OVAKIMYAN v. RUSSIA - 52796/08 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2017] ECHR 198 (21 February 2017)

In the case of Ovakimyan v. Russia,

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

          Luis López Guerra, President,
          Helena Jäderblom,
          Helen Keller,
          Dmitry Dedov,
          Pere Pastor Vilanova,
          Alena Poláčková,
          Georgios A. Serghides, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 31 January 2017,

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

PROCEDURE

1. The case originated in an application (no. 52796/08) 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 Suren Avetikovich Ovakimyan (“the applicant”), on 22 October 2008.

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

3. The applicant alleged, in particular, that he had been unlawfully deprived of his liberty, that the police had subjected him to ill-treatment in order to obtain a confession and that no effective investigation into that ill-treatment had been carried out.

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

THE FACTS

THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1981 and lived in Yoshkar-Ola before his conviction.

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

6. On 29 August 2007 A.K., who had left home the previous day intending to sell his car, was reported missing. On the same day his car was found on the outskirts of Yoshkar-Ola. The investigative committee at the Yoshkar-Ola town prosecutor’s office opened criminal proceedings in respect of A.K.’s alleged murder. The criminal investigation department of the Ministry of Interior of the Republic of Mariy El carried out operational and search activities aimed at establishing A.K.’s whereabouts and the circumstances of his disappearance.

1. Events of 7 September 2007

(a) Records of investigative actions

7. According to a record drawn up by investigator A., on 7 September 2007 A.K.’s body was found and the place of its location examined.

8. At 8.55 p.m. investigator G. drew up a record of the applicant’s arrest as a suspect in the murder case, indicating that the applicant had been arrested at 8.55 p.m. that day.

9. From 9.15 p.m. to 9.35 p.m. investigator A. examined the applicant as a suspect in the presence of V.K., a lawyer provided by the State at the applicant’s request. The applicant refused to give statements, relying on Article 51 of the Constitution (privilege against self-incrimination).

(b) Police officers’ version

10. According to operative police officers (оперуполномоченные), D.K., O. and S., they received information concerning the applicant’s involvement in A.K.’s murder. At about 5 or 6 p.m. on 7 September 2007 they came to the applicant’s home and invited him to answer some questions; they took him with his consent to their office at the Yoshkar-Ola Central police station; during his interview the applicant told them that he had murdered A.K. by strangling him in order to steal A.K.’s car and that he could show them where A.K.’s body had been hidden.

11. At about 6 p.m. or 7 p.m. D.K., O. and S. took the applicant to a place on the outskirts of Yoshkar-Ola where he pointed out the location of A.K.’s body. They called investigator A., who arrived with other members of the investigative team, carried out an examination of the place and seized the body.

12. The applicant provided a different version of his arrest and the events which followed. According to him, at 3 p.m., when he and his girlfriend were buying something at a kiosk in the street, three men in plain clothes approached him, pushed him to the tarmac, handcuffed him and put him in an unmarked car without any explanation. A plastic bag was put over his head, making it difficult for him to breathe, and he was taken to a forest, where the three men subjected him to ill-treatment, demanding that he accept their conditions and do as he was told. He was punched (in particular on the forehead), kicked (after he had fallen to the ground), and administered electric shocks through wires attached to the thumbs. He agreed to cooperate and was taken to investigator G at the Yoshkar-Ola Central police station.

13. During the criminal proceedings against him the applicant asserted that he had never shown the whereabouts of A.K.’s body to the investigating authorities; rather, it was his co-accused R.K. who had shown them the body (see paragraph 37 below).

(d) Injuries recorded at the temporary detention facility

14. At 10.45 p.m. the applicant was placed in a temporary detention facility (“the IVS”) at the Ministry of Interior of Mariy El. An officer on duty recorded the following injuries on him: a swelling and a haematoma on the left side of the forehead; haematomas on the right side of the chest, on the right shoulder and right shoulder blade; and abrasions on the back in the region of the waist.

2. Events of 8 September 2007

(a) Records of investigative actions

15. At 2.35 p.m. on 8 September 2007 the applicant was taken from the IVS to investigator G. to take part in two confrontations, which were carried out between 3.30 p.m. and 5.25 p.m. The applicant, who was represented by lawyer V.K., again refused to give statements.

16. According to the IVS’s records, the applicant was brought back to the IVS at 3.20 a.m.

(b) Investigator’s version

17. In a “statement of surrender and confession” (явка с повинной) drawn up by investigator G. at 7 p.m. in the absence of a lawyer, the applicant confessed to participating in a conspiracy to murder A.K. and to stealing A.K.’s car. The applicant stated that A.K. had been strangled by his partners in crime, R.K. and M.Ts.

18. According to investigator G., that day the applicant remained in his office until he was taken back to the IVS.

19. According to the applicant, investigator G. demanded that he confess to the crimes. The applicant refused, and after 9 p.m., G. telephoned someone and three men took the applicant out of the town by car. They beat him up, strangled him, threatened him with a revolver, tied him up with a car tow rope, threw him into a pit dug by one of them and threatened to bury him alive, demanding that he confess to the murder. After being taken back to the IVS, the applicant signed a statement of surrender and confession, as requested by the investigator.

20. During the criminal proceedings against him the applicant stated that he had never signed the statement of surrender and confession, and that his signature on the record had been forged by the investigator. On 16 July 2008 a criminal complaint lodged by the applicant on 1 February 2008 against the investigator was dismissed after a handwriting expert was unable to determine whether his signature had been forged.

3. Events of 9 September 2007

(a) Records of investigative actions

21. At 8.20 a.m. on 9 September 2007 the applicant was taken to investigator G., charged with murder and robbery, and questioned as an accused in the presence of lawyer V.K. According to the record of his questioning, he stated that he had given the statement of surrender and confession the previous day voluntarily, without any pressure from police officers. He reiterated his self-incriminating statements.

22. During the criminal proceedings against him the applicant claimed that he had never signed the record of his questioning as an accused, and that his signature on the record had been forged by an investigator. A handwriting expert, whose opinion was sought by an investigator, concluded that a handwritten note in which the applicant fully acknowledged his guilt of A.K.’s murder had been written by the applicant, but that it was impossible to determine whether he had also signed that record. On 16 July 2008 the applicant’s criminal complaint against the investigator (see paragraph 20 above) was dismissed.

(b) Detention on remand

23. On the same day the Yoshkar-Ola Town Court, at a hearing held in the presence of the applicant and his lawyer, V.K., investigator G. and a prosecutor, ordered that the applicant be detained on remand.

24. At 5.30 p.m. he was placed in pre-trial detention facility IZ-12/1. Upon his admission he was examined by a medical assistant, who recorded the following injuries on him: an 8-cm-long bruise on the front side of the neck, a bruise 2 cm in diameter on the right side of the chest, and a 3-cm-long abrasion at the level of the first lumbar vertebra.

B. The investigative committee’s refusals to open criminal proceedings into the allegations of ill-treatment and their review by domestic courts under Article 125 of the Code of Criminal Procedure

25. On 17 October 2007 the applicant lodged a complaint with the Prosecutor’s Office of the Republic of Mariy El, requesting that investigator G. and the police officers responsible for his ill-treatment (see paragraphs 12 and 19 above) be prosecuted. An inquiry into his allegations was carried out under Article 144 of the Code of Criminal Procedure (“CCrP”) by the investigative committee of the Mariy El prosecutor’s office.

26. The pit into which the applicant had allegedly been thrown on 8 September 2007 with the threat that he would be buried alive was located in a forest at a place pointed out by the applicant. Statements were taken from investigators and police officers. Investigator G. and operative police officers D.K., O. and S. denied having ill-treated the applicant.

27. On 18 December 2007 an investigator ordered a forensic expert medical report concerning the applicant’s injuries, as recorded in pre-trial detention facility IZ-12/1 (see paragraph 24 above). In a report dated 19 December 2007 the forensic medical expert concluded that the injuries could have been caused by hard blunt objects. They had not resulted in a health disorder of sufficiently long a duration for it to be categorised as health damage. The information contained in the medical records made available to the expert did not make it possible to establish the time at which the injuries had been inflicted.

28. Investigators refused five times (on 2 and 19 November and 13 December 2007, and 7 April and 29 June 2008) to open criminal proceedings in respect of the applicant’s allegations for lack of the event of a crime (отсутствие события преступления). Each time their decision was annulled as unlawful and unfounded by their superior at the Mariy El prosecutor’s office and an additional inquiry ordered. The annulment of the investigators’ refusals of 13 December 2007, 7 April 2008 and 29 June 2008 followed the Yoshkar-Ola Town Court’s findings of 3 March, 29 May and 31 July 2008 respectively that those refusals had been unlawful and lacking reasoning.

29. The Town Court’s decision of 31 July 2008 was initially set aside after an appeal by the prosecutor before the Mariy El Supreme Court on 22 September 2008 for the reasons that on 15 August 2008 the criminal case against the applicant had been transferred for trial to the Mariy El Supreme Court, that those proceedings were pending, and that it was open for the applicant to raise in the course of his trial complaints concerning his ill-treatment. In supervisory review proceedings on 22 October 2010 the Presidium of the Mariy El Supreme Court quashed the decision of 22 September 2008. It found that the decision had been based on an erroneous interpretation of criminal procedural law and had failed to take into account Article 46 of the Russian Constitution, which guaranteed access to court in respect of complaints against decisions of State authorities. It noted that the Constitutional Court had explained that it was possible under Article 125 of the CCrP to appeal against decisions made by (as well as actions undertaken by or inaction on the part of) investigating authorities at the pre-trial stage of proceedings, regardless of whether issues addressed in those decisions were connected to circumstances concerning other pending or completed criminal proceedings. The Presidium referred to the Constitutional Court’s decisions no. 369-O of 18 November 2004, 156-O of 25 March 2004, 500-O of 20 December 2005, 576-O-P of 19 May 2009, 1107-O-O of 13 October 2009 and 79-O of 16 March 2006. The Mariy El Supreme Court stressed that in the course of a trial the task of a court was to examine the admissibility of evidence and other questions relevant to the merits of the case; such questions were factually and legally different from those examined in a review under Article 125 of the CCrP. On 22 November 2010, following supervisory review and appeal proceedings, the Town Court’s decision of 31 July 2008 entered into force.

30. The most recent decision of the investigative committee of the Mariy El prosecutor’s office was taken on 9 March 2011. An investigator again refused to institute criminal proceedings against investigator G. and police officers D.K., O., S. and Z. for lack of the event of a crime under Article 24 § 1 (1) of the CCrP. Relying on the statements of the applicant’s co-accused, R.K., the investigator concluded that the injuries found on the applicant upon his admission to the IVS could have been inflicted by A.K. on 28 August 2007. R.K. stated that shortly before A.K.’s murder the applicant and A.K. had had a fight in a car and that he had seen them delivering several blows to each other. R.K. was unable to say where A.K. had hit the applicant. As regards the bruise on the applicant’s neck recorded upon his admission to the SIZO on 9 September 2007, the investigator noted that its cause had not been established and concluded that it could have been self-inflicted.

31. On 7 October 2011 the Yoshkar-Ola Town Court dismissed an appeal by the applicant against the investigator’s decision of 9 March 2011. It found that the investigator had carried out a comprehensive inquiry, having exhausted all possibilities for collecting evidence, and that his decision had been lawful and well-reasoned.

32. On 5 December 2011 the Mariy El Supreme Court dismissed an appeal by the applicant against the Town Court’s decision. It stated that in a review of an investigator’s decision not to initiate criminal proceedings under Article 125 of the CCrP a court’s task was to check whether the procedure for the examination of a complaint regarding the commission of a crime had been observed. The Mariy El Supreme Court noted that the Town Court had examined the material gathered during the course of the inquiry and established that the applicant’s arguments had been examined by the investigator. It fully endorsed the Town Court’s findings that the inquiry had been thorough and the investigator’s decision of 9 March 2011 lawful and reasoned.

33. On 12 December 2011 first deputy prosecutor of the Republic of Mariy El annulled the investigator’s decision of 9 March 2011 as unlawful, lacking reasoning and proper assessment of evidence, and based on an inquiry which had not been thorough and had not exhausted all possibilities for collecting evidence. In particular, the applicant’s allegations of ill-treatment had not been refuted; the circumstances in which he had received the injuries had not been established; the existence of the pit at the place of the applicant’s alleged ill-treatment had not been assessed; the allegations of electric shocks had not been verified; and the forensic medical expert had not been given all the necessary information (including the applicant’s version of the cause of the injuries). Consequently, the forensic expert (see paragraph 27 above) had not made a full assessment, in particular of the injuries recorded upon the applicant’s admission to the IVS. The prosecutor further noted that (i) the IVS records, which recorded at what times in the period from 7 until 9 September 2007 the applicant had been taken from the detention facility for the purpose of carrying out investigative actions and when he had been brought back, had not been assessed, and (ii) the documents indicating the grounds for the applicant’s absence from the detention facility were missing. It was necessary, inter alia, to establish the applicant’s location and a detailed chronology of the events in which had had participated in the period from 7 until 9 September 2007, taking into account the fact that he had actually been arrested at 3 p.m. on 7 September 2007, as established at the applicant’s trial. The prosecutor ordered that the investigative committee of the Mariy El prosecutor’s office carry out an additional inquiry.

C. The applicant’s trial

34. The applicant’s case was heard by the Mariy El Supreme Court. On 20 August 2008 it ordered that a preliminary hearing be held in order to examine the applicant’s request for the exclusion of some evidence as inadmissible. On 28 August 2008 the applicant withdrew his request. On 1 September 2008 the Mariy El Supreme Court - after hearing the applicant and his legal counsel, who confirmed the withdrawal of the request - ruled that the request should not therefore be examined. According to the trial records of 23 October 2008, in the course of the trial the applicant lodged a new request for the exclusion of some evidence as inadmissible, which he again withdrew.

35. As regards the applicant’s allegations of ill-treatment, the first-instance court (“the trial court”) examined witnesses and other evidence collected in the course of the inquiry carried out by the investigative committee of the Mariy El prosecutor’s office. In particular, it heard investigators A. and G. and police officers O. and S., who denied having ill-treated the applicant. A., O. and S. stated that the applicant had pointed out the location of A.K.’s body. The trial court found it impossible to establish the circumstances in which the applicant had received the injuries. It noted that it could examine allegations of unlawful investigative methods as long as the admissibility of evidence was at issue, and that this was not the case because no evidence whose admissibility would have been prejudiced by the discovery of the applicant’s injuries had been examined by it. It stressed that the circumstances in which the applicant’s injuries had been inflicted could be established by the relevant law enforcement authorities by means of an inquiry.

36. In respect of an attack on A.K. in his car shortly before his murder, R.K. stated that he had seen the applicant punching A.K. to the head and body and A.K. trying to defend himself. In respect of the same episode another of the applicant’s co-accused, M.Ts., who had also been in the car, stated that he had seen the applicant beating A.K. and A.K. covering himself from the blows.

37. The applicant pleaded not guilty. When asked whether he had been taken to the place where A.K.’s body had been found, he answered that he had been taken by car to an unknown place, where he had seen R.K. talking to police officers. R.K. had been covered in mud. The applicant had been told by a driver that R.K. had dug out A.K.’s body with his bare hands. The applicant further stated that he had not written the statement of surrender and confession.

38. In its judgment of 5 November 2008 the Mariy El Supreme Court established that the applicant had murdered A.K. by strangling and had stolen his car. It found the applicant guilty of murder and robbery and sentenced him to sixteen years’ imprisonment. The finding of the applicant’s guilt was based, inter alia, on statements made by R.K. and M.Ts. (his accomplices in the robbery and eyewitnesses to the murder). In deciding on the punishment for the robbery the Mariy El Supreme Court held that the applicant had played an active role in solving the crime by pointing out the location of A.K.’s body, and that this constituted a mitigating circumstance. The applicant’s co-accused, R.K. and Ts., were convicted of aggravated robbery and sentenced to three and a half and three years’ imprisonment respectively; in M.Ts.’s case the sentence was suspended.

39. The applicant lodged an appeal with the Russian Supreme Court against the judgment, complaining, inter alia, that the Mariy El Supreme Court should not have examined as evidence the witness statements made by A., O. and S. He further complained that his sentence in respect of the murder had been unfair because, in contrast with the decision on the punishment for the robbery, his disclosure of the whereabouts of A.K.’s body had not been taken into account as a mitigating circumstance.

40. On 5 February 2009 the Russian Supreme Court dismissed the applicant’s appeal and upheld the judgment of the Mariy El Supreme Court. It stated that in view of the disputed origin of the applicant’s injuries the trial court had rightly not used evidence adduced at the time of the applicant’s alleged ill-treatment. It agreed with the applicant that the record of his arrest had been drawn up more than three hours after his actual arrest at 3 p.m. on 7 September 2007, in breach of Article 92 § 1 of the Code of Criminal Procedure. It further noted that the trial court had rectified that violation by including the time spent by the applicant in pre-trial detention in the sentence to be served.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

41. The applicant complained that he had been subjected to torture in police custody and that no effective investigation had been carried out into his allegations. 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.”

42. The Government acknowledged a violation of Article 3.

A. Admissibility

43. 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

44. The Court reiterates that where an individual displayed traces of blows after having been under the control of the police and complained that those traces were the result of ill-treatment, there was a - rebuttable - presumption that this was indeed the case (see Bouyid v. Belgium [GC], no. 23380/09, § 91, ECHR 2015).

45. After the time spent in police custody the applicant was found to be injured (see paragraphs 14 and 24 above). He complained that the injuries had been the result of ill-treatment by police officers (see paragraphs 12, 19 and 25 above).

46. In view of the Government’s acknowledgment of a violation of Article 3, the Court finds that the applicant’s injuries must be considered attributable to a form of ill-treatment for which the State should bear responsibility.

47. It further notes that the Government did not dispute the applicant’s allegations of ill-treatment. It therefore finds them proven. The applicant suffered various acts of violence including being handcuffed, put a plastic bag over the head, taken to a forest, punched and kicked, subjected to electric shocks, strangled, tied up, threatened with a revolver, thrown in a pit and threatened to be buried alive. He endured the police violence between 3 p.m. and 8.55 p.m. on 7 September 2007 and between 9 p.m. and 3.20 a.m. in the night on 8 September 2007. He was intentionally subjected to the treatment described above with the aim of extracting his confession to the crimes which the police officers suspected him to have committed.

48. The Court finds that the treatment to which the applicant was subjected at the hands of the police amounted to torture.

49. The Court further reiterates its finding that carrying out a pre-investigation inquiry under Article 144 of the Code of Criminal Procedure of the Russian Federation is insufficient if the authorities are to comply with the standards established under Article 3 of the Convention for an effective investigation into credible allegations of ill-treatment in police custody. It is incumbent on the authorities to institute criminal proceedings 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 domestic law (see Lyapin v. Russia, no. 46956/09, §§ 129 and 132-36, 24 July 2014; and, more recently, Razzakov v. Russia, no. 57519/09, §§ 57-61, 5 February 2015; Gorshchuk v. Russia, no. 31316/09, §§ 35-38, 6 October 2015; Turbylev v. Russia, no. 4722/09, §§ 67-72, 6 October 2015; and Fartushin v. Russia, no. 38887/09, §§ 44-45, 8 October 2015, in which the Government acknowledged a violation under the procedural aspect of Article 3).

50. In the present case the investigative committee of the Mariy El prosecutor’s office carried out a pre-investigation inquiry and decided that there was nothing to show that a crime had been committed. On that basis it refused to open a criminal investigation. In total, they took six such decisions. The decisions were all set aside as lacking reasoning, unlawful, and based on an inquiry that had not been thorough. However, criminal proceedings have not been instituted and an investigation has not been carried out.

51. In upholding the investigator’s decision of 9 March 2011 not to institute criminal proceedings (see paragraphs 31 and 32 above) the domestic courts in their review under Article 125 of the Code of Criminal Procedure failed to apply the standards for an effective official investigation established in the Convention case-law under Article 3. The Court recalls that it falls first to the national authorities to redress any violation of the Convention.

52. The Court finds that the refusal to institute criminal proceedings in respect of the applicant’s credible allegations of ill-treatment in police custody amounted to a failure to carry out an effective investigation.

53. There has accordingly been a violation of Article 3 of the Convention under its substantive and procedural limbs.

II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

54. The applicant complained that he had actually been arrested at 3 p.m. on 7 September 2007 and not at 8.55 p.m. that day, as had been recorded by the investigator. He relied on Article 5 § 1 of the Convention, which reads as follows:

“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:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation 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;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”

55. The Government acknowledged a violation of Article 5 of the Convention.

A. Admissibility

56. 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

57. In view of the Russian Supreme Court’s (see paragraph 40 above) and the Government’s acknowledgment of the violation alleged by the applicant, the Court finds that between 3 p.m. and 8.55 p.m. on 7 September 2007 the applicant was deprived of his liberty unlawfully.

58. There has therefore been a violation of Article 5 § 1 of the Convention (see Aleksey Borisov v. Russia, no. 12008/06, §§ 85-87, 16 July 2015).

III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

59. Lastly, the applicant complained that he had given a statement of surrender and confession and disclosed the location of A.K.’s body only as a result of ill-treatment by police officers and in the absence of a lawyer, and that this had been used as evidence during the criminal proceedings against him. Such evidence should not have been admissible and the trial court’s reliance on it, regardless of whether it was important or not, had rendered his trial unfair. Article 6 § 1 of the Convention reads in the relevant part as follows:

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

60. The Government noted that the applicant had withdrawn his requests for the exclusion of evidence as inadmissible (see paragraph 34 above). Nevertheless, the trial court had chosen not to examine the statement of surrender and confession and other evidence which according to the applicant could have been obtained as a result of unlawful investigative methods. Consequently, no assessment had been made of that evidence and the judgment had not been based on it. The Government, therefore, considered that the complaint was manifestly ill-founded.

61. The applicant maintained his complaint. Without disputing the facts, as stated by the Government, he noted that it had remained unclear whether his records of surrender and confession and his examinations at the pre-trial proceedings had been forged and why he had written the statement of surrender and confession without the presence of a lawyer and after his refusal to give statements.

62. The Court reiterates that it normally requires that complaints intended to be brought before it should have first been lodged with the appropriate domestic courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see Gäfgen v. Germany [GC], no. 22978/05, § 142, ECHR 2010). This is so because the purpose of Article 35 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court.

63. The Court observes that the applicant has not demonstrated that he raised this complaint at his trial. Instead, it can be seen from the material before the Court that the applicant withdrew his request for the exclusion of evidence as inadmissible and argued that he had never given the statement of surrender and confession, that his signature on that document had been forged, and that he had never disclosed the location of A.K.’s body (see paragraphs 13, 20, 34 and 37 above). It is true that the trial court found, on the basis of other evidence, that the applicant had in fact disclosed the location of A.K.’s body and had taken that fact into account as a mitigating circumstance in determining the punishment for the robbery. However, the applicant complained on appeal that the trial court should also have viewed this circumstance as mitigating when deciding on the punishment for the murder.

64. In these circumstances, the Court considers that the applicant did not exhaust domestic remedies and it is not therefore open for him to raise this complaint before the Court. Accordingly, this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention.

IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

65. The applicant complained, under Article 13 in conjunction with Article 3, that the authorities had failed to carry out an effective investigation into his allegations of ill-treatment by law enforcement officers; this failure had had adverse consequences in that the law enforcement officers had not been tried by a court, which could have found them guilty or acquitted them, and he had not had the possibility to claim compensation. Article 13 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.”

66. The Government agreed that the domestic remedies of which the applicant had availed himself had proved inefficient, in breach of Article 13.

67. The Court notes that this complaint is closely linked to the issue raised under the procedural aspect of Article 3 of the Convention and that it should therefore be declared admissible.

68. Having regard to the finding of a violation of Article 3 under its procedural aspect 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.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

69. 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

70. The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage.

71. The Government contested the claim as excessive.

72. Making its assessment on an equitable basis and having regard to the admissible complaints and the violations found, the Court awards the applicant EUR 24,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

B. Default interest

73. 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 concerning the applicant’s unlawful detention and ill-treatment in police custody admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 3 of the Convention under its substantive limb in that the applicant has been subjected to torture;

3. Holds that there has been a violation of Article 3 of the Convention under its procedural limb on account of the lack of an effective investigation into the applicant’s allegation of torture by the police;

4. Holds that there has been a violation of Article 5 § 1 of the Convention;

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

6. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 24,000 (twenty-four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount 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 21 February 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Luis López Guerra
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> OVAKIMYAN v. RUSSIA - 52796/08 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2017] ECHR 198 (21 February 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/198.html Cite as: CE:ECHR:2017:0221JUD005279608, [2017] ECHR 198, ECLI:CE:ECHR:2017:0221JUD005279608