European Court of Human Rights

 

 

THIRD SECTION

CASE OF TSUROYEV AND OTHERS v. RUSSIA

(Applications nos. 8372/07 and 2 others –

see appended list)

 

 

 

 

JUDGMENT

STRASBOURG

8 June 2021

 

 

 

 

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

In the case of Tsuroyev and Others v. Russia,

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

          Darian Pavli, President,
          Dmitry Dedov,
          Peeter Roosma, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the applications (nos. 8372/07 and 2 others) 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 three Russian nationals (“the applicants”) on the various dates indicated in the appendix;

the decision to give notice to the Russian Government (“the Government”) of the complaints concerning alleged ill-treatment, unrecorded detention, and the use of confession statements allegedly obtained under duress to secure the convictions;

the parties’ observations;

Having deliberated in private on 11 May 2021,

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

INTRODUCTION

1.  The applicants were arrested and subsequently convicted of having participated in a massive armed attack in Nazran, Ingushetia, in June 2004. They alleged, among other things, that they had been ill-treated by State agents and that they had been convicted on the basis of confession statements obtained under duress.

THE FACTS

2.  The applicants are Russian nationals. A list of the applicants and their personal details are set out in the appendix.

3.  The Government were initially represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.

The circumstances of the case

A.    Background information

5.  On 21 and 22 June 2004 an organised group of armed men attacked law-enforcement and military buildings in the town of Nazran, Ingushetia. As a result at least 78 persons died, including civilians and law-enforcement officers, and 113 were wounded.

6.  A criminal case was opened into suspected murder, robbery, organisation and participation in illegal armed groups, arms trafficking and a number of other terrorism-related crimes.

7.  The applicants, along with at least nine other suspects, were arrested on suspicion of having participated in the attack.

B.    Arrest and alleged ill-treatment of Mr Tsuroyev (no. 8372/07)

8.  On 11 July 2004 the police arrested the applicant. On 14 July 2004 his arrest record was drawn up. The applicant was represented by K., a State‑appointed lawyer.

9.  On 14 July 2004 the applicant signed a confession statement (явка с повинной). He was interviewed as a suspect at the Department of the Interior (“OVD”) in Nazran. The applicant, represented by lawyer K., confessed to having participated in the attack in Nazran. According to the applicant, he was forced to give confession statements. The applicant was then placed in a temporary detention facility (“IVS”) in Nazran.

10.  On 17 and 22 July 2004 the applicant repeated his confession during an interview as an accused. He was represented by his lawyer, K.

11.  On 16 July 2004 the court ordered the applicant’s pre-trial detention. On an unspecified date he was transferred to remand prison no. 1 in Nazran. According to his medical notes, on 24 July 2004 he was examined by a doctor who recorded bruises on his buttocks.

12.  On 18 August 2004 the applicant was interviewed again. He was represented by his lawyer, K., and repeated his confession statements. According to the applicant, he was regularly beaten by police officers who forced him to repeat his confession statements in subsequent interviews.

13.  According to his remand prison medical notes of 19 August 2004, the applicant had a bruise measuring 15x15 cm on his right thigh.

14.  According to the applicant, he was afraid of complaining that he had been ill-treated because police officers had regularly beaten him during his questioning.

15.  No inquiry or investigation was opened into the applicant’s alleged ill-treatment.

16.  The applicant provided the Court with a statement given by K. on 17 August 2012, according to which the applicant had been ill-treated in the IVS and OVD during the investigation in 2004. K. submitted that the applicant had had bruises, haematomas on his body and, in particular, bruises on his buttocks and cuts on his arms. The applicant had asked him not to lodge complaints about his ill-treatment because he feared his further ill-treatment by the police.

C.    Arrest and alleged ill-treatment of Mr Makhnychev (no. 15357/07)

1.     Description of the events

17.  On 27 June 2004 police officers stopped the applicant at a checkpoint in Kabardino-Balkaria Republic for an identity check. The officers took him to a police station. According to the applicant, they took his car and never returned it to him.

18.  At the police station the officers beat the applicant with a bottle filled with water and threatened to harm his wife. He signed a statement, confessing to the attack in Nazran.

19.  On 29 June 2004 he was taken to the Federal Security Service (“FSB”) in Ingushetia, where the officers beat him, forcing him to confess to more events during the attack.

20.  On 30 June 2004 at 8.30 p.m. the applicant’s arrest record was drawn up. On 1 July 2004 he was interviewed as a suspect, represented by a State-appointed lawyer.

21.  On 2 July 2004 the applicant was placed in detention in a remand prison in Vladikavkaz.

22.  On an unspecified date in August 2004 the applicant was taken from the remand prison to the Ministry of the Interior in Ingushetia, where he was beaten and suffocated. He repeated his confession during the on-site reconstruction of events.

23.  Between July and September 2004 the applicant was represented by three State-appointed lawyers, one after the other. From 5 October 2004 onwards the applicant was represented by a lawyer of his choosing, T.K.

24.  On 1 December 2004 he was taken to an interview where police officers threatened him with further ill-treatment if he changed his statements at trial.

25.  On the same day he complained of ill-treatment to a prosecutor. The outcome is unknown.

26.  According to the applicant, on 17 March 2005 during a break in the court hearing, he was taken to the IVS, where officers beat him, forcing him to maintain his confessions during the trial. The applicant asked for an ambulance, which arrived and ambulance staff recorded his injuries in the IVS medical logs.

27.  The applicant made unsuccessful attempts to collect medical documents from the IVS medical unit.

28.  The Government did not provide the Court with the requested copies of the applicant’s medical documents from the detention facilities. They did not specify the reason for their failure to do so.

2.     Media coverage of the applicant’s trial

29.  According to the applicant, in several newspaper articles he had been declared guilty before his guilt was decided upon by a court.

30.  The parties did not submit copies of the newspaper articles mentioned by the applicant.

D.    Arrest and alleged ill-treatment of Mr Tsechoyev (no. 20544/07)

31.  On 2 August 2004 at about 2 p.m., officers of the Ingushetia FSB arrested the applicant at his workplace. According to the applicant, he was taken to an unknown location, where he was severely beaten with rubber truncheons in the area of his liver and kidneys, and on his head. The applicant was suffocated with a plastic bag and subjected to electric shocks. He was forced to confess to his participation in the Nazran attack.

32.  On the same day the applicant’s wife, mother and sister learned about his arrest. They requested information on his whereabouts from the prosecutor’s office.

33.  On 3 August 2004 the applicant’s arrest record was drawn up. A lawyer, K.Ch., was appointed for the applicant.

34.  According to the parties’ submissions, on 4 August 2004 the Nazran District Court ordered the applicant’s pre-trial detention. According to the trial court hearing records, the applicant’s pre-trial detention was ordered on 8 August 2004.

35.  According to the applicant, after the hearing he was taken to the Ministry of the Interior, where he was again beaten with rubber truncheons and gun butts, and subjected to asphyxiation and electric shocks. The applicant signed documents without reading their contents.

36.  During the next two days police officers visited him in the IVS seeking to obtain more confessions. The applicant was held in the IVS until 27 August 2004.

37.  Between 27 August and 28 September 2004 the applicant was held in remand prison no. 15/1 in the Republic of North Ossetia-Alania. On 28 September 2004 he was transferred to remand prison no. 2 in the Stavropol Region.

38.  According to the Government, on 28 September 2004 the applicant was examined by a doctor in remand prison no. 2. According to the Government, he had no injuries. The Government did not submit the requested copies of the applicant’s medical records from the detention facilities, without specifying the reason for their failure to do so.

39.  On an unspecified date in September 2004 the applicant’s relatives hired a lawyer, I.B., to represent him.

40.  On 10 November 2004 the applicant’s sister and I.B. were allowed for the first time to visit the applicant at a military base in Vladikavkaz. According to the applicant’s sister, the duration of the visit was limited to three minutes, during which she was obliged to speak Russian. She submitted that the applicant had had multiple haematomas on his neck and hands and that he had walked using a cane.

41.  According to the applicant’s sister, when the trial started, she learned from the applicant that he had been suffering from gastritis, inflammation of the gums, frequent headaches and cirrhosis, and his left kidney had descended.

E.    The applicants’ trial

1.     The applicants’ conviction of 3 August 2005

42.  On an unspecified date in December 2004 the Supreme Court of Ingushetia started the examination of the criminal case in respect of the attack in Nazran.

43.  On 3 August 2005 the court, sitting with a jury, examined the charges against the applicants and found them guilty as charged.

44.  The court heard the recordings containing Mr Tsuroyev’s confession statement of 14 July 2004 and the recordings of his interviews of 17, 22 July and 18 August 2004. It heard Mr Tsechoyev’s confession statement of 3 August 2004, and recordings of his interviews and the on-site reconstruction of events of 4, 9 and 18 August 2004.

45.  It also heard recordings of investigation activities in which Mr Makhnychev had participated. No dates of those recordings were provided.

46.  The court also heard the recordings of the court hearings of 2 and 16 July 2004 and 8 August 2004 concerning the applicants’ detention, the contents of which the applicants did not confirm during the trial. The Court was not provided with copies of these hearings’ recordings.

47.  The applicants pleaded not guilty and retracted all their confession statements given during the investigation and the hearings on detention. They complained of ill-treatment and argued that their confession statements had been obtained under duress. They requested a forensic medical examination. The court dismissed their arguments about the alleged ill-treatment and ordered the jury not to take the applicants’ statements about ill-treatment into account when deciding on the verdict.

48.  The court ordered the sentence to be counted from the dates on which the applicants’ arrest records had been drawn up.

2.     The appeal proceedings

49.  On various dates the applicants lodged appeals against the conviction judgment. The applicants complained of ill-treatment by police officers during the investigation. They also complained that the presiding judge had unreasonably rejected their requests for a medical examination. They argued that their confession statements, which had been used as evidence at the trial, had been obtained under duress.

50.  Mr Makhnychev and Mr Tsechoyev also complained of the jurors’ lack of impartiality, and of family connections between the jurors and police officers. According to Mr Makhnychev and Mr Tsechoyev, four jurors, M., G., E.A. and B.A., were relatives of police officers and had lied about their knowledge of the events in question before being selected as jurors.

51.  On 10 October 2006 the Supreme Court of Russia upheld the conviction judgment on appeal. As to the alleged ill-treatment and enforced confessions, it held that the applicants had been represented by lawyers at all stages of the proceedings. It ruled out any impartiality on the part of the jurors, finding that complaint to be unsubstantiated.

3.     Other information

52.  On 20 March 2017 and 2 August 2017 respectively, Mr Makhnychev and Mr Tsechoyev were released from the detention facilities upon the expiry of their sentences.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

53.  For the relevant provisions of domestic law on the prohibition of torture and other ill-treatment, and the procedure for examining a criminal complaint, see Lyapin v. Russia (no. 46956/09, §§ 96-102, 24 July 2014).

54.  For relevant domestic law and practice concerning the rights of suspects, see Turbylev v. Russia (no. 4722/09, §§ 46-49, 6 October 2015).

THE LAW

I.         JOINDER OF THE APPLICATIONS

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

II.      ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

56.  The applicants complained that they had been subjected to ill‑treatment at the hands of State officers and that no effective investigation into their complaints had been carried out. They relied on Article 3 of the Convention, which reads as follows:

Article 3

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

A.    Admissibility

57.  The Government submitted that the applicants had not exhausted domestic remedies, in particular, that they had never lodged a criminal complaint against the police officers in respect of the alleged ill-treatment.

58.  The applicants maintained their complaints and argued that they had not complained of ill-treatment during their investigation because of the risk of further ill-treatment by the police. They submitted that they had complained at the trial, and had requested the court to order a forensic medical examination, but the court had dismissed their requests and had failed to properly address their allegations.

59.  The Court considers that the Government’s non-exhaustion plea is closely linked to the substance of the applicant’s complaint that the State had failed to conduct an investigation. This objection must be joined to the merits of the case (see Gjini v. Serbia, no. 1128/16, § 67, 15 January 2019).

60.  The Court notes that the complaints are neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.

B.     Merits

61.  The applicants submitted that their allegations were confirmed by their detailed description of the events, and by the statements of lawyer K. and Mr Tsechoyev’s sister.

62.  The Government contested the applicants’ description of the events and submitted that the applicants’ allegations of ill-treatment had not been confirmed by any evidence. They argued that since the applicants had not complained of ill-treatment during their investigation, their allegations could not be verified.

1.     Alleged ill-treatment

63.  The Court notes that the applicants were arrested on suspicion of having participated in the attacks in Nazran in June 2004. It is not disputed that the applicants were detained on 27 June 2004 (Mr Makhnychev), 11 July 2004 (Mr Tsuroyev) and 2 August 2004 (Mr Tsechoyev) without their arrests being recorded (see paragraphs 8, 17 and 31 above). The Court is concerned about the length of their unrecorded detention - three days in the case of Mr Tsuroyev and Mr Makhnychev, and one day in the case of Mr Tsechoyev. During that time they remained in police custody without the essential safeguards against ill‑treatment such as a medical examination, the right of access to a lawyer, and the right to inform a third party of the detention (see Abdulkadyrov and Dakhtayev v. Russia, no. 35061/04, § 55, 10 July 2018).

64.  The Court further notes that on 24 July 2004 Mr Tsuroyev was examined by a doctor for the first time after his arrest and he was diagnosed with bruises to his buttocks (see paragraph 11 above). On 19 August 2004 an extensive bruise was recorded on his right thigh (see paragraph 13 above). His lawyer also submitted that he had had injuries (see paragraph 16 above). Mr Tsechoyev’s sister, who had visited him in November 2004 at a military base, submitted that he had had numerous visible injuries and had used a cane to move around (see paragraph 40 above). As to Mr Makhnychev, the Court observes that no medical documents were submitted in support of his allegations of ill-treatment. However, the Court takes note of his submission that he unsuccessfully attempted to access his medical documents following the alleged ill-treatment on 17 March 2005 (see paragraph 27 above).

65.  In this regard the Court observes that despite its clear request to the Government, they failed to submit the applicants’ medical documents from the remand prison and temporary detention facilities, where the applicants had been held. The Government did not provide any explanation for their failure to produce relevant documents, which were clearly in their possession (see paragraphs 28 and 38 above).

66.  In these circumstances, the Court can draw inferences from the Government’s conduct and examine the merits of the case on the basis of the applicants’ arguments and existing materials in the case files (see Mikheyev v. Russia, no. 77617/01, § 105, 26 January 2006, and Zakharin and Others v. Russia, no. 22458/04, § 63, 12 November 2015). It considers that the applicants presented a coherent and convincing picture of their ill‑treatment by State officers, partly supported by medical documents and by the statements of Mr Tsechoyev’s lawyer and relative, and finds that the applicants made credible allegations of their ill-treatment in police custody, particularly so in view of the Government’s failure to submit evidence requested by the Court.

2.     Whether the authorities were sufficiently aware of the applicants’ grievances

67.  The Government submitted that they could not investigate the applicants’ allegations, as they had never complained that they had been ill‑treated. The latter disagreed and argued that they had raised the issue during the trial.

68.  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 of the Convention also requires that the 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 Akdivar and Others v. Turkey, 16 September 1996, §§ 65-67, Reports of Judgments and Decisions 1996‑IV, and Aksoy v. Turkey, 18 December 1996, §§ 51-52, Reports of Judgments and Decisions 1996-VI).

69.  The Court reiterates that Article 3 of the Convention gives rise to a positive obligation to conduct an official investigation where an individual raises an arguable claim of ill-treatment (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998‑VIII). Such an investigation must be launched by the authorities of their own motion, in the absence of an express complaint, if there are sufficiently clear indications that torture or other ill-treatment has occurred (see Kyriacou Tsiakkourmas and Others v. Turkey, no. 13320/02, § 270, 2 June 2015). Once the matter has come to the attention of the authorities, they must act of their own motion and cannot leave it to the applicant to take responsibility for the conduct of investigatory procedure (see Tahirova v. Azerbaijan, no. 47137/07, § 57, 3 October 2013).

70.  In the present case, the Court notes that both parties seem to agree that a criminal-law complaint was an adequate remedy in respect of the applicants’ allegations of beatings, at least in principle. According to the Government, since the applicants did not lodge such a complaint, it cannot be said that they had exhausted domestic remedies. The applicants explained that they had not lodged a criminal-law complaint with the authorities because they had been regularly beaten by the officers and had risked further ill-treatment if they had raised the issue (see paragraph 58 above).

71.  The Court has already noted that the applicants had been held in unrecorded detention for several days following their arrest (see paragraph 63 above). They were then held in the IVS and were regularly moved to remand prison and the Ministry of the Interior for investigative activities, during which they gave confession statements (see paragraphs 9, 10, 21, 22, 36 and 37 above). The Court has also observed that the applicants had injuries, some of which had been visible (see paragraph 40 above). Given that the applicants had been under the authorities’ control since their arrest, and that every time they were admitted to the IVS or remand prison they must have been checked by medical staff, the Court finds that the authorities must have been aware of the issues regarding the applicants’ state of health. In this regard the Court reiterates that the Government’s refusal to provide the applicants’ medical documents without justification provides grounds for the Court to draw factual inferences unfavourable to the Government (see paragraph 66 above).

72.  The Court further observes that Mr Tsechoyev’s sister, and a lawyer who had been chosen for him by his relatives, were allowed to see the applicant for the first time more than three months after his arrest (see paragraph 40 above). In addition, Mr Makhnychev was represented by a lawyer of his choosing three months after his arrest (see paragraph 23 above). At that time, according to the case file, police officers had access to the applicants at any time (see paragraph 36 above), which put them at risk of ill-treatment.

73.  In this connection, the Court also notes the statement of Mr Tsuroyev’s lawyer K. that the applicant, who had visible injuries and showed signs of being ill-treated, had explicitly asked him not to lodge a complaint for fear of being beaten again (see paragraph 16 above).

74.  Lastly, the Court observes that as soon as the investigation was over and the trial had started, the applicants raised the issue of ill-treatment. According to the trial court records, the applicants stated that they had been beaten following their arrests, and requested the trial court to order their medical examination (see paragraph 47 above). They also raised that issue in their appeal against conviction (see paragraph 49 above). The Court observes, however, that their arguments remained unexamined by both the trial court and the appellate court (see paragraph 51 above). No medical examinations of the applicants or inquiries into their ill-treatment were carried out. The reason for this is unclear and the Government failed to clarify it. The Court observes that throughout the proceedings the applicants’ behaviour and their arguments were coherent and consistent.

75.  The Court considers that the circumstances in which the applicants found themselves certainly caused them to feel vulnerable, powerless, and apprehensive of the representatives of the State (see, mutatis mutandis, İlhan v. Turkey [GC], no. 22277/93, § 63, ECHR 2000‑VII). As it appears from the chronology and circumstances of the case, the Court considers that the matter was sufficiently drawn to the attention of the authorities and there was enough evidence before the authorities for them to react. The Court notes with regret that despite this, the authorities did not even open a pre-investigation inquiry, let alone a fully-fledged investigation.

76.  The Court considers that the applicants could legitimately have expected that the necessary investigation would be conducted without a specific, formal complaint (ibid.). It finds that above-mentioned circumstances triggered the State’s obligation to investigate the applicants’ ill-treatment of its own motion (see, mutatis mutandis, Kyriacou Tsiakkourmas and Others, cited above, § 271).

3.     Assessment of the severity of the ill-treatment

77.  The applicants alleged that they had been subjected to torture.

78.  The Court considers that the ill-treatment inflicted on the applicants clearly caused severe physical and mental suffering. The sequence of events also demonstrates that the pain and suffering were inflicted on them regularly for several months and with a view to extracting confessions to having committed crimes, and to ensuring that the applicants repeated their confessions throughout the proceedings (see Samoylov v. Russia, no. 64398/01, § 53, 2 October 2008, and Lolayev v. Russia, no. 58040/08, § 79, 15 January 2015). In this respect the Court notes that it has found a violation of Article 3 of the Convention in a similar case, where the police had subjected the applicant and his brother to torture, forcing them to confess to the participation in the same attack on Nazran in June 2004 (see Velkhiyev and Others v. Russia, no. 34085/06, § 125, 5 July 2011).

79.  The Court concludes that, in the present case, the repeated acts of violence to which the applicants were subjected amounted to torture (see Mukayev v. Russia, no. 22495/08, § 70, 14 March 2017, and Abdulkadyrov and Dakhtayev, cited above, § 70).

4.     Conclusion

80.  In the light of the foregoing, in the absence of an effective official investigation, the Court dismisses the Government’s objection as to the applicants’ failure to exhaust domestic remedies by making use of the criminal-law complaint procedure.

81.  The Court considers that, in circumstances of the case, the conduct of the national authorities and the manner in which they responded to the applicants’ claims of ill‑treatment failed to comply with the State’s procedural obligations deriving from Article 3 of the Convention (see J.L. v. Latvia, no. 23893/06, § 88, 17 April 2012). It follows that there has been a violation of both substantive and procedural aspects of Article 3 of the Convention in respect of all of the applicants.

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

82.  Mr Makhnychev (no. 15357/07) complained of his unrecorded detention between 27 and 30 June 2004, under Article 5 § 1 of the Convention, the relevant part of 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 ...”

A.    Admissibility

83.  The Government submitted that the applicant had failed to exhaust domestic remedies. The applicant maintained his complaint.

84.  In the light of the Court’s findings regarding the Government’s non‑exhaustion objection under Article 3 of the Convention, it notes that the applicant raised the issue of unrecorded detention during the trial. The authorities did not react to the allegations made at trial. The Court therefore rejects the Government’s objection.

85.  The Court notes that the applicant’s complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.    Merits

86.  The Court has already observed that the applicant was arrested on 27 June 2004 and that that was not disputed by the Government (see paragraph 63 above). The applicant’s arrest record was drawn up on 30 June 2004.

87.  The Court therefore finds it established that the applicant was detained as a suspect by State officers without acknowledgment for three days. The lack of any acknowledgment or record of the applicant’s detention as a suspect led to him being deprived of access to a lawyer and of all other rights of a suspect, which meant that he was left completely at the mercy of those holding him. As such, the applicant was vulnerable not only to arbitrary interference with his right to liberty but also to ill-treatment (see Fartushin v. Russia, no. 38887/09, § 53, 8 October 2015, and Golubyatnikov and Zhuchkov v. Russia, nos. 44822/06 and 49869/06, § 83, 9 October 2018). There has accordingly been a violation of Article 5 § 1 of the Convention in respect of Mr Makhnychev.

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

88.  The applicants complained that their conviction had been based on confession statements obtained as a result of ill-treatment, which rendered the trial unfair. They relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows:

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

A.    Admissibility

89.  The Court notes that the complaints are neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.

B.     Merits

90.  The applicants maintained their complaints. The Government argued that in addition to the applicants’ written confession statements, their convictions had been based on a wide range of evidence obtained by the investigation. The trial courts had examined the applicants’ allegations of ill-treatment and had dismissed them as unsubstantiated.

91.  The Court reiterates that the admission of confession statements obtained in violation of Article 3 of the Convention renders the criminal proceedings as a whole automatically unfair, irrespective of the probative value of those statements and irrespective of whether their use was decisive in securing the defendant’s conviction (see Gäfgen v. Germany [GC], no. 22978/05, § 166, ECHR 2010, and Turbylev v. Russia, no. 4722/09, § 90, 6 October 2015).

92.  In the present case, the Court has already found that the applicants’ confession statements were obtained as a result of torture, to which they had been subjected at the hands of State officers (see paragraph 78 above). The domestic courts dismissed their request to exclude the confession statements as inadmissible evidence and had it read out before the jury (see paragraphs 44-46 above).

93.  The Court concludes that in rejecting the applicants’ request to declare the evidence containing their confessions statements inadmissible on the grounds that it had been obtained under duress, the trial court failed to carry out an independent and comprehensive review of the applicants’ credible allegations that their self-incriminating statements were the result of police violence (see Sergey Ivanov v. Russia, no. 14416/06, § 90, 15 May 2018).

94.  In such circumstances, the Court concludes that the domestic courts’ use of the applicants’ confessions obtained in violation of Article 3 of the Convention, regardless of the impact of those confessions on the outcome of the criminal proceedings, rendered the applicants’ trial unfair.

95.  There has accordingly been a violation of Article 6 § 1 of the Convention in respect of all of the applicants.

V.     OTHER ALLEGED VIOLATIONS OF THE CONVENTION

96.  Mr Makhnychev (no. 15357/07) and Mr Tsechoyev (no. 20544/07) complained under Article 6 § 1 of the Convention that their trial had been unfair because four jurors, M., G., E.A. and B.A., had had family connections with the police, and they had been biased. Mr Makhnychev also complained under Article 6 § 2 of the Convention about the newspaper articles about his participation in the attack, which were published prior to the delivery of the judgment, in breach of the presumption of innocence.

97.  Having regard to all the material in its possession, the Court finds that the complaints are unsubstantiated. It follows that these complaints must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

98.  Mr Makhnychev also complained under Article 1 of Protocol No. 1 of the Convention that his car had never been returned to him. The Court notes that the applicant failed to exhaust domestic remedies in respect of this complaint, and it must be rejected pursuant to Article 35 § 4 of the Convention.

99.  Lastly, the applicants also complained under Article 13 of the Convention that there had been no effective remedies in respect of their complaints of ill-treatment. In the light of the Court’s finding under the procedural aspect of Article 3 of the Convention, the Court considers that it is not necessary to examine whether there has also been a violation of Article 13 of the Convention.

VI.   APPLICATION OF ARTICLE 41 OF THE CONVENTION

100.  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.    The parties’ submissions

101.  The amounts claimed by the applicants in respect of non‑pecuniary damage and costs and expenses are indicated in the appendix.

102.  Mr Tsuroyev also claimed an award in respect of pecuniary damage amounting to 48,000 euros (EUR), representing his family’s alleged expenses and his loss of income. He did not provide documents supporting his claims.

103.  The Court granted legal aid to Mr Makhnychev amounting to EUR 850.

104.  Mr Tsuroyev provided a copy of a contract for legal services in support of his claims for costs and expenses incurred before the Court. Mr Makhnychev and Mr Tsechoyev did not provide copies of the contracts with their lawyers for legal services.

105.  The Government submitted that the applicants’ claims were unsubstantiated.

B.    The Court’s assessment

106.  Wherever the Court finds a violation of the Convention, it may accept that the applicants have suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation, and make a financial award.

107.  As to costs and expenses, the Court has to establish whether they were actually incurred and whether they were necessary and reasonable as to quantum (see McCann and Others v. the United Kingdom, 27 September 1995, § 220, Series A no. 324).

108.  Having regard to the conclusions and principles set out above and to the parties’ submissions, and taking into account the legal aid granted to Mr Makhnychev, the Court awards the applicants the amounts detailed in the appendix, plus any tax that may be chargeable to them on those amounts.

109.  As regards Mr Tsuroyev’s claim for pecuniary damage, the Court considers that it is unsubstantiated. Consequently, it finds no reason to award the applicant any sum under this head.

110.  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.      Decides to join the applications;

2.      Decides to join to the merits the Government’s preliminary objection concerning non-exhaustion of domestic remedies under Article 3 of the Convention and dismisses it;

3.      Declares the complaints concerning the applicants’ ill-treatment and lack of investigation thereof, their convictions based on evidence obtained under duress, and Mr Makhnychev’s unrecorded detention admissible, and the remainder of the applications inadmissible;

4.      Holds that there has been a violation of the substantive and procedural aspects of Article 3 of the Convention in respect of all the applicants;

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

6.      Holds that there has been a violation of Article 6 § 1 of the Convention in respect of all the applicants;

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

8.      Holds

(a)  that the respondent State is to pay the applicants, within three months, the amounts indicated in the appendix, plus any tax that may be chargeable to the applicants, 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 amounts indicated in the appendix at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

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

Done in English, and notified in writing on 8 June 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova                                                                    Darian Pavli
Deputy Registrar                                                                       President

 

 

Appendix

List of cases: