FARTUSHIN v. RUSSIA - 38887/09 (Judgment (Merits and Just Satisfaction) : Court (First Section)) [2015] ECHR 861 (08 October 2015)

In the case of Fartushin v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

          András Sajó, President,
          Mirjana Lazarova Trajkovska,
          Julia Laffranque,
          Paulo Pinto de Albuquerque,
          Linos-Alexandre Sicilianos,
          Erik Møse,
          Dmitry Dedov, judges,
and André Wampach, Deputy Section Registrar,

Having deliberated in private on 15 September 2015,

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

PROCEDURE

1. The case originated in an application (no. 38887/09) 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 a Russian national, Mr Sergey Valeryevich Fartushin (“the applicant”), on 25 May 2009.

2. The applicant was represented by the Committee against Torture, an interregional non-governmental organisation based in Nizhniy Novgorod. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3. The applicant alleged that he had been unlawfully deprived of his liberty and ill-treated in police custody, and that no effective investigation into his ill-treatment had been carried out.

4. On 31 August 2011 the application was communicated to the Government.

5. On 23 September 2014 the applicant’s legal representative informed the Court that the applicant had passed away on 24 June 2014, and that his widow, Mrs Irina Fartushina, had stated on behalf of herself and their minor daughter, Ksenia Fartushina, that they would like the case to proceed.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1985 and lived in Sarov, in the Nizhniy Novgorod region.

A. The applicant’s alleged ill-treatment in police custody

7. An all-terrain vehicle and a car were stolen from private garages in Sarov in February and April 2008, respectively. An investigation unit at the Sarov police department (управление внутренних дел г. Саров, “the Sarov UVD”) instituted criminal proceedings into the thefts. The police had information about the applicant’s involvement in the thefts.

8. At about 10.40 a.m. on 5 May 2008, V., an operative agent of the Sarov UVD, contacted the applicant by telephone and requested him to come to office no. 320 at the Sarov police station at 2 p.m. for questioning. At 2 p.m. on the same day the applicant arrived at the police station, as requested. He was accompanied by K., F., Zh. and P., who stayed outside awaiting his return. A police officer on duty registered the applicant’s arrival at the police station at 2 p.m.

9. The applicant provided the following account of events at the police station. In office no. 320 police officer V. and the chief of the criminal investigation unit of the Sarov UVD, B., demanded that he confess to the thefts. Following his refusal, he was taken to a nearby office, shackled and beaten up by B., who kicked and punched him in the head, torso and extremities and jumped on his head, while V. was shouting threats at the applicant. Afterwards the applicant was kept in different offices of the criminal investigation unit. He was given no food or drink. He felt unwell and vomited blood. No medical help was provided to him despite his requests.

10. On 6 May 2008 the applicant’s wife lodged an application with the Sarov town prosecutor and the head of the Sarov town police department, complaining that the applicant was being held at the police station unlawfully, that he had a serious stomach ulcer condition and that a lack of food could cause bleeding. A lawyer appointed by the applicant’s family was unable to locate him at the police station.

11. According to the police records, at midday on 6 May 2008 investigator K. of the Sarov UVD questioned the applicant as a witness in the theft case.

12. According to documents prepared by investigator K. and police officer V., at an unspecified time on the same day the investigator requested that the applicant, who was suspected of having committed the theft, be brought to the police station for investigative measures. Police officer V. reported that he had found the applicant in the street at 8 p.m. and taken him to the police station at 8.15 p.m. on 6 May 2008.

13. At 8.20 p.m. on 6 May 2008 the investigator drew up a record of the applicant’s arrest as a suspect in the criminal proceedings concerning the theft of the all-terrain vehicle.

14. At 8.55 p.m. the applicant was placed in a temporary detention facility at the Sarov UVD (“IVS”). The applicant’s cellmate C. saw injuries on the applicant’s head and learned from him that he had been beaten up by police officers in order to force him to confess to a crime.

15. At 9.15 p.m. an ambulance was called. An ambulance doctor diagnosed the applicant with a stomach ulcer. According to the IVS records, the applicant had abrasions on his arms.

16. On 7 May 2008 the applicant’s lawyer visited the applicant in the IVS and photographed the injuries on his body. According to the applicant, he had bumps and bruises on his head and neck and was unable to hear well, and he also had bruises on his torso and extremities.

17. On 8 May 2008 the applicant was brought before a judge, who ordered that he be remanded in custody.

18. The applicant and a number of other persons were charged with the theft of the all-terrain vehicle and the car.

B. Inquiry into the applicant’s alleged ill-treatment

1. Investigative Committee’s refusal to open criminal proceedings

19. On 7 May 2008 the applicant lodged a complaint with the Sarov town prosecutor, alleging that he had been unlawfully deprived of his liberty on 5 and 6 May 2008 and ill-treated in police custody. He claimed that he could identify the police officers responsible for his ill-treatment. Similar complaints were also lodged by the applicant’s mother, his wife and his lawyer.

20. On 8 May 2008 the prosecutor’s office forwarded the complaints to the Sarov Investigation Department of the Investigative Committee at the Nizhniy Novgorod regional prosecutor’s office (the “Sarov Investigative Committee”). On the same day the applicant’s lawyer lodged a similar application with the Sarov Investigative Committee.

21. On 12 May 2008 the applicant was examined by a forensic medical expert. According to the expert’s report (акт судебно-медицинского освидетельствования) no. 572, the applicant had a bruise on his back measuring 3 to 4 cm, an abrasion measuring 4 to 10 cm on his left forearm and an endermic haemorrhage on his chest. The expert concluded that the injuries could have been inflicted by blunt objects on 5-6 May 2008.

22. On 14 May 2008 an investigator of the Sarov Investigative Committee received explanations by the applicant, who maintained his complaints. The applicant stated, in particular, that N.P., who had been held in the same office with his hands shackled, had witnessed the applicant’s ill-treatment by police officer B. on 5 May 2008. According to explanations by police officers B. and V., in the course of operative-search activities the police had obtained information about the applicant’s involvement in the theft of the all-terrain vehicle. V. had called the applicant on 5 May 2008 and requested him to come to the police station for questioning by the investigator. They denied the applicant’s allegations about his unlawful detention and ill-treatment, stating that he had been brought to the police station on 6 May 2008 at the investigator’s request (see paragraph 12 above). V. also stated that in the evening of 6 May 2008 N.P., another suspect in the thefts case, had been brought to the police station at the same time as the applicant, and that N.P. and the applicant had been held separately. N.P., whose explanations were also received by the investigator, stated that on the evening of 6 May 2008 he had gone to the police station for questioning and that he had not seen the applicant there.

23. On 22 May 2008 the investigator of the Sarov Investigative Committee ordered that no criminal proceedings be instituted in respect of the applicant’s complaints of unlawful detention and ill-treatment in view of the lack of constituent elements of a crime in the acts of police officers B. and V. and investigator K., pursuant to Article 24 § 1 (2) of the Code of Criminal Procedure (“CCrP”). He stated that there were no reasons to believe that the injuries recorded by the forensic medical expert had been sustained while the applicant had been held at the police station, as this had been denied by the police officers and N.P.

24. On 22 July 2008 that decision was revoked by the Sarov Investigative Committee as the inquiry on which it was based was considered incomplete. The following day, a new decision not to open a criminal case was taken and on 6 August it was revoked for the same reason. Among those whose explanations were received by the investigator in the course of an additional inquiry were K. and F. (see paragraph 8 above). They stated that on 5 May 2008 they had gone to the police station with the applicant, Zh. and P. in the applicant’s car, that they had seen the applicant, who had had no injuries at that time, enter the police station at 2 p.m. and had waited for him outside. At 3 or 4 p.m. on 5 May 2008, while waiting for the applicant, who had still not returned, F. had seen N.P. enter the police station at the request of police officer V. and another person.

25. A new decision not to open a criminal case was taken on 6 October 2008. It was revoked on 20 October 2008 and a similar decision was taken on 6 November 2008. The applicant, whose explanations were again sought by the investigator, stated that his ill-treatment by police officer B. on 5 May 2008 had lasted for about an hour, between 4.30 p.m. and 5.30 p.m. On 25 May 2009 the higher investigative committee at the Nizhniy Novgorod regional prosecutor’s office set aside the decision of 6 November 2008 on the grounds that it was based on an incomplete inquiry.

26. The most recent decision not to open a criminal case on the grounds that the constituent elements of a crime in the acts of police officers B. and V. and investigator K. were missing was taken on 10 June 2009 pursuant to Article 24 § 1 (2) of the CCrP. The same reasoning was given as in the initial decision of 22 May 2008 and in the decisions which had been taken in the meantime. It was mainly based on the denial by the police officers and investigator K. that the applicant had been ill-treated and detained before 8.20 p.m. on 6 May 2008.

2. Domestic courts’ review of the refusal to institute criminal proceedings under Article 125 of the Code of Criminal Procedure

27. The applicant appealed against the investigator’s decision of 22 May 2008 to the Sarov Town Court under Article 125 of the CCrP. On 1 August 2008 the Town Court ruled that the application should not be examined, and terminated the proceedings on the grounds that on 22 July 2008 the Sarov Investigative Committee had revoked the investigator’s decision.

28. Court appeals lodged by the applicant against the investigator’s subsequent decisions of 23 July and 6 October 2008 were not examined for the same reason (the Town Court’s decisions of 7 August and 20 October 2008).

29. On 6 March 2009 the Town Court examined the applicant’s complaint seeking to have the failure by the head of the Sarov Investigative Committee to carry out an inquiry into an application lodged by the applicant’s counsel on 22 January 2009 declared unlawful. It was alleged in that application that investigator K., police officer V. and others had forged the documents concerning the time at which the applicant had been taken into custody. The Town Court granted the applicant’s request and declared the inactivity on the part of the head of the Sarov Investigative Committee unlawful.

30. On 3 August 2009 the Sarov Town Court dismissed the applicant’s appeal against the Sarov Investigative Committee’s decision of 10 June 2009 (see paragraph 26 above), holding that the decision was lawful and well-grounded. On 15 September 2009 the Nizhniy Novgorod Regional Court dismissed the applicant’s appeal and fully endorsed the first-instance court’s decision.

THE LAW

I. LOCUS STANDI

31. The Court takes note of the death of the applicant in 2014, after the introduction of the present application, and of the wish expressed by his widow and his daughter to continue the application before the Court in his name.

32. The Government submitted that the rights under Articles 3, 5 and 13 of the Convention were of an eminently personal and non-transferable nature and that it was therefore no longer justified to continue the examination of the application, which should be struck out of the Court’s list of cases.

33. Insofar as the Government referred to the cases of Biç and Others v. Turkey (no. 55955/00, §§ 22-23, 2 February 2006), and Sanles and Sanles v. Spain (dec.), no. 48335/99, 26 October 2000), the Court reiterates that it has differentiated between applications where the direct victim had died before the application was lodged with the Court, as in the above two cases, and those where he or she has died after the application was lodged, as in the present application, which was lodged by the applicant himself. In the latter case, the Court has accepted that the next-of-kin or heir may in principle pursue the application, provided that he or she has sufficient interest in the case (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 97, ECHR 2014). It is not only material interests which the successor of a deceased applicant may pursue by his or her wish to maintain the application. Human rights cases before the Court generally also have a moral dimension and persons near to an applicant may thus have a legitimate interest in ensuring that justice is done, even after the applicant’s death (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000-XII). Whether the rights at issue are transferable to an heir willing to pursue an application on behalf of a deceased person is not therefore a decisive factor (see Ergezen v. Turkey, no. 73359/10, § 29, 8 April 2014).

34. The Court thus accepts that the applicant’s widow and daughter have a legitimate interest in pursuing the application on his behalf. The Government’s preliminary objection should therefore be dismissed.

35. The Court considers that the conditions for striking the case out of the list of pending cases, as defined in Article 37 § 1 of the Convention, have not been met, and that it must continue to examine the application at the request of Mrs Irina Fartushina and Ms Ksenia Fartushina. The Court will refer to the late Mr Fartushin as “the applicant”.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

36. The applicant complained that he had been ill-treated in police custody and that no effective investigation into his complaint had been carried out. He relied on Article 3 of the Convention, which reads as follows:

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

A. Admissibility

37. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

38. The Government acknowledged a violation of the applicant’s rights guaranteed by Article 3. They noted that the investigative authority’s conclusion that the constituent elements of a crime in the actions of the police officers were missing had been arrived at on the basis of the police officers’ own statements, whereas the statements by the applicant’s family members and friends had not been taken into account. The contradictions between those statements had not been reconciled and a reasonable explanation for the applicant’s injuries had not been provided.

39. The Court notes that the applicant’s injuries were sustained during his detention in police custody. The State was accordingly under an obligation to provide a plausible explanation of how his injuries had been caused (see Ribitsch v. Austria, 4 December 1995, § 34, Series A no. 336; and, recently, Bulgaru v. the Republic of Moldova, no. 35840/09, § 17, 30 September 2014; and Aktürk v. Turkey, no. 70945/10, § 33, 13 November 2014). The applicant’s assertion that the injuries were caused as a result of his ill-treatment by police officers was credible, supported by the detention facility records and a forensic medical expert’s report (see paragraphs 15 and 21 above), and were coherent with witness statements (see paragraph 24 above). The State was therefore obliged to carry out an effective official investigation (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV).

40. The investigative authorities dismissed the applicant’s criminal complaint, based on the denial by the police officers and the investigator of any wrongdoing on their part, without offering any explanation as to how the applicant’s injuries had been caused. They did so as a result of the pre-investigation inquiry and never opened a criminal investigation into the applicant’s alleged ill-treatment. Their citing of N.P.’s statements in support of their decision was not in accordance with the statements themselves, which related to the events of 6 May 2008, whereas the alleged ill-treatment had taken place the previous day (see paragraphs 22, 24 and 25 above).

41. Judicial review of the investigative authorities’ refusals to open a criminal case was inaccessible following the revocation of those decisions by the investigative authorities (see Razzakov v. Russia, no. 57519/09, § 61, 5 February 2015). Thereafter, the domestic courts fully endorsed the most recent refusal to open a criminal investigation (see paragraphs 27-28 and 30 above).

42. In the absence of a plausible explanation from the authorities as to the cause of the injuries sustained by the applicant in police custody, the Court finds that his injuries were the result of ill-treatment for which the Government bore responsibility.

43. The ill-treatment was intentional, with the purpose of forcing the applicant to confess to a crime, and caused him considerable fear, anguish and mental suffering. Having regard to the nature and circumstances of the ill-treatment, the Court finds that it amounted to inhuman and degrading treatment.

44. As regards the procedural obligation under Article 3, the Court has previously found that in the context of the Russian legal system in cases of credible allegations of treatment proscribed under Article 3 of the Convention, it is incumbent on the authorities to open a criminal case and conduct a proper criminal investigation in which the whole range of investigative measures are carried out and which constitutes an effective remedy for victims of police ill-treatment under the domestic law. The mere fact of an investigative authority’s refusal to open a criminal investigation into credible allegations of serious ill-treatment in police custody is indicative of the State’s failure to comply with its obligation under Article 3 to carry out an effective investigation (see Lyapin v. Russia, no. 46956/09, §§ 129 and 132-36, 24 July 2014).

45. The Court has no reason to hold otherwise in the present case. It finds that the authorities’ refusal to open a criminal case and conduct a criminal investigation into the applicant’s alleged ill-treatment in police custody amounted to a failure to conduct an effective investigation.

46. There has therefore been a violation of Article 3 under its substantive and procedural limbs.

III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

47. The applicant complained under Article 5 of the Convention about his detention at the Sarov police station from 2 p.m. on 5 May 2008 until 8.20 p.m. on 6 May 2008. Article 5 reads, in so far as relevant, as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

A. Admissibility

48. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

49. The Government acknowledged a violation of the applicant’s rights guaranteed by Article 5.

50. The Court emphasises the fundamental importance of the guarantees contained in Article 5 of the Convention for securing the right of individuals in a democracy to be free from arbitrary detention by the authorities. It has reiterated in that connection that any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law, but must equally be in keeping with the very purpose of Article 5, namely, to protect the individual from arbitrariness. In order to minimise the risks of arbitrariness, Article 5 provides a corpus of substantive rights intended to ensure that the act of deprivation of liberty be amenable to independent judicial scrutiny and to secure the accountability of the authorities for that measure (see Kurt v. Turkey, 25 May 1998, §§ 122-23, Reports of Judgments and Decisions 1998-III, and Fatma Akaltun Fırat v. Turkey, no. 34010/06, § 29, 10 September 2013). The requirements of Article 5 §§ 3 and 4 with their emphasis on promptness and judicial control assume particular importance in this context (see Kurt, cited above, § 123). Prompt judicial intervention may lead to the detection and prevention of serious ill-treatment which violates the fundamental guarantees contained in Article 3 of the Convention (see Aksoy v. Turkey, 18 December 1996, § 76, Reports 1996-VI). What is at stake is both the protection of the physical liberty of individuals as well as their personal security in a context which, in the absence of safeguards, could result in subversion of the rule of law and place detainees beyond the reach of the most rudimentary forms of legal protection (see Kurt, cited above, § 123).

51. The Court observes that the police had information that the applicant had allegedly been involved in the theft which they were investigating. Police officer V. requested the applicant by telephone to come to the police station for questioning. The applicant arrived at the police station at V.’s request at 2 p.m. on 5 May 2008. That fact is confirmed by the police station logbook and the witnesses (see paragraphs 8 and 24 above). The next trace of the applicant’s presence at the police station can be found in the record of his questioning by the investigator as a witness in the theft case (see paragraph 11 above) at midday the following day. According to the complaints lodged with the authorities by the applicant’s wife, his mother and his lawyer, the applicant was not released after entering the police station on 5 May 2008 (see paragraphs 10 and 19 above). The record of his arrest as a suspect was drawn up by the investigator at 8.20 p.m. on 6 May 2008 (see paragraph 13 above). The Court also observes that in the course of the official inquiry into the applicant’s criminal complaint of unlawful detention, the investigative authorities did not acknowledge that he had been detained continuously at the police station from 2 p.m. on 5 May 2008 until 8.20 p.m. on 6 May 2008, and their decision was fully endorsed by the domestic courts (see paragraph 30 above).

52. Having noted the Government’s acknowledgment of a violation of Article 5 in the present case, the Court finds it established that the applicant was detained at the police station continuously from 2 p.m. on 5 May 2008 until 8.20 p.m. on 6 May 2008, that is, for more than thirty hours. During that time he was interviewed by the police about his alleged involvement in the theft and was subjected to inhuman and degrading treatment in order to force him to confess to the theft (see paragraph 43 above).

53. The Court considers that although the applicant was detained from the very beginning as a suspect in a criminal case, his detention was not recorded as such until 8.20 p.m. on 6 May 2008. The lack of any acknowledgment or records of his detention as a suspect in the preceding period led to his being deprived of access to a lawyer and all other rights of a suspect, which meant that he was left completely at the mercy of those holding him. As such, he was vulnerable not only to arbitrary interference with his right to liberty but also to ill-treatment (see paragraph 43 above).

54. The Court finds that the applicant’s unrecorded detention was a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention, and was incompatible with the requirement of lawfulness and with the very purpose of Article 5. There has accordingly been a violation of this Article (see Belevitskiy v. Russia, no. 72967/01, §§ 82-85, 1 March 2007, and Aleksandr Sokolov v. Russia, no. 20364/05, §§ 70-73, 4 November 2010, in which the Court found a violation in comparable circumstances involving unrecorded detention of persons suspected of having committed criminal offences; see also El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, §§ 236-237, ECHR 2012).

IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

55. The applicant complained that the authorities’ refusal to institute criminal proceedings in respect of his complaints of ill-treatment in police custody and unlawful detention had made it impossible for him to be granted the status of “victim”, which could have entitled him to compensation for the alleged ill-treatment and unlawful detention. He relied on Article 13 in conjunction with Article 3 and 5 of the Convention. Article 13 of the Convention reads as follows:

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

56. The Government acknowledged that the domestic remedies of which the applicant had availed himself had not been effective. They stressed, however, that the domestic legal system did, in principle, provide for effective remedies for victims of police ill-treatment. Firstly, there was an effective criminal-law remedy - notably, a criminal investigation into allegations of ill-treatment by police officers - which could lead to the conviction of police officers. Secondly, investigative authorities’ acts and decisions, in particular refusals to open a criminal case, were amenable to judicial review under Article 125 of the Code of Criminal Procedure. Thirdly, there were civil judicial remedies to complain about decisions and acts of State organs and their officials and to request compensation for any damage caused.

57. The applicant disagreed with the Government’s assertion that there existed effective domestic remedies for ill-treatment in police custody.

A. Admissibility

58. The Court notes that the applicant’s complaint under Article 13 is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

59. The Court observes that the complaint under Article 13 in conjunction with Article 3 as submitted by the applicant, who did not attempt to institute any proceedings for compensation, was limited to a general statement without any references to domestic law or practice. Having regard to the finding of a violation of Article 3 under its procedural head on account of the respondent State’s failure to carry out an effective investigation, the Court considers that the complaint as submitted does not raise any separate issue in the circumstances of the present case and that it is not necessary to examine it under Article 13, taken in conjunction with Article 3 of the Convention.

60. As regards the applicant’s reference to Article 5 of the Convention, according to the Court’s established case-law the more specific guarantees of Article 5 §§ 4 and 5, being a lex specialis in relation to Article 13, absorb its requirements (see Dimitrov v. Bulgaria (dec.), no. 55861/00, 9 May 2006). In view of its findings of a violation of Article 5 of the Convention on account of the applicant’s unrecorded detention, the Court considers that no separate issue arises in respect of Article 13 read in conjunction with Article 5 of the Convention in the circumstances of the present case (see, for example, Chitayev v. Russia, no. 59334/00, §§ 173 and 204, 18 January 2007).

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

61. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

62. The applicant claimed 40,000 euros (EUR) in respect of non-pecuniary damage.

63. The Government did not comment.

64. Making its assessment on an equitable basis, the Court awards the applicant EUR 30,000, plus any tax that may be chargeable.

B. Costs and expenses

65. The applicant also claimed EUR 6,018.75 for legal costs and 2,837.48 Russian roubles for postal expenses incurred before the Court.

66. The Government did not comment.

67. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 4,600 for the proceedings before it, plus any tax that may be chargeable to the applicant. This amount is to be paid into the bank account of the applicant’s representative, as requested by the applicant.

C. Default interest

68. 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. Holds that the applicant’s heirs, Mrs Irina Fartushina and Ms Ksenia Fartushina, can pursue the application;

2. Declares the application admissible;

3. Holds that there has been a violation of Article 3 of the Convention under its substantive and procedural limbs;

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

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

6. Holds

(a) that the respondent State is to pay the applicant’s heirs, Mrs Irina Fartushina and Ms Ksenia Fartushina jointly, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 30,000 (thirty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 4,600 (four thousand six hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid into the bank account of the applicant’s representative;

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

7. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 8 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

André Wampach András Sajó
Deputy Registrar President

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> FARTUSHIN v. RUSSIA - 38887/09 (Judgment (Merits and Just Satisfaction) : Court (First Section)) [2015] ECHR 861 (08 October 2015) URL: http://www.bailii.org/eu/cases/ECHR/2015/861.html Cite as: [2015] ECHR 861