagnosed the eyeball contusion.

27.  On 19 October 2007 the applicant was examined by a doctor at the Medical Emergency Centre of Kazan who confirmed the brain concussion.

28.  On the same date the applicant was also examined by a forensic expert. In her report the expert concluded that the applicant suffered from brain concussion and light contusion of the right eyeball, while finding no visible signs of bodily injuries.

29.  On 8 November 2007 the investigator ordered to conduct a forensic medical examination. The parties did not submit a copy of such examination. According to the applicant, she did not know about it and was not present during the examination, even though the record states that she was examined in person. According to the parties, the record indicated that the applicant did not have any visible signs of injuries, and that the diagnosed brain concussion could not be confirmed due to contradictory medical documents. The diagnosed eyeball contusion was apparently not connected with the applicant’s injuries.

30.  On 25 February 2008 at the investigator’s request a new forensic report was issued. The expert concluded that the applicant had no visible signs of injuries and that the medial documents of 19 October 2007 also did not confirm any injuries. The diagnosis of the eyeball contusion could not be evaluated forensically due to absence of visible injuries and the lack of relevant medical documents.

D.    Official inquiry into the alleged ill-treatment

31.  Between October and November 2007 the applicant and her parents lodged multiple complaints about the ill-treatment during her detention at the ROVD on 18 October 2007.

32.  On 8 November 2007 the deputy chief of the Zelenodolskiy Investigation Department refused to institute criminal proceedings in respect of the applicant’s complaint.

33.  The applicant challenged this decision under Article 125 of the Code of Criminal Procedure. Her complaint was dismissed on 10 December 2007 by the Zelenodolskiy Town Court. The Supreme Court of the Republic of Tatarstan granted the applicant’s appeal on 22 January 2008 and annulled the Town Court’s decision. On 11 February 2008 the latter found the decision of the Zelenodolskiy Investigation Department of 8 November 2007 unlawful.

34.  On 1 March 2008 deputy chief of the Zelenodolskiy Investigation Department delivered a new decision refusing to open criminal proceedings on account of the alleged ill-treatment.

35.  The applicant appealed against the refusal, and on 17 December 2008 the Zelenodolskiy Town Court upheld the decision not to institute criminal proceedings. The court’s conclusion was based on the forensic report of 25 February 2008 (see paragraph 30 above).

36.  On 3 February 2009 the Supreme Court of the Republic of Tatarstan upheld the Town Court’s Decision.

IV.   Mubarakshin v. Russia, no. 20808/10

A.    Events preceding the applicant’s apprehension

37.  On 7 August 2005 the applicant’s wife was found dead in the Vysokogorskiy District of the Republic of Tatarstan. On 15 August 2005 Deputy Prosecutor of the Vysokogorskiy District refused to institute criminal proceedings concerning her death, having found no injury or trace of violence on her body.

B.    Applicant’s alleged ill-treatment

38.  On 27 November 2007 the applicant was apprehended by three police officers near his place of residence in Kazan. They drove him about 40 kilometres away from Kazan to the Vysokogorskiy police department.

39.  According to the applicant, between 27 to 29 November 2007 the police officers beat and tortured him in order to force him to confess to the murder of his wife. The police officers hit the applicant in the head, face, groin area, shoulder and chest multiple times with keys, and hit his in the jaw at least ten times. They also deprived the applicant of water and food, put a plastic bag on his head to cut air and forced him to stay on his knees or feet for hours. He was handcuffed the whole time. According to the applicant, his repeated requests for a lawyer were ignored, and he was beaten up in response.

40.  At a certain point on 29 November 2007 the policemen threatened the applicant that they would plant drugs on his handicapped son and would torture him in the applicant’s presence. The applicant agreed to write a confession statement, allegedly prompted by one of the police officers. On the same day the investigator interrogated the applicant as a suspect and compiled the arrest record in the presence of a State-appointed lawyer. According to the applicant, his request for assistance of the lawyer of his choosing was denied.

41.  On 7 December 2007, upon the investigator’s request, the applicant was examined by a forensic expert who certified numerous bruises on his body. According to the expert’s report, bruises on the applicant’s left shoulder could have been inflicted on the dates of the alleged ill-treatment, while other injuries (bruises on the left forearm, and the lower limbs, abrasions in the right knee area and wrists) were more recent.

C.    Official inquiry into the alleged ill-treatment

42.  On 30 January 2008 the applicant lodged a complaint about his ill‑treatment by the police.

43.  On 1 February 2008 the investigator found no evidence of criminal offence in the policemen’s actions and refused to open criminal proceedings. The investigator mainly relied on the information provided by five police officers involved in the applicant’s detention and questioning. The officers submitted that the applicant had been brought to the police station in November 2007, without specifying the exact date, and denied any allegations of ill-treatment. This refusal did not refer to the conclusions of the forensic medical examination of 7 December 2007 and the injuries indicated thereof.

44.  The applicant repeatedly appealed against the refusal of 1 February 2008, and between September 2008 and November 2009 lodged at least eight complaints to the Vysokogorskiy District Prosecutor. All those complaints were dismissed on the ground that the applicant’s grievances had been adequately examined and assessed by the investigator and, later, by the trial court in its judgement of 8 July 2009 (see paragraph 46 below).

45.  The applicant also lodged a complaint with the President of the Russian Federation, which was transmitted to the Prosecutor of the Republic of Tatarstan. The latter reiterated in his reply to the applicant that there were no grounds to bring criminal proceedings against the police officers concerned.

D.    The applicant’s trial and conviction

46.  On 8 July 2009 the Sovetskiy District Court of Kazan found the applicant guilty of his wife’s murder. The court’s finding was based, among other things, on the applicant’s confession made at the pre-trial stage. During the trial the applicant complained about the ill-treatment and claimed that his confession was extracted under duress. He also complained about being denied any legal assistance during that period. The District Court dismissed those arguments, reiterating the findings of the applicant’s forensic medical examination of 7 December 2007, namely that some bruises on the applicant’s body had been caused after 29 November 2007 and could have been intentionally inflicted by the applicant himself. The court concluded that the applicant’s allegations were unfounded and incoherent with other evidence

47.  On 22 September 2009 the Supreme Court of the Republic of Tatarstan upheld the applicant’s conviction.

V.     Kotkov v. Russia, no. 73094/10, and Kotkov v. Russia, no. 3490/11

48.  The applicants, Mr I. Kotkov and Mr A. Kotkov, are brothers, who at the time of the events resided in Ivantyeyevka, the Moscow Region. On 3 March 2009 the applicants were arrested on suspicion of having committed a robbery.

A.    Alleged ill-treatment on 3-4 March 2009 and confession of Mr I. Kotkov

49.  According to Mr I. Kotkov, after his arrest he was brought to the premises of the Investigative Division of the Orel Regional Department of the Interior where he was severely beaten by the police officers with the aim of extracting a confession.

50.  On 4 March 2009, in the absence of a lawyer, the applicant signed a self-incriminating statement. On the same day the applicant was interviewed by an investigator, and during that interview he confessed again. This interview was also carried out in the absence of the applicant’s lawyer and was video recorded.

51.  Later on the same day the applicant was interrogated as a suspect in the presence of a lawyer, and refused to make any statements.

52.  On 10 March 2009 Mr I. Kotkov was examined by a forensic medical expert. The record of this examination indicated the following injuries: abrasions on the left side of the neck, on the right shoulder and on the left and right wrists. The report concluded that the above injuries could have been inflicted between seven and ten days prior to the examination.

B.    Official inquiry into the alleged ill-treatment of Mr I. Kotkov

53.  On 11 March and 23 March 2009 the applicant’s mother complained about her son’s ill-treatment to the Prosecutor’s Office.

54.  On 31 March 2009 an investigator refused to institute criminal proceedings due to lack of evidence of a crime. The investigator concluded that the applicant had received his injuries while violently resisting the arrest. On the same day this refusal was quashed by a supervising officer.

55.  Between April and June 2009 the investigator issued at least four decisions refusing to institute criminal proceedings in respect of the applicant’s ill-treatment, subsequently annulled by a supervising officer. On 27 February 2010 the investigator yet again refused to institute criminal proceedings.

56.  It appears that the Mr I. Kotkov has never been personally interviewed during these inquiries.

C.    Alleged ill-treatment of Mr I. Kotkov on 18 November 2009 and the related official inquiry

57.  The applicant alleged that on 18 November 2009 he was subjected to ill treatment by a convoy officer. The alleged ill-treatment occurred in the building of the Orlovskiy District Court of the Orel Region during a break in the court hearing. When the hearing resumed the applicant complained about having been beaten up, and the hearing was adjourned on his request.

58.  On the same day the applicant’s lawyer brought a complaint about the ill-treatment to the Prosecutor’s Office and requested to conduct the applicant’s medical examination.

59.  On the same day the applicant was examined by a paramedic in the remand prison, who recorded that Mr I. Kotkov had a bruise on his forehead and a bruise on the right cheek-bone.

60.  On 27 November 2009 an investigator refused to institute criminal proceedings into the applicant’s allegation for lack of evidence of crime. On 27 January 2010 a supervising officer quashed the above decision. On 5 February 2010 the investigator issued a new refusal, which was also quashed on 27 November 2013.

D.    Alleged ill-treatment and confession of Mr A. Kotkov

61.  According to Mr A. Kotkov, the police officers arrested him on the street, dragged him into his flat with his arms twisted behind his back, knocked him down and hit him in the head. Allegedly, after that they took the applicant to a forest, where they punched and kicked him all over body and demanded that he confessed to the crimes committed in Orel. Then they brought him to a police station in Moscow, where the beatings continued and the record of the applicant’s arrest was drawn up. Mr A. Kotkov alleges that at the police station he heard the beatings and screams of his brother.

62.  On 4 March 2009 the applicants were brought to the premises of the Investigative Division of the Orel Regional Department of the Interior, where their beatings continued. Mr A. Kotkov confessed to the robberies, allegedly out of fear of further beatings. Later on the same day during a conversation with an investigator the applicant confessed again. Both confession statements were made in the absence of a lawyer.

63.  It appears that thereafter the applicant was interrogated as a suspect in the presence of a lawyer. The applicant denied his guilt, complained to the investigator that he had been ill-treated and confessed under duress, and requested to conduct a forensic medical examination.

64.  Later on the same day the applicant was taken to a hospital in Orel, where a doctor recorded the following injuries: soft tissue bruises on the applicant’s face, head and back.

65.  On 10 March 2009 upon the investigator’s request a forensic medical examination of the applicant was conducted. The record of this examination concluded that at the time of conducting the examination there were no visible injuries on the applicant’s body.

E.    Official inquiry into the alleged ill-treatment of Mr A. Kotkov

66.  On 5 March 2009 the applicant’s mother and his lawyer complained about the applicant’s ill-treatment to the Prosecutor’s Office and to the Investigative Committee.

67.  Over a period of 2009-2013 the investigators carried out a pre‑investigation inquiry into the applicant’s alleged ill-treatment and issued seven refusals to institute criminal proceedings. These were subsequently quashed by supervising officers.

F.     Investigation into the applicants’ complaints

68.  On 29 November 2013 an investigator ordered to institute criminal proceedings in respect of the brothers’ alleged ill treatment, but they were terminated due to the lack of indication of a crime. On four occasions the termination decision was quashed and a new one issued. During these rounds of proceedings the applicants’ medical certificates were examined by the forensic medical experts. These examinations confirmed the applicants’ injuries recorded during earlier medical examinations and concluded that they could have originated in the circumstances alleged by the applicants. The investigators concluded that the applicants had resisted the arrest, and thus the police officers had lawfully used wrestling techniques and handcuffs to restrain them. On 27 January 2016 the latest decision to terminate the proceedings was dismissed by a prosecutor who ordered to conduct an additional investigation.

69.  On 31 August 2016 the Zavodskoy District Court of the Orel Region quashed the prosecutor’s decision of 27 January 2016 and upheld the termination of the criminal proceedings. On 11 October 2016 the Orel Regional Court upheld the decision of the District Court on appeal.

G.    Criminal proceedings against the applicants

70.  On 14 April 2010 the Orlovskiy District Court of the Orel Region convicted the applicants of two counts of robbery in conspiracy. During the trial the applicants denied their guilt. The trial court extensively relied on the applicants’ confessions and the records of 4 March 2009 to secure their conviction. The trial court held that the presence of a lawyer was not required under the domestic law for a voluntary surrender with confession and a conversation (see para 62 above), and that the applicants’ allegations of coercion were unfounded.

71.  On 8 June 2010 the Regional Court qualified both counts of robbery as aggravated robbery, reduced the applicants’ sentences and upheld the rest of the conviction.

VI.   Saaryan and Petenko v. Russia, no. 17241/12

72.  Mr Saaryan and Mr Petenko were arrested on 23 and 26 March 2010 respectively on suspicion of committing murder and aggravated robbery.

A.    Alleged ill-treatment of Mr Saaryan

73.  On 23 March 2010 Mr Saaryan was apprehended in his house in Novorossiysk. The police broke into his house, woke up the applicant and his brother, and forced them into a van. According to the applicant, while pushing them into the van and during the trip the officers kicked him on different parts of his body.

74.  After that the applicant was brought to a police station of the Krasnoarmeyskiy District of the Krasnodar Region. According to the applicant, there the officers beat him for an hour without any explanations. After that they told him that he had to confess to committing armed robberies, and when he refused, they continued beating him.

75.  According to the applicant, the beatings continued for several days, both at the police station and in a detention facility. During that time the officers beat the applicant, electrocuted him, told him that his brother had been killed and the same would happen to him if he would not confess. Between 25 and 26 March 2010 the applicant wrote four confession statements prompted by an investigator, which inter alia implicated Mr Petenko. The applicant alleges that he was not able to contact his lawyer or to inform his family members about his arrest.

B.    Mr Saaryan’s medical examination

76.  On 23 March 2010 the applicant was admitted to a temporary detention facility, where the following injuries were recorded upon his arrival: contused wound on the forehead, multiple hematomas on the back, and a hematoma on the right shoulder. According to the report drawn in this respect, the applicant submitted that he had received the injuries as a result of a fall from a staircase on 22 March 2010.

77.  On 25 March 2010 the applicant attempted to commit suicide, after which he was taken to a hospital.

78.  On 26 March 2010 the applicant was examined by a forensic medical expert who recorded the following injuries: bruises on the left side of the chest, on the left shoulder, and on the left thigh. In addition, the report indicated the cuts on the applicant’s left forearm and neck. During this examination the applicant reiterated that he had received his injuries having fallen down from stairs. The expert concluded that the applicant might have received the injuries in the circumstances alleged.

C.    Official inquiry into Mr Saaryan’s ill-treatment

79.  On 5 May 2010 the applicant complained about his ill-treatment to the Investigative Committee. On 15 May 2010 an investigator refused to institute criminal proceedings, concluding that the applicant had received his injuries as a result of a fall from a staircase. On 26 October 2010 the refusal was quashed by a supervising officer, who ordered to conduct an additional examination.

80.  On 10 November 2010 a new refusal to institute criminal proceedings was issued.

81.  On unspecified date the applicant lodged a complaint with the Krasnoarmeyskiy District Court of the Krasnodar Region. On 13 February 2012 the District Court dismissed the complaint on the ground that the applicant had already been convicted by a final judgment (see paragraph 82 below).

D.    The applicants’ trial and conviction

82.  On 11 May 2011 the Krasnoarmeyskiy District Court of Krasnodar found the applicants guilty of murder and aggravated robbery. During the trial the applicants stated that they had never met each other before and denied all accusations. Mr Saaryan stated in the court that all four of his confession statements were obtained as a result of ill-treatment and requested to declare them inadmissible, but his request was denied. On 31 August 2011 the Krasnodar Regional Court upheld the applicants’ conviction on appeal.

RELEVANT LEGAL FRAMEWORK

83.  For the relevant provisions of domestic law on the prohibition of torture and other ill-treatment and the procedure for examining a criminal complaint, see Lyapin v. Russia, no. 46956/09, §§ 96-102, 24 July 2014, and Ryabtsev v. Russia, no. 13642/06, §§ 48‑52, 14 November 2013.

THE LAW

I.         JOINDER OF THE APPLICATIONS

84.  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 ARTICLEs 3 and 13 OF THE CONVENTION

85.  The applicants, except for Mr Petenko, 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. Some applicants also complained under Article 13 of the Convention about lack of an 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 or punishment.”

Article 13

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

A.    The Government’s request for the application no. 73094/10 to be struck out under Article 37 of the Convention

86.  The Government informed the Court that they propose to make unilateral declaration, by which they acknowledged violation of both substantial and procedural aspects of the Article 3 of the Convention in respect of Mr I. Kotkov (no. 73094/10) and offered to pay the applicant just satisfaction. They further requested the Court to strike out the application in accordance with Article 37 of the Convention. Noting the admissions contained in the Government’s declaration as well as the amount of compensation proposed, the Court is not satisfied that the compensation offered by the Government in respect of non‑pecuniary damage constitutes adequate and sufficient redress for the violations of the applicant’s rights under the Convention.

87.  Accordingly, the Court refuses the Government’s request to strike the application out of its list of cases under Article 37 of the Convention and will accordingly pursue its examination of the admissibility and merits of the case.

B.    Admissibility

1.     The parties’ submissions

88.  The Government argued that Mr Babichev had failed to exhaust all the available domestic remedies, as he did not challenge the refusals to institute criminal proceedings in respect of the alleged ill-treatment under Article 125 of the Code of Criminal Procedure.

89.  Mr Babichev maintained his complaints.

2.     The Court’s assessment

90.  The Court notes the Government’s argument that Mr Babichev had only appealed against the most recent refusal of 1 February 2009. Since his appeal was rejected without being examined on the merits, the applicant, in their view, had failed to exhaust the available domestic remedies.

91.  The Court considers that the applicant acted diligently and complained about his ill-treatment promptly and without unreasonable delays (see paragraphs 16–21 above). The applicant could not have possibly lodged a successful complaint about the refusal to institute criminal proceedings with the domestic courts before his conviction due to the speediness of the criminal proceedings against him. The Court finds that the applicant pursued the remedies available to him at the time and rejects the Government’s plea of non-exhaustion of domestic remedies.

C.    Merits

1.     The parties’ submissions

92.  The applicants maintained their complaints.

93.  The Government did not submit their observations in the case of Mr Saaryan (no. 17241/12). As regards the remaining applications, the Government maintained the conclusions of the domestic inquiries.

2.     The Court’s assessment

(a)    Credibility of the applicants’ allegations of ill-treatment

94.  The Court has already established that Mr Temnikov (no. 39169/07), Mr Babichev (no. 30279/09), Mr Mubarakshin (no. 20808/10), Mr I. Kotkov (no. 73094/10), Mr A. Kotkov (no. 3490/11), and Mr Saaryan (no. 17241/12) were apprehended by State officers on suspicion of them having committed various crimes (see paragraphs 4, 11, 38, 48 and 73 above). Ms Rakhmanova (no. 41151/09) was apprehended and brought to a police station in order to testify as a witness in the criminal proceedings initiated against her friend (see paragraph 24 above).

95.  The Court further notes that all the applicants alleged that they had suffered ill-treatment on the hands of police officers. They provided detailed and consistent accounts of the circumstances of the alleged ill-treatment, which involved severe beatings, tight handcuffing, electrocuting, suffocation with a plastic bag, and deprivation of food and water (see paragraphs 4, 12, 25, 39, 49, 61, 62, 74 and 75 above).

96.  After spending various periods of time in the police custody, the applicants were found to have sustained injuries of varying degrees of severity, as recorded by doctors in hospitals and detention facilities, and later confirmed by forensic medical experts (see paragraphs 5, 13-15, 26-29, 52, 59, 64, 65, 76 and 78 above).

97.  The above factors are sufficient to give rise to a presumption in favour of the applicants’ accounts of the events and to satisfy the Court that the applicants’ allegations of ill-treatment in police custody were credible.

(b)    Effectiveness of the investigation into the alleged ill-treatment

98.  In all of the cases the applicants presented credible allegations of their injuries being the result of violence of State officers. These were dismissed by the investigating authorities as unfounded mainly because of the statements of the State officers denying the applicants’ ill-treatment (see paragraphs 7, 17, 32, 34, 43, 67, 79 and 80 above). The investigators issued several decisions refusing to open criminal proceedings, some of which were annulled as unlawful and incomplete (see paragraphs 7, 18, 19, 33, 67 and 68 above).

99.  As regards the forensic expert examinations, 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). The Court notes that no forensic examination was conducted in respect of Mr Temnikov (no. 39169/07).

100.  The Court further notes that even though the applicants were examined by the forensic medical experts shortly after their ill-treatment took place, their conclusions were often incoherent with the other medical documents. Even though Ms Rakhmanova was examined by a forensic expert a day after the ill-treatment (see paragraph 28 above), the investigator requested to conduct two additional examinations, which took place three weeks and four months after the events complained of. These examinations, unlike the initial one, did not confirm any of the applicant’s injuries. Moreover, by the time of the last examination some of the applicant’s injuries could not be confirmed or examined due to the lack of medical documents and absence of the visible injuries (see paragraph 30 above). However, for unspecified reasons, the investigation authorities chose to rely on the forensic medical examination which was conducted more than four months after the ill-treatment, and overlooked the conclusions of the one compiled the next day.

101.  The Court finds it surprising that during the official inquiry into Mr Mabarakshin’s credible allegations of ill-treatment the investigating authorities completely ignored the conclusions of the forensic medical examination conducted upon the investigator’s request (see paragraph 43 above). Moreover, while examining the applicant’s complaint in the criminal proceedings against him, the District Court, relying on the record of forensic examination, found that some of the applicant’s injuries were inflicted after the alleged events, and without giving proper assessment of the origin of any of the injuries concluded that the applicant’s allegations were unfounded (see paragraph 46 above). Regard having been had at the short time between the ill-treatment and the forensic examination, and the fact that the applicant remained in custody continuously, the Court finds that the investigation and the domestic courts had to give thorough and complete answers regarding the origins of all the injuries.

102.  The Court further notes that in the case of Mr Babichev, the investigator, while exclusively relying on the conclusions of forensic medical expert, found that the applicant’s injuries were inflicted after the day of the alleged ill-treatment (see paragraph 15 above). While not overseeing the expert’s conclusions, the Court observes that the applicant was examined by the paramedics of the IVS to which he was admitted right after his ill‑treatment, who recorded numerous injuries on him. The next day almost the same injuries were recorded by a traumatologist (see paragraphs 13 and 14 above). In the light of the foregoing, the Court finds it striking that the investigating authorities ignored the fact that the applicant was visibly injured right after his arrest, and fully relied on the expert’s conclusions. In any event, considering that the applicant remained in the custody from the time he was arrested until the medical examination in the traumatology centre, the Court finds the investigator’s statements, suggesting that the applicant had injured himself in the IVS, unfounded.

103.  Furthermore, the Court reiterates its finding that the mere pre‑investigation inquiry conducted under Article 144 of the Code of Criminal Procedure of the Russian Federation does not allow the authorities to conduct a proper criminal investigation in which a full range of investigative measures are carried out (see Lyapin v. Russia, no. 46956/09, § 129, 24 July 2014). In itself, a refusal by the authority to open a criminal investigation into credible allegations of serious ill‑treatment in the police custody is indicative of the State’s failure to comply with its obligation under Article 3 of the Convention to carry out an effective investigation (ibid., §§ 132‑36).

104.  The investigation into credible allegations of ill-treatment must be thorough, meaning that the authorities must make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis for their decisions (see Assenov and Others v. Bulgaria, 28 October 1998, § 103, Reports of Judgments and Decisions 1998 VIII). A four years delay in instituting criminal proceedings into credible allegations of ill-treatment in the case of Mr I. Kotkov and Mr A. Kotkov (see paragraph 68 above) had a significant adverse impact on the investigation, considerably undermining the investigating authority’s ability to secure evidence concerning the alleged ill‑treatment (see Razzakov v. Russia, no. 57519/09, § 61, 5 February 2015).

105.  In view of the foregoing, the Court finds that the authorities did not take all reasonable steps available to them to secure evidence and did not make a serious attempt to find out what had happened (see, among other authorities, Assenov and Others, cited above, §§ 103 et seq., and Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000 IV). It holds that the Government have failed to discharge their burden of proof and to produce evidence capable of casting doubt on the applicants’ account of events, which it therefore finds established (see Olisov and Others v. Russia, nos. 10825/09 and 2 others, §§ 83-85, 2 May 2017, and Ksenz and Others v. Russia, nos. 45044/06 and 5 others, §§ 102-04, 12 December 2017).

(c)    Legal classification of the treatment

106.  The applicants alleged that they had been subjected to torture and inhuman and degrading treatment.

107.  Having regard to the applicants’ injuries confirmed by medical evidence, the Court finds that the State officers subjected Mr Babichev, Ms Rakhmanova, Mr Mubarakshin, Mr I. Kotkov and Mr A. Kotkov to inhuman and degrading treatment. As regards Mr Saaryan’s allegations of being subjected to electrocution, the Court finds them unsubstantiated. However, his injuries clearly originated from the beatings by the State officers, and in this connection the Court concludes that he had been subjected to inhuman and degrading treatment.

108.  The Court finds Mr Temnikov’s injuries, in particular, the fracture of his hand (see paragraph 5 above) quite serious. It notes that the ill‑treatment was inflicted on the applicant with a view to extracting a confession statement, causing severe physical and mental suffering. The Court concludes that the ill-treatment at issue amounted to torture (see Tigran Ayrapetyan v. Russia, no. 75472/01, §§ 13 and 77, 16 September 2010, and Chenchevik v. Ukraine, no. 56920/10, § 79, 18 July 2019).

(d)    Conclusion

109.  There has accordingly been a violation of Article 3 of the Convention under its substantive and procedural limbs in respect of all applicants, except for Mr Petenko. In the light of this finding, 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 Temnikov and Mr Babichev.

III.   ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

110.  Mr Saaryan and Mr Petenko (no. 17241/12) complained that their conviction judgment had been based on confession statements made by Mr Saaryan between 25 and 26 March 2010 as a result of his ill-treatment and in the absence of a lawyer. Mr I. Kotkov (no. 73094/10), Mr A. Kotkov (no. 3490/11), and Mr Mubarakshin (no. 20808/10) complained that their conviction had been based on the self-incriminating statements that they had made as a result of their ill-treatment and in the absence of a lawyer. The Court will examine these complaints under Article 6 § 1 of the Convention, which, in so far as relevant, provides:

“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

A.         Admissibility

111.  The Court notes that these grievances are not manifestly ill founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B.          Merits

1.     Submissions by the parties

112.  The applicants maintained their complaints.

113.  The Government submitted in respect of Mr I. Kotkov and Mr A. Kotkov that the presence of a lawyer during the interviews was not required, since at that time the applicants did not have any procedural status. The Government also noted in respect of Mr Mubarakshin and other applicants that their interviews and confession statements were not a sole evidence on which the applicant’s convictions were based. They argued that their guilt had been sufficiently proven by other evidence in the case.

114.  The Government did not submit their observations in respect of Mr Saaryan and Mr Petenko.

2.     The Court’s assessment

115.  The Court reiterates that the admission of confession statements obtained as a result of torture or ill-treatment in breach of Article 3 of the Convention as evidence to establish the relevant facts in criminal proceedings renders the proceedings, as a whole, unfair. Insofar as the Government argued that the applicant’s confession was not the sole evidence in the case, the Court recalls that the above applies irrespective of the probative value of the statements and irrespective of whether their use was decisive in securing the defendant’s conviction (see Gäfgen v. Germany [GC], no. 22978/05, § 166, ECHR 2010).

116.  The Court has already found in the paragraph 109 above that the confessions of Mr Mubarakshin, Mr I. Kotkov, Mr A. Kotkov, and Mr Saaryan were obtained as a result of inhuman and degrading treatment to which they were subjected in police custody. This enables the Court to conclude that the domestic courts’ use of the applicants’ confession has rendered the applicants’ trials unfair.

117.  These principles apply not only where the victim of the treatment contrary to Article 3 of the Convention is the actual defendant but also where third parties are concerned (see Ćwik v. Poland, no. 31454/10, § 75, 5 November 2020, with further references). In the light of the above the Court finds that the admission and use of Mr Saaryan’s confession accusing, inter alia, Mr Petenko (see paragraph 75 above), in the criminal proceedings against Mr Petenko rendered the proceedings as a whole unfair, in breach of Article 6 § 1 of the Convention.

118.  There has therefore been a violation of Article 6 § 1 of the Convention in respect of Mr Mubarakshin, Mr I. Kotkov, Mr A. Kotkov, Mr Saaryan, and Mr Petenko.

119.  In the light of the above finding, the Court considers that it has examined the main legal questions raised in the present application and that there is no need to give a separate ruling on Mr Mubarakshin’s, Mr Saaryan’s, Mr A. Kotkov’s, and Mr I. Kotkov’s complaints under Article 6 § 3 (c) of the Convention (see Denisov v. Ukraine [GC], no. 76639/11, §§ 138-39, 25 September 2018, and Tolmachev v. Russia, no. 42182/11, § 59, 2 June 2020).

IV.   OTHER ALLEGED VIOLATIONS OF THE CONVENTION

120.  Lastly, the Court has examined the other complaints submitted by the applicants and, having regard to all the material in its possession and in so far as the complaints fall within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that these parts of the applications must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

V.     APPLICATION OF ARTICLE 41 OF THE CONVENTION

121.  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.”

 

122.  The amounts claimed by the applicants under the head of pecuniary and non-pecuniary damage and costs and expenses are indicated in the appended table.

123.  In addition, Mr Babichev claimed 2,000 euros (EUR) for the legal costs incurred in the domestic proceedings.

124.  Ms Rakhmanova claimed EUR 400 (35,000 Russian roubles (RUB)) for her lawyer’s fees.

125.  Mr Mubarakshin claimed compensation for pecuniary damage amounting to RUB 2,040,000 (EUR 23,400), which equals the loss of the applicant’s income for the period between 2007 and 2013, when he was serving his sentence in the correctional facility. Mr Mubarakshin also claimed EUR 320 for the legal costs.

126.  Mr Saaryan claimed EUR 10,125 for legal costs and EUR 62 for postal expenses.

127.  Mr Petenko claimed EUR 10,530 for legal costs and EUR 142 for translation fees.

128.  Mr Temnikov, Mr I. Kotkov, and Mr A. Kotkov did not claim compensation under the head of costs and expenses.

129.  The Government invited the Court to make its award in accordance with its case-law.

A.    Damage

130.  The Court considers that the applicants must have suffered anguish and distress as a result of the violations found above. In those circumstances, the Court considers it reasonable to award the sums indicated in the appended table.

131.  Regarding Mr Mubarakshin, the Court finds that his pecuniary damage claim has no causal connection with the established violations of the Convention, and therefore should be dismissed.

B.    Costs and expenses

132.  As to costs and expenses, the Court reiterates that an applicant is entitled to their reimbursement only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.

133.  Mr Babichev and Mr Mubarakshin did not provide any documents in support of their claims for legal expenses, and, therefore, the Court rejects the applicants’ claims under this head.

134.  As to Ms Rakhmanova’s claim, the Court awards her EUR 345 for legal costs. Regarding the claims of Mr Saaryan and Mr Petenko the Court awards them EUR 2,050 and EUR 2,115 respectively for the costs and expenses incurred.

135.  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.      Rejects the Government’s unilateral declaration;

3.      Declares the complaints concerning the applicants’ alleged ill-treatment by the State officers, the lack of an effective investigation into their complaints, and the use of confession statements obtained in violation of Article 3 of the Convention in their respective conviction judgments admissible, and the remainder of the applications inadmissible;

4.      Holds that there has been a violation of Article 3 of the Convention under its substantial and procedural limbs in respect of all the applicants, except for Mr Petenko;

5.      Holds that there is no need to examine the complaints of Mr Temnikov and Mr Babichev under Article 13 of the Convention;

6.      Holds that there has been a violation of Article 6 § 1 of the Convention in respect of Mr Mubarakshin, Mr I. Kotkov, Mr A. Kotkov, Mr Saaryan, and Mr Petenko;

7.      Holds that there is no need to examine Mr Mubarakshin’s, Mr Saaryan’s, Mr I. Kotkov’s, and Mr A. Kotkov’s complaints under Article 6 § 3 (c) of the Convention;

8.      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 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 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;

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

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

 {signature_p_2}

Olga Chernishova                                                                  Peeter Roosma
Deputy Registrar                                                                       President

 

 

APPENDIX

List of cases:

No.	Case name Application no.   Lodged on	Applicant Year of Birth Place of Residence Nationality Represented by	Non-pecuniary damage	Pecuniary damage	Costs and expenses
1.	Temnikov v. Russia 39169/07   02/08/2007	Igor Sergeyevich TEMNIKOV 1986 Taksimo Russian	Sought by the applicant
			EUR 50,000	-	-
			Awarded by the Court
			EUR 50,000 (fifty thousand euros)	-	-
2.	Babichev v. Russia 30279/09   14/08/2009	Maksim Aleksandrovich BABICHEV 1975 Engels Russian	Sought by the applicant
			EUR 50,000	-	EUR 2,000
			Awarded by the Court
			EUR 26,000 (twenty-six thousand euros)	-	-
3.	Rakhmanova v. Russia 41151/09   06/05/2009	Nailya Mirasovna RAKHMANOVA 1988 Kazan Russian   Igor Nikolayevich SHOLOKHOV	Sought by the applicant
			EUR 15,000	-	RUB 35,000 (EUR 400)
			Awarded by the Court
			EUR 15,000 (fifteen thousand euros)	-	EUR 345 (three hundred and forty-five euros)
4.	Mubarakshin v. Russia 20808/10   16/03/2010	Shamil Yunusovich MUBARAKSHIN 1960 Kazan Russian	Sought by the applicant
			EUR 90,000	RUB 2,040,000 (EUR 23,400)	EUR 320
			Awarded by the Court
			EUR 26,000 (twenty-six thousand euros)	-	-
5.	Kotkov v. Russia 73094/10   22/11/2010	Ilya Grigoryevich KOTKOV 1982 Naryshkino Russian   Norayr Georgiyevich SHAKHNAZAROV	Sought by the applicant
			EUR 30,000	-	-
			Awarded by the Court
			EUR 26,000 (twenty-six thousand euros)	-	-
6.	Kotkov v. Russia 3490/11   29/11/2010	Andrey Grigoryevich KOTKOV 1983 Naryshkino Russian   Norayr Georgiyevich SHAKHNAZAROV	Sought by the applicant
			EUR 30,000	-	-
			Awarded by the Court
			EUR 26,000 (twenty-six thousand euros)	-	-
7.	Saaryan and Petenko v. Russia 17241/12   29/02/2012	Manvel Amikovich SAARYAN 1987 Novorossiysk Russian Vladimir Vladimirovich PETENKO 1976 Dvubratskiy Russian   Ruzanna Rafaelovna GALUSTYANTS	Sought by Mr Saaryan
			EUR 50,000	-	EUR 10,187
			Awarded by the Court
			EUR 26,000 (twenty-six thousand euros)	-	EUR 2,050 (two thousand and fifty euros)
			Sought by Mr Petenko
			EUR 60,000	-	EUR 10,592
			Awarded by the Court
			EUR 6,000 (six thousand euros)	-	EUR 2,115 (two thousand one hundred and fifteen euros)