BARAKHOYEV v. RUSSIA - 8516/08 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2017] ECHR 54 (17 January 2017)

In the case of Barakhoyev 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,
          Branko Lubarda,
          Pere Pastor Vilanova,
          Alena Poláčková, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 22 November and 13 December 2016,

Delivers the following judgment, which was adopted on the last mentioned date:

PROCEDURE

1. The case originated in an application (no. 8516/08) 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 Sultan Abdul-Khalitovich Barakhoyev (“the applicant”), on 25 December 2007.

2. The applicant, who had been granted legal aid, was represented by lawyers of the Memorial Human Rights Centre and European Human Rights Advocacy Centre based in Moscow and London respectively. 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 that he had been unlawfully arrested and subjected to ill-treatment whilst in police custody.

4. On 20 October 2014 the complaints concerning the allegedly unlawful arrest and ill-treatment were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1982 and lives in Kartsa, in the North Ossetia-Alania Republic.

A. The applicant’s arrest and the alleged ill-treatment

1. The applicant’s version of events

6. According to the applicant, on 10 January 2007 at approximately 10.30 p.m. the applicant and K. were walking down the street in their town. A white Lada car drove up to them and stopped. Two persons in plain clothes got out, one of whom was a local police lieutenant, Ts. While Ts. was talking to the applicant and K., two more vehicles - an Audi and a Volkswagen - drove up. Seven or eight men in plain clothes got out of the cars. They pushed the applicant into one of the cars. K. broke free and escaped.

7. The individuals who had arrested the applicant took him to an office on the third floor of the police station, where they punched and kicked him and insulted him, shouting that “all Ingush should be crushed”. From time to time they put a black plastic bag over his head to suffocate him. They took off his shoes and beat him on his heels. When the applicant lost consciousness, they poured cold water over him to revive him. They then took him to another office on the first floor.

8. There the policemen planted a grenade in the pocket of his jacket. They searched him and “found” the grenade. The applicant was then interviewed by the investigator. During the questioning, he told the investigator about the arrest (abduction) and the planting of the grenade.

2. The Government’s version of events

9. According to the Government, on 10 January 2007 at around 10.15 p.m. the police officers asked the applicant to go with them to the police station. The applicant refused, shouting obscenities. His reaction made the officers suspect that he might be in possession of a weapon which he could use against them. They made the decision to use force to arrest the applicant, and when he resisted they restrained him, using a combative technique. The police officers then took the applicant to the police station, where he was subjected to a medical examination due to his inebriated state. The medical report prepared on 11 January 2007 indicated that the applicant did not have any injuries.

10. On 11 January 2011 the investigator questioned the police officers who had carried out the applicant’s arrest. Police captain T. submitted that the decision to arrest the applicant had been taken on the basis of “operative” information received on 10 January 2010 that the applicant was in possession of firearms and ammunition and that he was the leader of a group of young people of Ingush ethnic origin who disturbed peace in the town and provoked tension between Ingush and Ossetian population. He stated that the policemen had stopped the applicant in the street, and had then put him in the car and taken him to the police station, where they had searched him and found a grenade. Lieutenant Ts. confirmed T.’s statement as regards the applicant’s arrest.

B. The applicant’s release

11. On 11 January 2007 police captain R. instituted criminal proceedings against the applicant on the charge of illegally possessing a grenade. At 9 p.m. the applicant signed an undertaking not to leave town and was released pending investigation.

12. On the same date the applicant’s parents retained a lawyer to represent him. The lawyer filmed the applicant’s injuries using her mobile phone.

13. On 12 January 2007 forensic medical expert Tkh. examined the applicant. The applicant submitted that on 10 January 2007 a group of persons unknown to him had “beaten him up”. They had kicked him, had beaten him with a stick and had throttled him. The medical expert documented the following injuries: “a bruise near the upper edge of the right shoulder blade measuring 4.5 by 4 cm ...[;] similar bruises on the rear surface of the chest at the level of the sixth to ninth ribs measuring 10 by 8 cm and on the rear surface of the chest at the level of the tenth to eleventh ribs measuring 8 by 6.5 cm; [bruises] near the sixth to eighth vertebrae measuring 8 by 1.5 cm”. The expert concluded that the bruises resulted from the impact of blunt solid objects, possibly at the time and in the circumstances indicated by the applicant.

14. On 16 February 2007 the prosecutor’s office discontinued the criminal investigation against the applicant on the charge of illegally possessing a grenade and advised him of his right to “rehabilitation”. The prosecutor found as follows:

“The investigative actions were conducted in violation of [the rules of criminal procedure] and the proceedings should be discontinued in view of the following:

The case file contains no information as regards the reasons for the [applicant’s] arrest;

[The applicant] was not searched at the place of his arrest ...; instead, the search was carried out at [the police station];

In contravention of [the rules of criminal procedure], ... the taking of the [applicant’s] fingerprints was not documented ... ;

The case file contains no evidentiary material as regards the examination of the grenade or the detection and recovery of the fingerprints; accordingly the findings set out in the forensic dactyloscopic expert report must be regarded as inadmissible evidence ... .”

C. Investigation into the applicant’s allegations of ill-treatment

15. On 19 February 2007 the deputy municipal prosecutor opened a criminal investigation into the applicant’s unlawful arrest and detention at the police station. On 1 March 2007 the applicant was given victim status in respect of the crime and questioned as to the events of 10 January 2007.

16. The criminal investigation into the applicant’s allegations about his ill-treatment in police custody was discontinued on several occasions. The decisions in this regard were taken on 19 April, 23 May and 20 November 2007, and 29 June 2012.

17. On 24 December 2014 the decision of 29 June 2012 was quashed and the case was re-opened. The acting head of the regional investigative committee held that the earlier investigation had been perfunctory and ordered further investigation.

18. On 12 January 2015 the deputy regional prosecutor studied the evidence in the applicant’s case file and identified the following defects in the investigation: (1) the investigating authorities had failed to complete all the necessary actions in order to clarify the facts in connection with the alleged ill-treatment; (2) no findings had been made as regards the existence of the applicant’s injuries; (3) the contradictions in the statements made by the forensic medical expert and the applicant had not been reconciled; (4) the investigating authorities had failed to question the forensic medical expert and the forensic expert who conducted a dactyloscopic examination; (5) the investigating authorities had failed to establish whether the police had conducted an internal inquiry in response to the applicant’s allegations of ill-treatment; (6) the investigating authorities had not conducted a face-to-face confrontation between the police officers and the applicant in order to reconcile the contradictions in their statements; (7) the investigating authorities had failed to identify the persons who had been present at the police station when the applicant was searched.

19. It appears that the criminal investigation is still ongoing at the present time.

D. Criminal proceedings against the applicant

20. According to the Government, on 19 March 2009 the Primorskiy District Court of Novorossyisk found the applicant guilty of robbery and sentenced him to two and a half years’ imprisonment. On 8 November 2011 the applicant was released on parole.

THE LAW

I. AS TO LOCUS STANDI OF MS BARAKHOYEVA

21. Following the applicant’s death, his mother Ms M. Barakhoyeva expressed the wish to pursue the application. The Government left the issue as to Ms Barakhoyeva’s standing to the Court’s discretion.

22. In the cases in which an applicant died after having lodged an application, the Court has taken into account the statements of the applicant’s heirs or of close family members expressing the wish to pursue the proceedings before the Court. For the Court’s assessment of the person’s standing to maintain the application on behalf of a deceased, what is important is not whether the rights at issue are transferable to the heirs but whether the victim made a choice to exercise his or her right of individual application under Article 34 of the Convention by activating the Convention mechanism (see Ergezen v. Turkey, no. 73359/10, § 29, 8 April 2014). 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). In this connection, the Court reiterates that human rights cases before it generally 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).

23. In view of the above and having regard to the circumstances of the present case, the Court accepts that Ms Barakhoyeva has a legitimate interest in pursuing the application in the late applicant’s stead. It will therefore continue dealing with the case at her request. For convenience, it will, however, continue to refer to Mr. Barakhoyev as the applicant in the present judgment.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

24. The applicant complained that he had been subjected to ill-treatment in police custody and that the ensuing investigation had not been effective. 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.”

25. The Government contested the applicant’s allegations. They alleged that the applicant had sustained the injuries in the course of his arrest. The police officers had had to use force against him to put an end to his resistance. The applicant could also have sustained the injuries when he was put in the car. The injuries had not been serious, meaning that the treatment to which the applicant had been subjected did not attain the minimum level of severity. Lastly, they pointed out that the national authorities had acted promptly in opening a criminal investigation in response to the applicant’s complaint about the alleged ill-treatment. Given that the investigation was not yet completed, in the Government’s opinion it would be premature to draw any conclusions as to the lack of effectiveness of the investigation. The progress of the investigation had been complicated by the unavailability of the applicant, whose whereabouts had been unknown after his release on parole in 2011.

26. The applicant pointed out that, according to the medical report compiled after he had arrived at the police station, he had not had any injuries at that time. However, after his release from police custody he had undergone a medical examination which had confirmed the presence of injuries on his body. He also alleged that the injuries had been sufficiently serious to attain the minimum level of severity required to fall within the scope of Article 3 of the Convention. Lastly, the applicant argued that the investigation into his allegations of ill-treatment in police custody had not been effective. The investigation had been ongoing since 2007. Practically no action had been taken by the investigative authorities between 1 March 2007 and 24 December 2014. The opening of the investigation had been delayed: the applicant had been prompt in reporting the incident of ill-treatment on 11 January 2007, but the criminal case had not been opened until 19 February 2007 and the applicant had been questioned only on 1 March 2014. No perpetrators had been identified. Those police officers who had taken part in the applicant’s arrest or had been present at the police station on 11 January 2007 had not been questioned. The statements made by the police officers and submitted by the Government had been recorded in the course of the criminal investigation against the applicant on the charge of possessing a grenade. The Government’s argument that the applicant had been unavailable for questioning was completely without foundation. The applicant had been convicted and sentenced to imprisonment for an unrelated offence two years after the events in question. For another twenty months he had remained in State custody serving a prison sentence. In 2015 the prosecutor’s office had identified all the shortcomings in the investigation but the Government had presented no evidentiary material showing that those shortcomings had been remedied.

A. Admissibility

27. The Court considers that the question of whether or not this complaint is premature, as asserted by the Government − since the investigation is still ongoing − and the question of whether the applicant exhausted the domestic remedies in respect of his complaint under Article 3 of the Convention are closely linked to the question of whether the investigation into his allegations of ill-treatment was effective. However, these issues relate to the merits of the applicant’s complaint under Article 3 of the Convention. The Court therefore decides to join these issues to the merits.

28. 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

1. General principles

(a) Investigation into the allegations of ill-treatment

29. The general principles concerning the right to the conduct of an effective investigation into allegations of ill-treatment are well established in the Court’s case-law and may be summarised as follows (see Lyapin v. Russia, no. 46956/09, 24 July 2014):

“125. 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. Such 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, among other authorities, Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV).

126. 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, for example, Kopylov v. Russia, no. 3933/04, § 133, 29 July 2010). Thus, the mere fact that appropriate steps were not taken to reduce the risk of collusion between alleged perpetrators amounts to a significant shortcoming in the adequacy of the investigation (see, mutatis mutandis, Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 330, ECHR 2007-II, and Turluyeva v. Russia, no. 63638/09, § 107, 20 June 2013). 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 had been respected (see, mutatis mutandis, Kelly and Others v. the United Kingdom, no. 30054/96, § 118, 4 May 2001).

127. It falls to the State to have recourse to a procedure which would enable it to take all measures necessary for it to comply with its positive obligation of effective investigation imposed by Article 3 (see, mutatis mutandis, Sashov and Others v. Bulgaria, no. 14383/03, §§ 64, 68 and 69, 7 January 2010; see also Vanfuli v. Russia, no. 24885/05, § 79, 3 November 2011; Nechto v. Russia, no. 24893/05, § 87, 24 January 2012; and Nitsov v. Russia, no. 35389/04, § 60, 3 May 2012).”

(b) Alleged ill-treatment

30. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of a democratic society. 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).

31. 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 them (see Gäfgen v. Germany [GC], no. 22978/05, §93, ECHR 2010).

32. Allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt” but adds that such proof may 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).

33. In respect of a person deprived of his liberty, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is an infringement of the right set forth in Article 3 (see Sheydayev v. Russia, no. 65859/01, § 59, 7 December 2006, and Ribitsch v. Austria, 4 December 1995, § 38, Series A no. 336). The burden of proof rests on the Government to demonstrate with convincing arguments that the use of force resulting in the applicant’s injuries was not excessive (see, for example, Dzwonkowski v. Poland, no. 46702/99, § 51, 12 April 2007).

34. The ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim. In respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is an infringement of the right set forth in Article 3 (see Bouyid v. Belgium [GC], no. 23380/09, §§ 100-01, ECHR 2015).

2. Application of these principles to the present case

(a) Adequacy of investigation

35. The Court observes that the Russian authorities did carry out an investigation into the applicant’s allegations of ill-treatment in police custody. It is not convinced, however, that the investigation satisfied the requirements of Article 3 of the Convention.

36. While the Court may accept that, by opening an official criminal investigation into the applicant’s allegations of ill-treatment in February 2007, the authorities acted without excessive delay, it cannot but note that the investigation has not yet been completed. The Court finds it striking that the case has been pending before the investigating authorities for over nine years and the latter have so far failed to clarify the circumstances of the case and deliver a reasoned decision on the matter.

37. The Court also notes that in January 2015, that is to say almost eight years after the criminal investigation into the applicant’s allegations of ill-treatment was opened, the numerous defects in the investigation - as pointed out by the regional prosecutor - had not been remedied (see paragraph 18 above). The Government have not furnished any explanation as regards the situation to date. It appears that the investigation is still pending, with no discernible progress.

38. Lastly, as regards the Government’s argument that the complaint under Article 3 is premature, in view of the seriousness of the issues at stake, the Court does not consider that the applicant should have waited for completion of the investigation before making his application to the Court, as the conclusion of those proceedings would not in any way have remedied the overall delay in conducting them (see Angelova and Iliev v. Bulgaria, no. 55523/00, § 103, ECHR 2007-IX).

39. In the light of the foregoing, the Court dismisses the Government’s objection and finds that the authorities failed to carry out an effective criminal investigation into the applicant’s allegations of ill-treatment in police custody. Accordingly, there has been a violation of Article 3 under its procedural limb.

(b) Alleged ill-treatment

40. The Court observes that the evidentiary material submitted by the parties conclusively demonstrates that on the day of his arrest and detention in police custody the applicant sustained multiple bruises which were both filmed by the lawyer retained by the applicant and also documented by a forensic medical expert (see paragraphs 13 above). The parties disagreed, however, as to their timing and cause. The applicant asserted that he had been severely physically assaulted by police officers while detained at the police station. The Government suggested that the applicant had sustained the injuries as a result of the force used against him, which had been necessary to overcome his resistance in the course of the arrest.

41. In an attempt to clarify the circumstances in which the applicant sustained the injuries, the Court attaches particular weight to the medical documents submitted by the parties. As submitted by the Government, the applicant underwent a medical examination on the day of his arrest. The relevant medical report stated that he did not have any injuries (see paragraph 9 above). The Court further notes that, once released from police custody, the applicant underwent a forensic medical examination which confirmed his allegation that he had sustained injuries during the time he was held in police custody (see paragraph 13 above). Accordingly, the Court finds it established that the applicant has made a prima facie case in support of his complaint of ill-treatment. It assumes that the applicant was in good health before he was taken into police custody. The burden therefore rests on the Government to provide a plausible explanation of how the injuries were caused.

42. The Court notes that the Government did no more than suggest that the applicant could have sustained the injuries in the course of the arrest, when the police officers had had to use force against him to overcome his resistance. The Court cannot accept the Government’s version of the events as credible, however. It discerns nothing in the material before it to substantiate the Government’s assertion. On the contrary, the medical evidence submitted by the parties, as noted above, clearly demonstrates that the applicant did not have any injuries after the arrest. The Court therefore considers that the Government failed to rebut the presumption that they were responsible for the injuries inflicted on the applicant while he was in the hands of the State. They have not satisfactorily established that his injuries were caused otherwise than - entirely, mainly, or partly - by the treatment he underwent while in police custody. It follows that responsibility for the ill-treatment lies with the domestic authorities.

43. Lastly, the Court observes that the applicant sustained multiple injuries to his body, which must have caused him mental and physical suffering. Contrary to the Government’s assertion, the absence of long-term health consequences cannot exclude a finding that the treatment is serious enough to be considered inhuman or degrading (compare Polonskiy v. Russia, no. 30033/05, § 124, 19 March 2009). The beatings the applicant endured strongly suggest that they were aimed at debasing him and forcing him into submission. The Court therefore finds the treatment to which the applicant was subjected was sufficiently serious to be considered inhuman and degrading within the meaning of Article 3 of the Convention.

44. In such circumstances, the Court concludes that there has been a violation of Article 3 of the Convention under its substantive limb on account of the inhuman and degrading treatment to which the applicant was subjected while in police custody.

III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

45. The applicant complained that his arrest and detention had been in contravention of Article 5 of the Convention, which, in so far as relevant, 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[.]”

46. The Government contested that argument. In their view, the applicant had not been deprived of his liberty on 10 and 11 January 2007.

47. The applicant maintained his complaint. He submitted that he had spent approximately 23 hours at the police station following his arrest on 10 January 2007. He argued that there had been no grounds for his arrest and detention and that they had been carried out in the absence of any reasonable suspicion that he had committed a crime. The Government had not shown any proof that the “operative” information referred to by the police officers, and allegedly giving rise to his arrest, had ever existed.

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 Court reiterates that Article 5 § 1 of the Convention requires in the first place that the detention be “lawful”, which includes the condition of compliance with a procedure prescribed by law. The expression “lawful” here essentially refers back to national law and states the obligation to conform to the substantive and procedural rules thereof, but it requires in addition that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect individuals from arbitrariness. A period of detention will in principle be lawful if it is carried out pursuant to a court order (see Benham v. the United Kingdom, 10 June 1996, §§ 40 and 42, Reports of Judgments and Decisions 1996-III).

50. Turning to the circumstances of the present case, the Court observes that, although it is disputed by the Government, the evidentiary material in the Court’s possession (see paragraphs 9-10 above), clearly demonstrates that on 10 January 2007 the police arrested the applicant and took him to the police station, where he underwent a search and was detained until his release subject to the undertaking that he would not leave his place of residence a day later. The Court, therefore, considers that the applicant was “deprived of his liberty” within the meaning of Article 5 § 1 of the Convention when he was taken by the policemen to the police station and held there for several hours.

51. The Court also notes − and this fact is not disputed by the Government − that there is no official record of the applicant’s arrest and ensuing detention. In this connection the Court reiterates that the absence of such a record must in itself be considered a most serious failing. It has been the Court’s constant view that unrecorded detention of an individual is a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention and discloses a most grave violation of that provision. The absence of a record of such matters as the date, time and location of detention, the name of the detainee, the reasons for the detention and the name of the person effecting it must be seen as incompatible with the requirement of lawfulness and with the very purpose of Article 5 of the Convention (see Fedotov v. Russia, no. 5140/02, § 78, 25 October 2005; Menesheva v. Russia, no. 59261/00, § 87, ECHR 2006; and Kurt v. Turkey, 25 May 1998, § 125, Reports of Judgments and Decisions 1998-III).

52. The lack of a proper record of the applicant’s arrest and detention on 10 and 11 January 2007 is therefore sufficient for the Court to find that there has been a violation of Article 5 § 1 of the Convention (compare Anguelova v. Bulgaria, no. 38361/97, § 157, ECHR 2002-IV, and Menesheva, cited above, §§ 87-89).

IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

53. The applicant complained that he had not had an effective remedy in respect of his complaint about ill-treatment in police custody. He relied on Article 13 of the Convention, which provides:

“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.”

54. The Court observes that this complaint concerns the same issues as those examined above under the procedural limb of Article 3 of the Convention and should therefore be declared admissible. However, in the light of its conclusions above under Article 3, the Court considers it unnecessary to examine those issues separately under Article 13 of the Convention.

V. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION

55. The applicant complained under Article 14 of the Convention in conjunction with Articles 3 and 5 that he had been subjected to discrimination because of his ethnic origin. In particular, he alleged that that the police’s decision to arrest and detain him and his ill-treatment in police custody had been due to his ethnicity. Article 14 reads as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

56. The Government argued that the applicant’s arrest and detention had resulted from his unlawful behaviour. There was nothing in the evidentiary material to suggest that the applicant had been discriminated against because of his ethnicity.

57. The applicant maintained his complaint. He referred to the statement made by police officer T. in which the latter claimed that the applicant had been suspected of being the leader of a group of young people of Ingush ethnic origin who disturbed peace in the town and provoked tension between Ingush and Ossetian population.

58. Having examined the material submitted by the parties, the Court finds no indication that the actions of the police resulting in the violation of the applicant’s rights under Articles 3 and 5 of the Convention were connected to his ethnic origin. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION

59. 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

60. The applicants claimed compensation in respect of non-pecuniary damage, leaving the amount of the award to the Court’s discretion.

61. The Government considered that, in the circumstances of the case, no compensation should be awarded to Ms Barakhoyeva.

62. The Court notes that the applicant was a victim of police brutality, his arrest and detention having been unlawful and the ensuing investigation ineffective. In these circumstances, the Court considers that the applicant’s suffering and anguish cannot be compensated for by the mere finding of a violation. Making its assessment on an equitable basis, the Court considers that 19,500 euros (EUR) shall be paid to Ms Barakhoyeva, plus any tax that may be chargeable on that amount, in respect of non-pecuniary damage.

B. Costs and expenses

63. The applicants claimed the following costs and expenses: (1) EUR 4,400 for the work performed by Mr A. Avetisyan and Ms T. Chernikova, who prepared the introductory letter, the application form and the applicant’s observations and claims for just satisfaction; (2) 175 pounds sterling (GBP) for the work of Mr P. Leach, who reviewed and amended the introductory letter and took part in a teleconference with the Memorial lawyers discussing the case; (3) GBP 750 for the work of Ms J. Evans, who studied the file and advised the Memorial lawyers on the matter; (4) GBP 1,047.57 for the translation of the documents from Russian into English; (5) GBP 90 for the work of the project support officer.

64. The Government submitted that the applicant had failed to provide supporting documents showing that he had actually incurred the costs and expenses claimed.

65. 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 4,400 covering costs and expenses for the work performed by Mr A. Avetisyan and Ms T. Chernikova, plus any tax that may be chargeable to the applicants on that amount, in addition to the sum paid by way of legal aid.

C. Default interest

66. 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. Joins to the merits the Government’s objection as to the exhaustion of domestic remedies and rejects it;

2. Declares the complaints under Articles 3, 5 and 13 of the Convention admissible and the remainder of the application inadmissible;

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

4. Holds that there has been a violation of Article 3 of the Convention under its procedural limb;

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

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

7. Holds

(a) that the respondent State is to pay Ms Barakhoyeva, the late applicant’s mother, 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 19,500 (nineteen thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 4,400 (four thousand four hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(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;

8. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 17 January 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 >> BARAKHOYEV v. RUSSIA - 8516/08 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2017] ECHR 54 (17 January 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/54.html Cite as: [2017] ECHR 54, ECLI:CE:ECHR:2017:0117JUD000851608, CE:ECHR:2017:0117JUD000851608