ZAKHARIN AND OTHERS v. RUSSIA - 22458/04 (Judgment (Merits and Just Satisfaction) : Court (First Section)) [2015] ECHR 996 (12 November 2015)

In the case of Zakharin and Others v. Russia,

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

          András Sajó, President,
          Elisabeth Steiner,
          Khanlar Hajiyev,
          Paulo Pinto de Albuquerque,
          Linos-Alexandre Sicilianos,
          Erik Møse,
          Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 20 October 2015,

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

PROCEDURE

1. The case originated in an application (no. 22458/04) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Russian nationals, Mr Mikhail Sergeyevich Zakharin (“the first applicant”), Mr Pyotr Pavlovich Lunkin (“the second applicant”), Mr Oleg Vladislavovich Zyryanov (“the third applicant”) and Ms Natalya Batskova (“the fourth applicant”), on 31 May 2004.

2. The applicants, who had been granted legal aid, were represented by Mr S. Brovchenko, a lawyer practising in Moscow. 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 first, second and third applicants complained, in particular, that they had sustained serious injuries at the hands of the police and that the domestic authorities had failed to carry out an effective investigation. The fourth applicant complained, in particular, that her late partner had been ill-treated and had subsequently died while in police custody and that there had been no effective investigation thereof.

4. On 14 September 2010 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The first applicant was born in 1979, the second and third applicants were born in 1974, and the date of birth of the fourth applicant is unknown. The fourth applicant is the common-law wife of Mr Pavel Aleksandrovich Bazhenov (“the fourth applicant’s partner”). The second and fourth applicants live in Irkutsk Region and Irkutsk respectively. The first and third applicants are serving prison sentences in Irkutsk Region.

A. Circumstances relating to the first and third applicants and the fourth applicant’s partner

1. Arrest, alleged ill-treatment and detention

6. On 14 October 2003 the first and third applicants and the fourth applicant’s partner were arrested and taken to the police station on suspicion of murder. They were allegedly intimidated by police officers seeking to extract self-incriminating statements.

7. On 15 October 2003 a forensic medical examination was conducted in respect of the first and third applicants and the fourth applicant’s partner. It revealed that the first applicant had abrasions on his left shoulder, and bruises on both ears and on the back of his thorax; the third applicant had bruises on his left hip and under his jaw. The expert concluded that those injuries had been sustained the day prior to the examination and that they had not caused any permanent damage to the applicant’s health. The fourth applicant’s partner was discovered to have a closed nose fracture which amounted to slight damage to his health.

8. On 16 October 2003 the Oktyabrskiy District Court of Irkutsk (“the District Court”) authorised the detention of the first and third applicants and the fourth applicant’s partner pending the investigation. It relied on the gravity of the charges and the risk that they might interfere with the administration of justice (abscond, resume their criminal activity or threaten witnesses). They were placed in remand prison IZ-38/1 in Irkutsk.

9. On 24 October 2003 charges of aggravated murder were brought against them.

10. On 11 December 2003 the District Court extended the detention of the first and third applicants and the fourth applicant’s partner until 5 March 2004 on the same grounds. Those decisions were upheld on appeal by the Irkutsk Regional Court (“the Regional Court”) in respect of the first applicant on 29 January 2004 and in respect of the third applicant and the fourth applicant’s partner on 3 February 2004.

11. The first and third applicants’ detention was subsequently extended, on the same grounds, on 3 March and 4 March 2004 respectively, until 5 June 2004. The Regional Court upheld those decisions on appeal in respect of the first applicant on an unspecified date and in respect of the third applicant on 21 April 2004.

2. The first applicant’s account of his further ill-treatment

12. According to the first applicant, between 14 and 16 October 2003 the police subjected him to beatings, torture with electric wires, and deprivation of food and sleep.

13. Subsequently, for several days starting from 17 October 2003 the first applicant was intimidated by one of his cellmates, S. Ye. (nicknamed “the Nazi”), who had been instructed by the police to extract the applicant’s confession. As a result, on 21 October 2003 the applicant attempted suicide by cutting his left forearm.

14. On the same day the applicant was examined by a doctor, who reported superficial cuts on his left forearm.

15. On 4 November 2003 the applicant was taken to the police station. Throughout the day police officers allegedly beat him in the head, kidneys and genitals, tortured him with electric wires and threatened to kill him and to rape him. As a result, he attempted suicide by cutting his neck with a blade.

16. On the same day the applicant was examined by a doctor, who recorded the following injuries: a four-centimetre long cut on his neck and six superficial two-centimetre long cuts on his left forearm.

3. The third applicant’s account of his further ill-treatment

17. On 11 November 2003 the third applicant was taken for questioning to the police station, where he was beaten up by police officers S.Sh., S.S. and Ye.Kh. For an hour and a half the police officers allegedly kicked and punched the applicant, who was handcuffed and kneeling, and beat him with a stick. Unable to withstand the torture, the applicant jumped out of a third-floor window of the police station. However, as the applicant’s action was considered an attempt to escape, criminal proceedings were brought against him under Articles 30 § 3 and 313 § 1 of the Criminal Code (attempted escape).

18. The following day, on 12 November 2003 the third applicant was taken to hospital and diagnosed with a fracture to his right upper arm and contusions on his thorax and spinal cord, allegedly caused by the jump from the window.

4. The account of further ill-treatment of the fourth applicant’s partner

19. As indicated above the first and third applicants and the fourth applicant’s partner were placed in remand prison IZ-38/1. The fourth applicant submitted that as from 24 October 2003 and for several days onwards her partner was beaten up by other inmates. He was not given any food and not allowed to sleep, and in the mornings he was taken to the police station where the ill-treatment continued.

20. From 25 November to 11 December 2003 the applicant’s partner was kept in detention facility IZ-24/1 in Krasnoyarsk, where, allegedly with the tacit consent of the facility’s officers, he was constantly ill-treated by other inmates.

21. From 11 December 2003 until 15 January 2004 the fourth applicant’s partner was detained again in remand prison IZ-38/1 in Irkutsk. Two of the inmates - S.Ye. and A. - deprived him of food and sleep, and threatened him with murder and rape. The chief of police, A.S., threatened him with rape. Several days later the applicant’s partner was raped by other inmates and the act was videotaped. He was then blackmailed with the tape. Finally, on 12 January 2004 he confessed. On 3 February 2004 the applicant’s partner was transferred to a solitary confinement cell.

22. On 5 February 2004 the applicant’s partner was found hanged.

5. Investigation into the ill-treatment by the police

23. The first and the third applicants and the fourth applicant’s partner complained to the prosecutor’s office of their ill-treatment at the hands of the police. The initial complaint concerned the alleged ill-treatment on 14 October 2003. Separate complaints were brought later in connection with other alleged instances of ill-treatment (see paragraphs 12, 13, 15 and 17 above).

24. On 20 November 2003 the Deputy Prosecutor of Irkutsk Region refused to open criminal proceedings against the police officers. The decision read as follows:

“...

[The first applicant] submitted that on 14 October 2003 he had been arrested by the police. When being brought to the police station he had been ill-treated by the police officers [description of the beatings]. On 21 October 2003 he cut his left forearm [because he had had a conflict with his cellmates and wanted to be transferred to a different cell]. On 4 November 2003 [the first applicant] cut his neck [because he had been beaten up by the police officers].

[The fourth applicant’s partner] submitted that on 14 October 2003 he had been arrested by the police and brought to the police station where physical force had been applied to him [description of the beatings]. He could not describe the officers who had ill-treated him. On 11 November 2003 he was again ill-treated; the police officers tortured him with electric wires and beat him up.

[The third applicant] submitted that police officers ill-treated him and he was compelled to jump out of the window.

...

[Chief police officer G.] submitted that on 14 October 2003 [the first and third applicants and the fourth applicant’s partner] had been arrested on suspicion of having committed particularly serious crimes. They showed active resistance during the arrest and therefore physical force and cuffing were applied to them. After the arrest [the above persons] were brought to the police station. The first applicant and the fourth applicant’s partner had injuries which had been inflicted on them at the arrest. Subsequently the first applicant and the fourth applicant’s partner were taken to the investigator for participation in the investigative actions. No physical or mental coercion was applied to them ...

Similar statements were given by police officers Sh., S. and P. [The latter] added that on 4 November 2003 [the first applicant] participated in an investigative action at the police station. After the investigative action was completed, he and the [first applicant] remained waiting in office no. 302 for the applicant to be taken back to the remand prison. [The first applicant] was nervous, [he] expressed his fears of receiving a long sentence. During the conversation he cut his neck. He was provided with medical aid and taken to the remand prison, where he was examined by a doctor.

According to the reports of the forensic medical examinations, the injuries of [the first and third applicants] did not cause any permanent damage to their health, and the injuries of [the fourth applicant’s partner] caused slight damage to his health. The [above] injuries could have originated from the impact of hard blunt objects with a limited surface area, which could be a fist or a foot.

These injuries were caused to [the first and third applicants and the fourth applicant’s partner] at their arrest by the police officers. An inquiry was carried out in accordance with Article 144 of the Code of Criminal Procedure which established that [the first and third applicants and the fourth applicant’s partner] had shown active resistance during their arrest and the police had applied physical force and special means to them pursuant to Articles 12-14 of the Law on police. On 18 November 2003 the institution of the criminal proceedings against the police officers was refused in the absence of constituent elements of a crime in their actions.

An inquiry was carried out in accordance with Article 144 of the Code of Criminal Procedure into [the first applicant’s] causing himself injuries on 21 October 2003. On 22 October 2003 the institution of the criminal proceedings was refused.

Bodily injuries in the form of cutting wound of the neck were self-inflicted by the [first applicant], which is confirmed by the latter’s statements. No other injuries were discovered on [the first applicant] at his examination on 4 November 2003. This fact disproves [the first applicant’s] allegation of having been beaten up by the police on that day.

On 11 November 2003 [the third applicant] jumped out from the third-floor window of the police station in an attempt to escape. Criminal proceedings were instituted against him under Articles 30 § 3 and 313 § 1 of the Criminal Code.[1]

No evidence was established during the inquiry to substantiate the allegations that police officers Sh., S., G. and P. had applied physical and mental coercion to [the first and third applicants and the fourth applicant’s partner]. The submissions made in this respect by [the latter] are unsubstantiated and far-fetched.

...”

25. On 4 March 2004 the Prosecutor of Irkutsk Region set aside the decision of 20 November 2003 and opened criminal proceedings against a number of police officers under Article 286 § 3 (a) of the Russian Criminal Code (Abuse of office associated with the use of violence or entailing serious consequences).

26. On 8 August 2006, however, the criminal proceedings were discontinued owing to the absence of constituent elements of a crime in the actions of the police officers. The applicants did not appeal against this decision in court.

6. Investigation into the death of the fourth applicant’s partner

27. On 11 February 2004 the Irkutsk Regional Prosecutor’s Office instituted criminal proceedings into the death of the fourth applicant’s partner under Article 110 of the Criminal Code (incitement to suicide).

28. On 11 May 2004 a post-mortem examination of the applicant’s partner was completed. It was established that he had died as a result of strangling. Apart from visible marks on his neck, the following injuries were recorded: abrasions on the neck, the lumbar region, the chest, the right forearm, the right wrist and the right hand; bruises and abrasions on the forehead; bruises in the soft tissues of the neck; and a hemorrhage in the mucous membrane of the anus.

29. On 26 June 2006 the criminal proceedings were discontinued owing to the absence of evidence of a crime. It was established that on 3 February 2004 the fourth applicant’s partner had been transferred to a solitary confinement cell after his lawyer had complained that the former had been subjected to abuse by other inmates. Thereafter, on 5 February 2004 the fourth applicant’s partner was found hung in the cell. The forensic medical expert concluded that the death had occurred as a result of strangling. It was further established that on the day of his death the fourth applicant’s partner had been kept in the cell alone, and that the lawyer’s allegations that his client had been ill-treated by other inmates had not been confirmed.

30. The lawfulness of the above decision was challenged before the court by the father of the deceased, Mr A. Bazhenov, who was granted victim status in the relevant proceedings.

31. On 16 July 2007 the Kuybyshevskiy District Court of Irkutsk found the above decision lawful and justified. It was not appealed against to the Regional Court.

7. The conviction of the first and third applicants

32. On 25 December 2006 the Regional Court convicted the first and third applicants, along with five other co-defendants, of banditry, aggravated murder and robbery. It sentenced the first applicant to life imprisonment and the second applicant to twenty years’ imprisonment. The trial court examined the allegations of police ill-treatment in so far as the admissibility of evidence was at issue. It heard the applicants, examined the medical evidence, and questioned the applicants’ former cellmates and the police officers allegedly involved in the ill-treatment. Having taken into account the conclusions of the investigation, the court held that no unlawful methods of interrogation had been used against the applicants.

33. On 25 September 2007 the Supreme Court of Russia upheld the judgment on appeal.

B. Circumstances relating to ill-treatment of the second applicant and investigation thereof

34. On 5 September 2003 the flat of one of the victims was searched within the framework of the murder case involving the first and third applicants and the fourth applicant’s partner. The second applicant, who was found armed inside the flat, was taken to the police station for identification and questioning. He was kept there until 7 September 2003. According to the second applicant, police officers struck him in the area of his only kidney, tried to throw him out of the window, then forced him out onto the windowsill, from where he lost his balance and fell three floors down.

35. From 7 September to 7 October 2003 the second applicant underwent treatment in the traumatology unit of Angarsk hospital no. 36 for a cerebral contusion, massive damage to the soft tissue of his body and extremities, diffused hypodermic and subfascial haematomas, multiple abrasions on the head and extremities, kidney contusion, compression syndrome and right-sided post-traumatic pneumonia.

36. Meanwhile, on 8 September 2003 the applicant sought to institute criminal proceedings against the police officers. However, on 2 October 2003 the Deputy Prosecutor of the Irkutsk Region refused to open criminal proceedings, having arrived at the conclusion that the applicant had jumped out of the window in an attempt to escape. The applicant challenged the lawfulness of that decision in court.

37. On 22 December 2003 the Kirovskiy District Court of Irkutsk found the decision lawful and justified.

38. The applicant did not appeal against the judgment before the Regional Court.

II. RELEVANT DOMESTIC LAW AND PRACTICE

39. The Criminal Code of the Russian Federation (Law no. 63-FZ of 13 June 1996) provides that the actions of a public official which clearly exceed his authority and entail a substantial violation of an individual’s rights and lawful interests, committed with violence or the threat of violence, are punishable by three to ten years’ imprisonment, with a prohibition on occupying certain posts or engaging in certain activities for a period of up to three years (Article 286 § 3 (a)).

40. The Code of Criminal Procedure of the Russian Federation in force since 1 July 2002 (Law no. 174-FZ of 18 December 2001, the “CCrP”), establishes that a criminal investigation may be initiated by an investigator or prosecutor following a complaint from an individual (Articles 140 and 146). Within three days of receiving such a complaint, the investigator or prosecutor must carry out a preliminary inquiry and take one of the following decisions: (1) to open criminal proceedings if there are reasons to believe that a crime has been committed; (2) to refuse to open criminal proceedings if the inquiry reveals that there are no grounds to initiate a criminal investigation; or (3) to refer the complaint to the relevant investigative authority. The complainant must be notified of any decision taken. Refusal to open criminal proceedings is amenable to appeal to a higher-ranking prosecutor or a court of general jurisdiction (Articles 144, 145 and 148). A prosecutor is responsible for overall supervision of the investigation (Article 37). He or she can order specific investigative actions, transfer the case from one investigator to another or order an additional investigation.

41. Article 125 of the CCrP provides for judicial review of decisions, acts or inaction on the part of an inquirer, investigator or prosecutor which affect constitutional rights or freedoms. The judge is empowered to verify the lawfulness and reasonableness of the decision, act or inaction and to grant the following forms of relief: (i) to declare the impugned decision, act or inaction unlawful or unreasonable and to order the authority concerned to remedy the violation; or (ii) to dismiss the complaint.

42. In its Resolution of 10 February 2009 the Plenary Supreme Court of Russia stated that it was incumbent on judges - before processing an Article 125 complaint - to establish whether the preliminary investigation had been completed in the main case. If the main case has already been sent for trial or the investigation completed, the complaint should not be examined unless it has been brought either by a person who is not a party to the main case or if such a complaint is not amenable to judicial review under Article 125 at the pre-trial stage of the proceedings. In all other situations the complaint under Article 125 should be left unexamined and the complainant should be informed that he or she can raise the matter before the trial or appeal courts in the main case.

43. In the same vein, according to the interpretation given by the Constitutional Court, a complaint under Article 125 cannot be brought or pursued after the criminal case to which the complaint is connected has been submitted for trial. However, when it is established that a party to the proceedings (including a judge or a witness) has committed a criminal offence, thus seriously affecting the fairness of the proceedings, the Code exceptionally allows for a separate investigation of the relevant circumstances leading to a reopening of the case (see Decision no. 1412-O-O of 17 November 2009; see also Ruling no. 20-П of 2 July 1998 and Ruling no. 5-П of 23 March 1999).

THE LAW

I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION

44. The first applicant complained of ill-treatment by the police on 14 October, 15 October and 16 October 2003, by his cellmates for several days starting from 17 October 2003 and of ill-treatment by the police again on 4 November 2003. The second applicant complained of ill-treatment by the police on 7 September 2003. The third applicant complained of ill-treatment by the police on 14 October and 11 November 2003. The fourth applicant complained of her partner’s ill-treatment by the police on 14 October 2003 and for several days starting from 24 October 2003.

The applicants further complained of the failure of the domestic authorities to conduct an effective investigation into their allegations. They relied on Articles 3 and 13 of the Convention, which 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. Submissions by the parties

45. The Government argued that effective domestic remedies had been available to the applicants in respect of their complaints of ill-treatment under Article 3 of the Convention, as required by its Article 13, but that they had not availed themselves of those remedies. In particular, the first, third and fourth applicants had not challenged before the court the lawfulness of the decision of 8 August 2006 to dispense with criminal proceedings into their allegations. The second applicant, in his turn, had failed to appeal against the judgment of 22 December 2003 by which the Kirovskiy District Court had found lawful and justified the prosecutor’s refusal of 2 October 2003 to open criminal proceedings. The Government argued, therefore, that the applicants had failed to exhaust domestic remedies in respect of their complaints under Article 3 of the Convention.

46. As to the merits of the applicants’ complaints, the Government submitted that the allegations of ill-treatment in respect of the first and third applicants and the fourth applicant’s partner had been duly investigated by the prosecutor’s office and had proved unsubstantiated. It had been established, in particular, that during their arrest on 14 October 2003 physical force and handcuffs had been applied to the first and third applicants and the fourth applicant’s partner as they had defied the lawful orders of the police to remain on the spot and had tried to escape. The physical force applied by the police had been proportionate to the resistance shown. The first applicant’s allegations regarding the intimidation which had resulted in his cutting his left forearm on 21 October 2003 and his neck on 4 November 2003 had been checked and had also proved unsubstantiated. As regards the second applicant’s allegations, the Government submitted that a pre-investigation inquiry had established that while being questioned as a witness at the police station, the latter had tried to escape by suddenly jumping out of the window, and that the police officers had acted within the law in force. The Government concluded that the applicants’ complaints were therefore manifestly ill-founded.

47. The applicants maintained their complaints. They submitted that they had applied to various domestic authorities, including the courts, requesting them to investigate the circumstances of their ill-treatment. However, an independent and thorough investigation had never been conducted, despite the obvious evidence of ill-treatment.

B. The Court’s assessment

1. Admissibility

48. The Government argued that the applicants had not challenged before the courts the investigating authorities’ decisions concerning their complaints of ill-treatment, and had therefore failed to exhaust domestic remedies.

49. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. Article 35 § 1 also requires that complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance, and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see Aksoy v. Turkey, 18 December 1996, §§ 51-52, Reports of Judgments and Decisions 1996-VI, and Akdivar and Others v. Turkey, 16 September 1996, §§ 65-67, Reports 1996-IV).

50. The Court has found that in the Russian legal system a judicial appeal against a decision not to institute criminal proceedings or against a decision to discontinue criminal proceedings may offer a substantial safeguard against the arbitrary exercise of power by the investigating authority, given a court’s power to annul such decisions and indicate the defects to be addressed (see Belevitskiy v. Russia, no. 72967/01, § 61, 1 March 2007, and Chumakov v. Russia, no. 41794/04, § 91, 24 April 2012). Therefore, in the ordinary course of events such an appeal might be regarded as a possible remedy where the prosecution has decided not to investigate the claims.

51. The Court observes that in the present case the first and third applicants did not make use of the judicial appeal, in the formal sense, as laid down by Article 125 of the Russian Code of Criminal Procedure, by challenging the decision of 8 August 2006 to discontinue the criminal proceedings against the alleged perpetrators. Instead, they raised the ill-treatment issue before the Regional Court, the trial court which had determined the criminal charge against them, and then on appeal before the Supreme Court.

52. The Court has previously held that, as a general rule, the fact that an ill-treatment issue has been raised before the trial court determining the criminal charge against the applicant could not be regarded as part of the normal process of exhaustion of domestic remedies in respect of Article 3 complaints before the Court (see Belevitskiy, cited above, §§ 63-64).

53. The Court reiterates, however, that the application of the rule of exhaustion of domestic remedies must make due allowance for the fact that it is being applied in the context of the machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, that rule must be applied with some degree of flexibility and without excessive formalism. This means, amongst other things, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate, as well as the personal circumstances of the applicant (see Belevitskiy, cited above, § 65, with further references).

54. Guided by the above principles, the Court has previously accepted that in certain circumstances, raising the issue of ill-treatment before the trial court that is examining the charges against the applicant, provided that the courts examine the substance of the relevant allegations, could be regarded as an appropriate exhaustion of domestic remedies (see Akulinin and Babich v. Russia, no. 5742/02, §§ 25-34, 2 October 2008).

55. Turning to the circumstances of the present case, the Court observes that when the decision of 8 August 2006 to discontinue the criminal proceedings into the allegations of ill-treatment was taken, the criminal case against the first and third applicants had already been submitted for trial. In such circumstances, regard being had to the relevant provisions of domestic law and practice (see paragraphs 41-43 above), the first and third applicants no longer had a practical opportunity to pursue a complaint under Article 125 against the decision of 8 August 2006. The only option left for them to challenge the decision in question was within the framework of the criminal proceedings against them.

56. In view of the above, and the fact that the trial court and the court of appeal examined the substance of the first and third applicants’ allegations of ill-treatment (see paragraph 32-33 above), the Court considers that the first and third applicants cannot be said to have failed to exhaust domestic remedies.

57. The Court further notes that the first and third applicants’ complaints as set out in paragraph 44 above are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that they are not inadmissible on any other grounds. They must therefore be declared admissible.

58. As to the fourth applicant, and leaving aside the issue under Article 2 of the Convention which will be examined below, the Court observes that there is nothing in the case file to suggest that she challenged before the courts the decision of 8 August 2006 to discontinue the criminal proceedings into her late partner’s allegations of ill-treatment or that there were any obstacles to her doing so.

59. As regards the second applicant, the Court observes that he lodged a judicial appeal against the decision of 2 October 2003 refusing the institution of criminal proceedings against the police officers. However, he failed to challenge before the Regional Court the judgment of the Kirovskiy District Court of 22 December 2003 in which the decision in question was found lawful and justified. No reasons for such a failure were advanced.

60. The second and fourth applicants’ complaints of ill-treatment should therefore be declared inadmissible on account of the applicants’ failure to exhaust the available domestic remedies and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

2. Merits

(a) Effectiveness of the investigation into the first and third applicants’ allegations of ill-treatment

61. The Court reiterates that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. That investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice, and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV).

62. The investigation into serious allegations of ill-treatment must be both prompt and thorough. The authorities must always 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 of their decisions. They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard (see Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, § 322, ECHR 2014 (extracts), and Kopylov v. Russia, no. 3933/04, § 133, 29 July 2010). Furthermore, the investigation must be independent, impartial and subject to public scrutiny (see Mesut Deniz v. Turkey, no. 36716/07, § 52, 5 November 2013). It should result in a reasoned decision to reassure a concerned public that the rule of law has been respected (see, mutatis mutandis, Kelly and Others v. the United Kingdom, no. 30054/96, § 118, 4 May 2001).

63. Turning to the present case, the Court notes that despite its request for complete copies of the investigation files into the alleged police brutality, the Government have produced only a part of the documents from the files, without providing any explanation. In such circumstances the Court considers that it can draw inferences from the Government’s conduct and examine the merits of the case on the basis of the applicants’ arguments and existing elements in the file, even though the materials and information submitted by the applicants leave certain facts unclear (see Mikheyev v. Russia, no. 77617/01, §§ 102-05, 26 January 2006, with further reference).

64. The Court observes that the first and third applicants made credible assertions that they had suffered treatment proscribed under Article 3 at the hands of the police. Their assertions were supported by relevant medical evidence (see paragraphs 7, 14, 16 and 18 above). The State therefore had an obligation to carry out an effective official investigation into the circumstances in which the first and third applicants sustained their injuries.

65. The Court notes that in response to the applicants’ complaints of police brutality, criminal proceedings were instituted by the domestic authorities. However, they were discontinued later having failed to discover constituent elements of a crime in the actions of the police officers. It remains therefore to be seen whether the investigation which was conducted into the first and third applicants’ allegation was such as to meet the requirements of Article 3 of the Convention.

66. The Court observes that the investigating authority did not open a criminal case until 4 March 2004, that is, more than four months after the applicants’ alleged ill-treatment had first been brought to its attention (see paragraph 25 above). No explanation has been given to the Court for that delay.

67. The Court found in Lyapin v. Russia that in cases of credible allegations of treatment proscribed under Article 3 of the Convention, it was incumbent on the authorities to open a criminal case and conduct an investigation, a “pre-investigation inquiry” alone not being capable of meeting the requirements of effective investigation under Article 3. It held that the mere fact of the investigating authority’s refusal to open a criminal investigation into credible allegations of serious ill-treatment in police custody was 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, §§ 128-40, 24 July 2014).

68. The above findings are fully applicable to the present case. The Court considers that the delay in opening criminal proceedings into the applicants’ credible assertions could not but have had a significant adverse impact on the investigation, considerably undermining the investigating authority’s ability to secure the evidence concerning the alleged ill-treatment (see Razzakov v. Russia, no. 57519/09, § 61, 5 February 2015, with further references).

69. The Court further observes that in the absence of the necessary elements in the case file (see paragraph 63 above), the Government have not made it possible for the Court to assess whether the investigative measures carried out after the institution of the criminal proceedings into the circumstances of the first and third applicants’ alleged ill-treatment were thorough.

70. In the light of the foregoing, the Court finds that the significant delay in opening the criminal case and commencing a full criminal investigation into the first and third applicants’ credible assertions of serious ill-treatment at the hands of the police, disclosing elements of a criminal offence, shows that the authorities did not take all reasonable steps available to them to secure the evidence and did not make a serious attempt to find out what had happened. They thus failed in their obligation to conduct an effective investigation into the first and third applicants’ ill-treatment in police custody.

71. Accordingly, there has been a violation of Article 3 of the Convention under its procedural head. Since the first and third applicants’ complaint under Article 13 concerns the same issues as those examined in paragraphs 61-70 above under the procedural aspect of Article 3 of the Convention, having regard to its conclusion above under Article 3, the Court considers it unnecessary to examine those issues separately under Article 13 of the Convention.

(b) The first and third applicants’ alleged ill-treatment

72. The Court reiterates that Article 3 enshrines one of the most fundamental values of democratic societies. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see Kudła v. Poland [GC], no. 30210/96, § 90, ECHR 2000-XI).

73. In order for ill-treatment to fall within the scope of Article 3 it must attain a minimum level of severity. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25).

74. Where allegations are made under Article 3 of the Convention the Court must apply a particularly thorough scrutiny. Where domestic proceedings have taken place, however, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them. Although the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (see Gäfgen v. Germany [GC], no. 22978/05, § 93, ECHR 2010).

75. In assessing evidence in a claim of a violation of Article 3 of the Convention, the Court adopts the standard of proof “beyond reasonable doubt”. Such proof may, however, follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006-IX).

76. Where a person is injured while in detention or otherwise under the control of the police, any such injury will give rise to a strong presumption that the person was subjected to ill-treatment (see, among many other authorities, Mrozowski v. Poland, no. 9258/04, § 26, 12 May 2009). The use of force during arrest, even if it resulted in injury, may fall outside the scope of Article 3 if it was indispensable and resulted from the conduct of the applicant (see Klaas v. Germany, 22 September 1993, § 30, Series A no. 269). On the other hand, where an individual was in good health when taken into police custody but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which an issue will arise under Article 3 of the Convention (see Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V).

77. Turning to the circumstances of the instant case, the Court notes that following their arrest on 14 October 2003 the first and third applicants were detained at the police station and subsequently at the remand prison. On 15 October 2003 a forensic medical examination revealed that the first applicant had abrasions on his left shoulder, and bruises on both ears and on the back of his thorax, and the third applicant had bruises on his left hip and under his jaw. The expert concluded that those injuries had been sustained the day prior to the examination (see paragraph 7 above). The first applicant was subsequently discovered to have superficial cuts on his left forearm on 21 October 2003 and a cut on his neck on 4 November 2003; and the third applicant was taken to hospital on 12 November 2003 and diagnosed with a fracture of the right upper arm, and thorax and spinal cord contusions (see paragraphs 14, 16 and 18 above).

78. The Court considers that the above-mentioned medical evidence, along with the fact that the alleged ill-treatment took place while the applicants were in police custody, as well as the Court’s finding as regards the ineffectiveness of the investigation carried out by the domestic authorities in the present case, create a presumption of fact that the applicants were subjected to ill-treatment at the hands of State agents. This required the Government to provide a satisfactory and convincing explanation as to how those injuries could have been caused.

79. In this connection the Court notes that according to the Government, the injuries recorded by the forensic medical expert on 15 October 2003 had been inflicted on the first and third applicants by the police during their arrest, as they had shown resistance and tried to escape. They further submitted that the first applicant’s alleged intimidation, which resulted in his cutting his forearm and neck, had been checked and proved unsubstantiated. As regards the injuries which the third applicant sustained on 12 November 2003, the Government stated that they had been caused when he jumped out of a window at the police station during questioning in an attempt to escape (see paragraph 46 above).

80. The Court reiterates that the Government have produced only a part of the documents from the investigation files into the alleged police brutality, without providing any explanation (see paragraph 63 above). It notes in this connection that when the respondent Government have exclusive access to information capable of corroborating or refuting an applicant’s allegations, any lack of cooperation by the Government without a satisfactory explanation may give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations (see Makhashevy v. Russia, no. 20546/07, § 149, 31 July 2012, with further references).

81. On the basis of all the material placed before it and taking into account the Government’s failure to provide copies of the entire investigation files into the applicants’ allegations of ill-treatment while in State custody, the Court finds that neither the authorities at the domestic level nor the Government in the proceedings before the Strasbourg Court have advanced any convincing explanation as to the origin of the first and third applicants’ injuries. The Court concludes therefore that the Government have not satisfactorily established that the first and third applicants’ injuries were caused otherwise than - entirely, mainly, or partly - by the treatment they underwent while in police custody.

82. Accordingly, having regard to the nature and the extent of the first and third applicants’ injuries, the Court concludes that the State is responsible under the substantive aspect of Article 3 for the torture to which the first and third applicants were subjected while in State custody.

II. ALLEGED VIOLATION OF ARTICLES 2 AND 13 OF THE CONVENTION

83. The fourth applicant complained under Articles 2 and 13 of the Convention that her partner had died while in custody and that there had been no effective and prompt investigation into his death. Article 13 was cited above. Article 2 of the Convention reads, in so far as relevant, as follows:

Article 2

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. ...”

A. Submissions by the parties

84. The Government submitted that on 26 June 2006 the criminal case instituted in connection with the death of Mr Pavel Aleksandrovich Bazhenov had been terminated owing to the absence of any evidence of a crime. An appeal against the decision of 26 June 2006 was lodged by the father of the deceased, Mr A. Bazhenov. On 16 July 2007 the Kyubyshevsky District Court of Irkutsk found the decision of 26 June 2006 lawful. No appeal was brought against the judgment of 16 July 2007 before the Regional Court. The Government stressed that the fourth applicant had not lodged any complaints with the national courts in connection with the investigation into the death of her partner. It therefore considered that the Court should dismiss her complaints as inadmissible and that it was not necessary to examine them on the merits.

85. The applicants’ representative submitted that the fourth applicant had been indicated as the applicant in relation to the above complaints under Articles 2 and 13 of the Convention by mistake. The correct applicant was the father of the deceased, Mr A. Bazhenov, who had complied with the requirements of admissibility set out in Article 35 §§ 1 and 3 of the Convention.

B. The Court’s assessment

Admissibility

86. The Court notes that in his observations in reply to those of the Government, the applicants’ representative referred to Mr A. Bazhenov, Mr Pavel Aleksandrovich Bazhenov’s father, as the correct applicant in relation to the above complaints under Articles 2 and 13 of the Convention. However, that name did not feature in the original application forms or in any earlier correspondence from the applicants’ representative. Moreover, the case file does not contain a power of attorney for the applicants’ representative to act on his behalf. In such circumstances, and noting that it is essential for representatives to demonstrate that they have received specific and explicit instructions from the alleged victim(s) within the meaning of Article 34 of the Convention on whose behalf they purport to act, the Court does not find that Mr A. Bazhenov can be regarded as an applicant in the present proceedings (see Morén and Others v. Sweden (dec.), no. 13224/06, § 45, 11 February 2014, and Dimitrovi v. Bulgaria (dec.), no. 25776/05, § 47, 17 December 2013).

87. The Court further observes that the fourth applicant did not pursue a judicial appeal against the decision of 26 June 2006 to discontinue the criminal proceedings into the death of her partner (see paragraphs 49-50 above). It follows that her complaint under Article 2 of the Convention must be rejected for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.

88. In so far as the fourth applicant referred to Article 13 of the Convention, the Court, having regard to its conclusion concerning Article 2, finds that no separate issue arises under this provision and that this complaint should be dismissed as being manifestly ill-founded within the meaning of Article 35 §§ 3 (a) and 4 of the Convention .

III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

89. Lastly, the first three applicants complained of the unlawfulness of their detention, and the fourth applicant of the unlawfulness of her late partner’s detention. They relied on Article 5 § 1 (c), which reads as follows:

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

(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 ...”

90. In so far as the first, third and fourth applicants are concerned, in the light of all the material in its possession, the Court does not find any indication that the first and third applicants’ detention and the detention of the fourth applicant’s partner was unlawful or ordered otherwise than “in accordance with a procedure prescribed by law”, within the meaning of Article 5 § 1 of the Convention. The Court considers that the detention was ordered in accordance with domestic law and fell within the ambit of Article 5 § 1 (c) of the Convention, having been effected for the purpose of bringing the persons concerned before the competent legal authority on suspicion of having committed an offence. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

91. In so far as the second applicant is concerned, the Court observes that he did not challenge the lawfulness of his detention between 5 September and 7 September 2003 before the courts. It follows that this part of the application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

92. 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

93. The first and third applicants claimed 30,000 euros (EUR) each in respect of non-pecuniary damage.

94. The Government noted that no claims of pecuniary damage were made by the applicants.

95. The Court observes that it has found a violation under both the substantive and the procedural aspects of Article 3 of the Convention on account of the first and third applicants’ ill-treatment whilst in State custody and the failure of the domestic authorities to carry out an effective investigation into the matter. In these circumstances, the Court considers that the suffering and frustration caused to the first and third applicants cannot be compensated for by a mere finding of a violation. Making its assessment on an equitable basis, the Court awards the first and third applicants EUR 30,000 each in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

B. Costs and expenses

96. As the applicants did not claim costs and expenses, the Court makes no award under this head.

C. Default interest

97. 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. Declares the complaints under Articles 3 and 13 of the Convention brought on behalf of the first and third applicants admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 3 of the Convention under its procedural aspect on account of the first and the third applicants’ ill-treatment;

3. Holds that there has been a violation of Article 3 of the Convention under its substantive aspect on account of the first and the third applicants’ ill-treatment;

4. Holds that no separate issue arises under Article 13 of the Convention in conjunction with Article 3 of the Convention;

5. Holds

(a) that the respondent State is to pay Mr Mikhail Sergeyevich Zakharin and Mr Oleg Vladislavovich Zyryanov, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 30,000 (thirty thousand euros) each, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(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 12 November 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen András Sajó
Registrar President

[1] On 23 August 2004 criminal proceedings against the third applicant for attempted escape were discontinued.

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You are here: BAILII >> Databases >> European Court of Human Rights >> ZAKHARIN AND OTHERS v. RUSSIA - 22458/04 (Judgment (Merits and Just Satisfaction) : Court (First Section)) [2015] ECHR 996 (12 November 2015) URL: http://www.bailii.org/eu/cases/ECHR/2015/996.html Cite as: [2015] ECHR 996