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Cite as: [2023] ECHR 924

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FIFTH SECTION

CASE OF MUZHETSKIY AND OTHERS v. RUSSIA

(Applications nos. 40311/19 and 10 others -

see appended list)

JUDGMENT

STRASBOURG

23 November 2023

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

In the case of Muzhetskiy and Others v. Russia,

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

María Elósegui, President,
Mattias Guyomar,
Kateřina Šimáčková, judges,

and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 2 November 2023,

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

PROCEDURE

1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") on the various dates indicated in the appended table

2. The Russian Government ("the Government") were given notice of the applications.

THE FACTS

3. The list of applicants and the relevant details of the applications are set out in the appended table.

4. The applicants complained of the torture or inhuman or degrading treatment. Some applicants also raised other complaints under the provisions of the Convention.

THE LAW

JOINDER OF THE APPLICATIONS

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

JURISDICTION

6. The Court observes that the facts giving rise to the alleged violations of the Convention occurred prior to 16 September 2022, the date on which the Russian Federation ceased to be a party to the Convention. The Court therefore decides that it has jurisdiction to examine the present applications (see Fedotova and Others v. Russia [GC], nos. 40792/10 and 2 others, §§ 68-73, 17 January 2023).

LOCUS STANDI in application No. 63119/19

7. Following the death of the applicant, Mr K.S. Maksimenko (application no. 63119/19), his wife Ms Yu. A. Maksimenko and his father Mr S.V. Maksimenko expressed their wish to pursue the application on behalf of the deceased applicant. The Government did not object.

8. The Court has accepted that in applications concerning Article 3 of the Convention, a close relative of the deceased applicant has standing to pursue the application (see Magnitskiy and Others v. Russia, nos. 32631/09 and 53799/12, § 176, 27 August 2019, with further references).

9. In the light of the above, the Court accepts that Ms Yu. A. Maksimenko and Mr S.V. Maksimenko have a legitimate interest in pursuing the application in place of the deceased applicant. It will therefore continue to deal with the case at their request. For convenience, however, it will continue to refer to Mr K.S. Maksimenko as the applicant in the present judgment.

ALLEGED VIOLATION OF ARTICLE 3 of the Convention

10. The applicants complained principally of the torture or inhuman or degrading treatment. They relied, expressly or in substance, on Article 3 of the Convention.

11. The Court held in Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-90 and 114-23, ECHR 2015), that presumptions of fact was in favour of applicants claiming to be victims of a violation of Article 3 of the Convention, if they demonstrate that the alleged ill-treatment was inflicted when they were under the control of the police or a similar authority. Moreover, in the context of detainees, the Court has emphasised that persons in detention are in a vulnerable position and that the authorities have a duty to protect their physical well-being and that any recourse to physical force which has not been made strictly necessary by the applicants' own conduct diminishes human dignity and in principle constitutes a violation of the right enshrined in Article 3 of the Convention (see Sheydayev v. Russia, no. 65859/01, § 59, 7 December 2006). The burden of proof rests on the Government to show that the use of force, which resulted in the applicants' injuries, was not excessive (see, for example, Dzwonkowski v. Poland, no. 46702/99, § 51, 12 April 2007, and compare with Kursish and Others v. Russia [Committee], nos. 62003/08 and 5 others, § 84, 5 July 2022).

12. Furthermore, in the cases of Lyapin v. Russia, no. 46956/09, §§ 128-40, 24 July 2014, and Samesov v. Russia, no. 57269/14, §§ 54-63, 20 November 2018, as well as in Kuchta and Mętel v. Poland, no. 76813/16, § 88, 2 September 2021, the Court has already found, in particular, that the authorities' refusal to open a fully-fledged criminal investigation into the credible allegations of ill-treatment, as well as the lack of assessment of the necessity and proportionality of the use of lawful force by the police were indicative of the State's failure to fulfil its procedural obligation under Article 3 of the Convention.

13. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints.

14. The Court therefore finds these complaints admissible and observes that there has been a violation of the substantive and procedural limbs of Article 3 of the Convention in respect of all the applicants, with the exception of the applicant in application no. 50455/19, in respect of whom it finds only a violation of the procedural limb of that provision.

OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW

15. In applications nos. 41438/19, 46839/19 and 62444/19 the applicants submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Ksenz and Others v. Russia, nos. 45044/06 and 5 others, §§ 111-12, 12 December 2017, Tangiyev v. Russia, no. 27610/05, § 76, 11 December 2012, and Belugin v. Russia, no. 2991/06, §§ 69-71, 26 November
2019.

REMAINING COMPLAINTS

16. In addition, some applicants also complained under Article 13 of the Convention. These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. They must therefore be declared admissible. Having examined all the material before it, the Court concludes that there is no need to examine them separately in the light of its findings under Article 3 of the Convention (see Aleksandr Andreyev v. Russia, no. 2281/06, § 71, 23 February 2016, and Leonid Petrov v. Russia, no. 52783/08, § 86, 11 October 2016).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

17. 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."

18. Having regard to the documents in its possession and to its case-law (see Ksenz and Others, cited above, § 120; and, for similar situations, Zagaynov and Others v. Russia [Committee], nos. 5666/07 and 4 others, 15 June 2021, and Dauberkov and Others v. Russia [Committee], nos. 60844/11 and 2 others, § 64, 22 March 2022), the Court considers it appropriate to award the sums indicated in the appended table.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Decides to join the applications;
Holds that it has jurisdiction to deal with these applications as they relate to facts that took place before 16 September 2022;
Holds that Ms Yu. A. Maksimenko and Mr S.V. Maksimenko have standing to pursue application no. 63119/19 in place of the deceased applicant Mr K.S. Maksimenko;
Declares the applications admissible;
Holds that these applications disclose a breach of the substantive and procedural limbs of Article 3 of the Convention concerning the torture or inhuman or degrading treatment and absence of an effective investigation into it, in respect of all the applicants, with the exception of the applicant in application no. 50455/19, where there has only been a violation of the procedural limb of Article 3 of the Convention;
Holds that there has been a violation of the Convention as regards the other complaints raised under the well-established case-law of the Court (see appended table);
Holds

(a) that the respondent State is to pay the applicants/heirs of the applicant in application no. 63119/19, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State the rate applicable at the date of settlement;

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

Done in English, and notified in writing on 23 November 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Viktoriya Maradudina María Elósegui

Acting Deputy Registrar President

APPENDIX

List of applications raising complaints under Article 3 of the Convention

(torture or inhuman or degrading treatment)

No.	Application no. Date of introduction	Applicant's name Year of birth	Representative's name and location	Factual information	Medical evidence of ill-treatment	Date of first complaint Decision issued in response to complaint of ill-treatment	Decision under Article 125 of the CCrP Appeal decision	Information relating to conviction	Other complaints under well-established case-law	Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros)[1]
	40311/19 18/07/2019	Aleksey Yuryevich MUZHETSKIY 1976	Sholokhov Igor Nikolayevich Kazan	On 24/03/2018 FSB officers took the applicant from the street near his home to a forest where for about 3 minutes he was kicked in the torso and threatened to make him stop his political activities. Then he was taken back. No record of his apprehension was drawn.	Examination act no. 99 of 26/03/2018 by the Stavropol Regional Forensic Bureau: hematomas on the torso; expert evaluation no. 186 of 04/04/2018 by the same Bureau: hematomas of the anterior and lateral walls of the abdomen as a result of impact of blunt objects.	On 27/03/2018 complaint to the Aleksandrovskiy Inter-District Department of the Investigative Committee of the Stavropol Region/ on 15/05/2018 a criminal case opened, on 14/06/2018 the investigation suspended. Its outcome is unknown.	On 18/03/2019 the Aleksandrovskiy District Court partly terminated the proceedings on the applicant's appeal against the suspension /On 14/05/2019 the Stavropol Regional Court rejected the applicant's appeal and found that the suspension was justified.	The applicant was not charged with any offence.		26,000
	41438/19 26/07/2019	Dmitriy Aleksandrovich TSYBUKOVSKIY 1993	Lepekhin Andrey Gennadyevich Chelyabinsk	At 10 p.m. on 19/02/2018 officers of the FSB for the Chelyabinsk Region apprehended the applicant without explanations. They knocked him down on the floor, handcuffed him and administered blows to his head, neck and body. Then he was taken by car to his workplace; on the way the officers beat the applicant on the torso, neck and hips. They took him to his flat in Chelyabinsk, which they searched. Thereafter the applicant was taken to the FSB office, where he remained all night and was subjected to electric shocks, interviewed and forced to confess to the involvement in hooliganism. Then in the morning on 20/02/2018 he was taken to the police station, where a legal-aid lawyer was appointed to him, and in whose presence the applicant complained about the ill-treatment by the FSB officers. He was released at 8:30 p.m.	Medical card no. 100074379 by Chelyabinsk Regional Hospital No. 2, entry of 22/02/2018: bruise measuring 2 cm on the right flank area, two electric burn marks measuring 3 mm on the left hip; diagnoses - injury of the soft tissues of abdomen, electric burns on the left hip; the applicant stated that the injuries were a result of ill-treatment by the FSB officers. Forensic medical report no. 1585 of 02/03/2018 by the Chelyabinsk Region Forensic Bureau: the bruise resulted from a traumatic impact by a hard blunt object, this injury was assessed as superficial, its time of infliction could not be determined; no medical assessment was given to the electric burn due to the absence of a detailed morphologic description of this injury in the medical card. Forensic medical report no. 5482 of 02/08/2018: electric burns were assessed as being "first-degree burns" which could have originated in the period of time and under the circumstances as alleged by the applicant.	On 27/02/2018 complaint to the Chelyabinsk Investigative Committee/ Refusals to open criminal case: 12/03/2018, 12/04/2018, 21/08/2018, 25/10/2018, last - 24/01/2019. All refusals, except for the last one, were overruled by the investigators' superiors. The complaint was found unsubstantiated as the use of force by the FSB officers was justified by the applicant's resistance.	The applicant appealed against the last refusal to the Chelyabinsk Garrison Military Court/appeal dismissed on 24/12/2018/ upheld on 31/01/2019 by the Ural Circuit Military Court	On 19/06/2018 criminal proceedings against the applicant were terminated for the lack of corpus delicti.	Art. 5 (1) - unlawful deprivation of liberty, including unrecorded detention and detention without a judicial order and any other legal basis - Unrecorded detention for over 14 hours from 10 p.m. on 19/02/2018 to 11:55 a.m. on 20/02/2018.	52,000
	43704/19 30/07/2019	Denis Eduardovich YEFIMOV 1988	Miftakhutdinov Timur Faritovich Kazan	On 18/04/2018 the officers of the Drug Control unit of the Zelenodolsk police stopped the applicant's car in Zelenodolsk, took him and passenger K. to a police car, beat the applicant there on the torso and the extremities, pulled his hair and pinched his nose. He was then taken to the Zelenodolsk police station and questioned with a view of obtaining a testimony against K. on account of the latter's alleged involvement in drug trafficking.	Medical certificate of the Zelenodolsk District Hospital no. 2778 of 20/04/2018: chest bruise, contusion of the right kidney; certificate from the same hospital no. 2923 of 25/04/2018: same injuries detected. The IVS record of emergency calls, 19/04/2018: chest pain; local emergency team records no. 2813 of 19/04/2018: right-side renal colic, kidney pain, chest pain and no. 3832 of 25/04/2018: bruise to the chest, brain concussion, right hip bruise. Forensic medical examination report no. 326 (referred to in the decision of 04/18/2018 not to open criminal case, undated): right hip bruise, impossible to establish the origin.	On 04/05/2018 complaint to the Tatarstan Investigative Committee. In parallel, in May 2018 (date illegible) the Zelenodolsk District Hospital informed the Zelenodolsk police of the applicant's injuries (kidney contusion)/ Refusal to open criminal proceedings: 04/06/2018, and 16/11/2018, both overruled by the investigators' superiors; latest round of the inquiry pending at the time of introduction of the application.	15/11/2018 (no appeal as the refusal of 04/06/2018 overruled in the meantime)/On 15/03/2019 the Tatarstan Supreme Court (complaint disallowed as the latest refusal of 16/11/2018 had been overruled in the meantime).	On 19/04/2018 Justice of the Peace of the 5th Court Circuit of Zelenodolsk/ administrative conviction for a refusal to undergo a drug intoxication test, 7 days' administrative arrest		26,000
	46839/19 22/07/2019	Yuriy Vladimirovich KOPSHEV 1984		On 20/12/2016 police officers of the Pionerskiy Town Police Department in the Kaliningrad Region subjected the applicant to beatings at the police station to make him confess to a bribery.	Certificate of the Pionerskiy Town Clinical Hospital of 21/12/2016: sprain of the ligament apparatus of the spine. Forensic medical examination report no. 3548 of 22/12/2016 by Kaliningrad Region Forensic Bureau: bruises on both hands and shins, abrasion of the right shin.	On 23/12/2016 complaint to the investigative committee, the prosecutor's office and Federal Security Service / Seven refusals to open a criminal case between and 15/04/2019.	On 22/03/2019 the Svetlogorsk Town Court dismissed the applicant's appeal against the sixth refusal as the impugned decision had been overruled/upheld on 24/06/2019 by the Kaliningrad Regional Court	On 08/05/2018 the Svetlogorsk Town Court convicted the applicant of bribery and sentenced him to nine years' imprisonment/On 23/08/2018 the Kaliningrad Regional Court upheld the conviction.	Art. 5 (1) - unlawful deprivation of liberty, including unrecorded detention and detention without a judicial order and any other legal basis - unrecorded detention between 20/12/2016 and 21/12/2016.	26,000
	50455/19 17/09/2019	Magomed Omarovich MAGOMEDOV 1981	Shabanov Arsen Khidirnabiyevich Makhachkala	On 14/01/2019 the applicant, a lawyer, accompanied his client to the Kirovskiy district police station in Makhachkala, where he was allegedly prevented from entering an office with his client. An officer pushed him against the wall, grabbed his arms and neck and dragged him outside.	Medical examination act No. 88 of 14/01/2019 by the Dagestan Forensic Bureau: bruise on the shoulders due to repeated pressure against blunt objects.	On 14/01/2019 complaint to the Kirovskiy District Investigative Committee lodged / refusals to open a criminal case on 24/01/2019 and 28/02/2019 overruled by the investigators' superiors, last one - on 31/05/2019.	On 17/05/2019 the Kirovskiy District Court in Makhachkala dismissed the applicant's appeal against the refusal of 28/02/2019 as it had been overruled by the investigators' superiors/on 03/06/2019 the decision upheld by the Supreme Court of the Dagestan Republic.	The applicant was not charged with any offence.		12,500
	52162/19 28/09/2019	Oleg Rashidovich SIRAZOV 1965	Zboroshenko Nikolay Sergeyevich Mytishchi	At 12.30 p.m. on 16/12/2015 the applicant was beaten up in his flat in front of his mother by two police officers from the Novokosino district police station in Moscow and then taken to the police station.	Medical examination act of 21/12/2015 from City Hospital No. 66: closed fracture of the nasal bones with displacement, contusions and bruises to the soft tissue of the face. Forensic Medical Examination No. 1530м/1950 of 21/04/2016 by the Moscow Forensics Bureau: the diagnosis of a closed nasal fracture cannot be objectively confirmed or disproved, contusions and bruises to the soft tissue of the face, bruises to the left eye area, left forehead, abrasions to the right elbow joint, bruising to the left forearm. The examination was made on the basis of documents. Forensic Medical Examination on 15/09/2017: the injuries could have been sustained by the applicant in the period of time specified by him.	On 22/12/2015 complaint to the Novokosino district police station / Between 24/03/2016 and 28/09/2019 nine refusals to open a criminal case (the use of force was justified by the applicant's behaviour).	On 06/05/2019 the Perovo District Court in Moscow dismissed the applicant's appeal against a refusal as it had been overruled by the investigators' superiors/ Upheld by the Moscow City Court on 13/06/2019.	No relevant information		26,000
	62444/19 20/11/2019	Viktoriya Andreyevna BUYANTSEVA 1989	Sholokhov Igor Nikolayevich Kazan	On 23/05/2018 the applicant was taken to police station No. 17 "Yamashevskiy" in Kazan on suspicion of drug trafficking. She was released on 24/05/2018 at 00:45 a.m. No record of her detention was made. While in detention, the applicant was subjected to ill-treatment by police officers.	Forensic examination act No. 3680/2923, issued by the Tatarstan Forensic Bureau: abrasions in the region of the left knee joint, muscle strain of the right forearm and shoulder joint.	On 24/05/2018 complaint to the head of the police station /on 30/05/2018 refusal to open a criminal case. Then on 07/06/2018 complaint to the Novo-Savinovskiy District Investigative Committee in Kazan/refusals to open a criminal case on 09/06/2018, 22/06/2018, 12/07/2018, and 23/08/2018.	On 18/04/2019, 08/07/2019, and 16/09/2019 the Novo-Savinovskiy District Court in Kazan dismissed the applicant's appeals as the impugned refusals had been overruled by the investigators' superiors/On 18/06/2019, 27/08/2019, and 25/10/2019 respectively the Supreme Court of the Tatarstan Republic upheld those decisions.	The applicant was not charged with any offence.	Art. 5 (1) - unlawful detention - Detention (criminal) for more than three hours without any written record (see Fortalnov and Others v. Russia, nos. 7077/06 and 12 others, §§ 76-79, 26 June 2018).	26,000
	63119/19 22/11/2019	Kirill Sergeyevich MAKSIMENKO 1997 Deceased in 2021 Heirs: Yulia Aleksandrovna Maksimenko and Sergey Vladimirovich Maksimenko	Agagyulyan Ani Mesropovna Moscow	On 19/01/2019 officers of the Velikiy Novgorod Traffic Police Department stopped the applicant for a traffic violation. According to the applicant, after his refusal to get out of the car, the police officers forcibly pulled him out of the vehicle despite his warning that he was a disabled person with an artificial arm. Then they threw him on the hood of the police car and handcuffed him, having broken the arm prosthesis.	Ambulance certificate of 19/01/2017 no. 47/5856 by the 2-nd Ambulance Station: arterial hypertension, reaction to the situation described by the applicant. Forensic medical examination act no. 31 and 128 by the Novgorod Forensic Bureau: bruises and abrasions on his left arm and finger, face and neck. The injuries could have been caused by a hard blunt object on 19/01/2017.	On 19/01/2017 complaint to the police /Criminal case opened on 06/02/2017 and was discontinued on several occasions, last - 13/06/2018 as the use of force against the applicant was necessitated by his refusal to step out of the car.	On 18/02/2019 the Novgorodskiy District Court in the Novgorod Region rejected the applicant's complaint against the last decision to discontinue the proceedings /On 22/05/2019 the Novgorod Regional Court upheld it on appeal.	Administrative conviction for a traffic violation (25/04/2017, Novgorodskiy District Court of the Novgorod Region) and disobedience (19/01/2017, Novgorodskiy District Court of the Novgorod Region).		26,000
	11326/20 13/02/2020	Dmitriy Petrovich BOGDANOVICH 1974	Dyundin Vyacheslav Alekseyevich Orsk	The applicant was apprehended at 00.00 a.m. on 10/03/2018 in Ponomarevka village in the Orenburg Region by a police officer and taken to police department no. 2 "Sharlykskiy" on suspicion of unlicensed hunting on a snowmobile which had been found on 09/03/2018 with traces of blood on it. During the interview officer D. allegedly punched and kicked the applicant in the face, head, chest, and thighs. In the morning the applicant was released, no charges were filed against him. On the same day he was admitted to a hospital.	Medical certificate of the Ponomarevskaya Civil Hospital in the Orenburg Region on 14/03/2018: brain concussion, abrasion on the right temporal region, injury on the left side of the chest, injury and hematomas on the right thigh. Forensic examination of medical file no. 216 of 10/04/2018 by the Orenburg Forensic Bureau: abrasions of the right frontal area, concussion and hematomas on the right thigh could have resulted from the impact of a blunt object prior to the applicant's admission to the hospital on 10/03/2018. The injuries could have resulted from punching and kicking. The hematomas on the right thigh could have resulted from the collision with a snowmobile.	On 11/03/2018 complaint to the Orenburg Region investigative committee/ Latest (4th) refusal to open a criminal case issued on 31/10/2018.	On 26/04/2019 the Sharlykskiy District Court in the Orenburg Region rejected the applicant's complaint against the last refusal / on 31/10/2019 the Orenburg Regional Court upheld that decision on appeal.			26,000
	44455/20 01/10/2020	Maksim Aleksandrovich TIMOSHENKO 1983	Vanslova Yekaterina Nizhniy Novgorod	On 08/08/2019 the applicant was subjected to ill-treatment by two officers of the Krasnodar Region Department of the Federal Security Service. He was suffocated with a bag, hit in the head and chest, electrocuted in the back with a view to force him to confess to a crime.	Medical certificate of 08/08/2019 from emergency room of Public hospital in Gelendzhik: left thoracic contusion, abrasion of the left lumbar region. Forensic medical examination No. 826/2019 of 14/08/2019 by the Krasnodar Forensic Bureau: abrasions of the left lumbar region, abrasions of the anterior surface of the right forearm, bruising of the inner surface of the left shoulder. The injuries could have been inflicted within 4-7 days before the date of the examination.	On 08/08/2019 and 13/08/2019 complaints to the Gelendzhik police/ Refusal of 28/08/2019.	On 30/01/2020 the Novorossiyskiy Garrison Military Court rejected the applicant's complaint against the refusal to open a criminal case/ on 23/04/2020 the Southern Circuit Military Court upheld that decision.	No relevant information		26,000
	48448/21 20/09/2021	Yuriy Sergeyevich LIPSKIY 1988	Toreyeva Svetlana Anatolyevna Moscow	On 23/01/2019 four police officers of the Maryina Roshcha police station in Moscow apprehended the applicant at his workplace in Moscow and took him to the police station in the trunk of their car with his hands tied. At the station several police officers beat him on the head and body, handcuffed him to a radiator, put him on the floor face down, pressed his head with a foot, and applied electric shocks to his legs to make the applicant sign self-incriminating statements.	Forensic medical examination report №32-y of 23/01/2019 by the Moscow Forensic Bureau: hematoma on the forehead; multiple bloodstains on the face, forearm and back; abrasions on the forehead, chest and back - all likely caused by a hard blunt object within 2 days prior to the examination.	On 04/03/2019 the applicant raised ill-treatment allegation during his trial / refusal to initiate criminal case due to the lack of corpus delicti on 25/03/2019 and then on 26/04/2019 (the use of force against the applicant was justified as he had tried to abscond from the police).	On 18/11/2020 the Ostankinskiy District Court in Moscow rejected the applicant's appeal against the last refusal / upheld on 24/03/2021 by the Moscow City Court.	The applicant was charged with a sexual assault - no information on these proceedings is available.		26,000

[1] Plus any tax that may be chargeable to the applicants.