CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 24 septembre 2019

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .s7ED160F0 { text-decoration:none } .sC36A6361 { font-family:Arial; color:#000000 } .sBB355983 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s26FF04E7 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s50F82B64 { width:186.26pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }       THIRD SECTION             CASE OF NEUYMIN v. RUSSIA   (Application no. 42265/06)                           JUDGMENT         STRASBOURG   24 September 2019       This judgment is final but it may be subject to editorial revision. In the case of Neuymin v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of:   Alena Poláčková, President,   Dmitry Dedov,   Gilberto Felici, judges, and Stephen Phillips, Section Registrar, Having deliberated in private on 3 September 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 42265/06) 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 Anton Sergeyevich Neuymin (“the applicant”), on 18 September 2006. 2.     The applicant was represented by Ms S. Yevdokimova, a lawyer practising in Yekaterinburg. The Russian Government (“the Government”) were represented initially 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. 3.     On 6 March 2013 the application was communicated to the Government. The parties submitted written observations on the admissibility and merits. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 4.     The applicant was born in 1979 and lived in Yekaterinburg before his arrest. A.     The applicant’s alleged ill-treatment in police custody 5.     On 25 October 2004 the applicant was apprehended by police on suspicion of murder and taken to the Verkh-Isetskiy District Police Department of Yekaterinburg where he was kept until 5.40 p.m. on 27   October 2004. 6.     According to the applicant, between 6 p.m. on 25 October and midnight on 26 October 2004 he had been ill-treated by police officers. He was kicked and hit on various parts of the body, suffocated with a gas mask, and electrocuted. The applicant remained handcuffed and blindfolded at all times. 7.     Around midnight on 26 October 2004 the applicant, assisted by an assigned lawyer, agreed to sign a confession. He was then taken by police officers to the crime scene for the on-site verification of his statements. 8.     On the same day the applicant’s relatives retained Ms P. as the applicant’s counsel. The investigator K. was immediately notified of the fact. 9 .     On 27 October 2004 at 5.40 a.m. the applicant arrived to the police ward (IVS) of Yekaterinburg. Upon his arrival he was examined by resident medical officers who recorded numerous bodily injuries, including epithelised thermal burns on both forearms, scratches, bruising on the back, and abrasions on the nose and forehead. These injuries had also been listed in a medical certificate issued on the same day by Traumatology Department No. 2 in Yekaterinburg Town Clinical Hospital No. 36. 10.     Later that day the applicant, assisted by Ms P., was once again questioned by the investigator. He withdrew his earlier confession, having noted that it had been obtained under duress. He also complained about inability to choose a lawyer at the time of his arrest and to notify his relatives about it. 11.     On 28 October 2004 the applicant was transferred to pre-trial detention facility SIZO No. 1 in Yekaterinburg. His injuries were once again recorded by the medical staff of the facility upon his arrival. 12.     On 28 October 2004, in response to a motion filed by Ms P, investigator K. ordered a medical expert examination of the applicant. The applicant was only examined on 17   December 2004. The expert discovered that he had two scars on his right forearm, a scar on his left forearm, and a scar on his left wrist. The expert was unable to establish the exact date and cause of the injuries due to the lapse of time. 13.     On 26 December 2005 the Verkh-Isetskiy District Court of Yekaterinburg, relying inter alia on the applicant’s confession statement, convicted him of murder. The conviction was subsequently upheld by the Sverdlovsk Regional Court on 22 March 2006. The courts took note of the applicant’s ill-treatment allegations, but dismissed them as there was no proof that the injuries had been inflicted in police custody. B.     Inquiry into the applicant’s alleged ill-treatment 14.     Between October 2004 and February 2006 the applicant and his lawyer Ms P. lodged at least seven complaints with the Verkh-Isetskiy District of Yekaterinburg and Sverdlovsk Region Prosecutors’ Offices requesting the institution of criminal proceedings against the police officers 15.     On 10 February 2006 investigator Sh. in the Verkh-Isetskiy District Prosecutor Office refused to open a criminal case. On 17 May 2006 the Verkh-Isetskiy District Court of Yekaterinburg quashed that decision and ordered a further inquiry. 16.     On 19 June 2006 investigator Sh. once again refused to institute criminal proceedings in absence of any evidence of ill-treatment. 17.     On 20 November 2006 the Verkh-Isetskiy District Court of Yekaterinburg, acting upon the applicant’s appeal against the investigator’s decision of 19 June 2006, closed the proceedings on res judicata grounds. It found that the applicant’s allegations had already been examined during the criminal proceedings leading to his conviction. On 13 December 2006 the Sverdlovsk Regional Court upheld the District Court’s decision on appeal. II.     RELEVANT DOMESTIC LAW 18.     For the relevant domestic law see Lyapin v. Russia , no. 46956/09, §§   96-102, 24 July 2014 and Olisov and others v. Russia , nos. 10825/09 and two others, §§ 67-68, 2 May 2017. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 19.     The applicant complained under Articles 3 and 13 of the Convention that he had been subjected to ill-treatment by the police and that no effective investigation had been carried out into his complaints. The Court finds it appropriate to examine the applicant’s allegations under Article   3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 20.     The Government contested the applicant’s arguments relying on the conclusions of the domestic inquiries, which, according to them, had been effective. A.     Admissibility 21.     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 22.     The relevant general principles were reiterated by the Court in the case of Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-88, ECHR 2015). 2.     Alleged ill-treatment of the applicant 23.     The Court notes that after an interview in the Verkh-Isetskiy District Police Department of Yekaterinburg after the arrest a number of injuries were recorded on the applicant’s body by medical officials of the detention facility where he had been transferred directly from the police department (see paragraphs 6-9 above). In the aftermath of the interview the applicant signed a written statement confessing to murder. That finding is sufficient to give rise to a presumption in favour of the applicant’s account of events and to satisfy the Court that the applicant’s statement that he had been ill-treated by the police officers in the Verkh-Isetskiy District Police Department is credible. 24.     Accordingly, the burden of proof shifted onto the Government to provide a satisfactory and convincing explanation which cast doubt on the version of events given by the applicant. 25.     The Court observes that in their observations the Government indicated that the applicant’s allegations were examined by relevant domestic authorities and dismissed as unsubstantiated. However, neither the judgement of 26 December 2005 nor multiple refusals to initiate criminal proceedings gave credible explanation of the applicant’s injuries. For instance, no explanation was provided to the cause of thermal burns which could not have been received by the applicant during his apprehension by police. 26.     The above findings are sufficient for the Court to conclude that the Government failed to provide a satisfactory and convincing explanation as to the cause of the applicant’s injuries. Therefore, the Court accepts the applicant’s account of events. 27.     Having regard to all the circumstances of the treatment, its physical and mental effects and the applicant’s state of health, the Court is satisfied that the acts of physical violence inflicted on the applicant on 26 October 2004 amounted to inhuman and degrading treatment 28.     Therefore, the Court concludes that there has been a violation of Article 3 of the Convention under its substantive limb. 3.     Investigation into the allegations of ill-treatment 29.     The Court observes that in response to the applicant’s allegations that his injuries were the result of ill-treatment in police custody the domestic authorities conducted a pre-investigative inquiry, which is an initial stage in dealing with a criminal complaint under the Russian law. It should normally be followed by the opening of a criminal case and an investigation if the information has disclosed elements of a criminal offence (see Lyapin v. Russia , cited above, §§ 129 and 132-36). In Lyapin case the Court held that a pre-investigation inquiry is insufficient to satisfy the requirements of an effective investigation under Article 3 of the Convention and that the authorities’ refusal to institute a fully-fledged criminal investigation into the credible allegations of ill-treatment was indicative of the State’s failure to comply with its procedural obligation under Article 3 of the Convention. 30.     The Court has no reason to hold otherwise in the present case, which involves credible allegations of ill-treatment of which the authorities were promptly made aware. It finds that the authorities have failed to carry out an effective investigation into the applicant’s allegations of ill-treatment in police custody, as required by Article 3 of the Convention. There has accordingly been a violation of Article 3 of the Convention under its procedural limb. II.     ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 31.     The applicant complained that his conviction had been based on a confession statements received as a result of his ill-treatment and that the trial court had failed to give due regard to his allegations of ill-treatment. He did not rely on any particular Convention provision. The Court finds it appropriate to examine this complaint under Article 6 § 1 of the Convention, which read as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 32.     The Government argued that in addition to the applicant’s written confession statement the applicant’s conviction had been based on a plethora of evidence obtained by the investigation. The trial court had examined the applicant’s allegations of ill-treatment and had dismissed them as unsubstantiated. A.     Admissibility 33.     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 34.     The Court reiterates that the admission of confession statements obtained in violation of Article 3 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). 35.     The Court has already found that the applicant’s confession was obtained as a result of the inhuman and degrading treatment to which he had been subjected in police custody. The trial and appeal courts did not exclude the confession statement as inadmissible evidence and referred to it when convicting the applicant of a crime to which he had confessed in that written statement. 36.     In such circumstances, the Court concludes that the domestic courts’ use of the applicant’s confession obtained in violation of Article 3 of the Convention, regardless of its impact on the outcome of the criminal proceedings, has rendered the whole trial unfair. 37.     Accordingly, there has been a violation of Article 6 § 1 of the Convention. III.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 38.     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 39.     The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage. 40.     The Government contested these claims and submitted that the requested amount was excessive. They also argued that the finding of a violation would constitute in itself sufficient just satisfaction in relation to a claimed violation under Article 6 § 1 of the Convention. 41.     The Court observes that the applicant must have suffered a certain degree of stress and frustration as a result of the violations found. The actual amount claimed is, however, excessive. Making its assessment on an equitable basis and having regard in particular to the fact that domestic law provides that criminal proceedings may be reopened if the Court finds a violation of Article 6 of the Convention (see Zadumov v. Russia , no.   2257/12, § 80, 12   December 2017), the Court awards the applicant 25,000 EUR in respect of non-pecuniary damage, plus any tax that may be chargeable. B.     Costs and expenses 42.     The applicant did not submit a claim for costs and expenses. Accordingly, the Court considers that there is no call to award him any sum on that account. C.     Default interest 43.     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 application admissible;   2.     Holds that there has been a violation of Article 3 of the Convention that the applicant had been subjected to inhuman and degrading treatment by the police and that there had been no effective investigation into his allegations of ill-treatment;   3.     Holds that there has been a violation of Article 6 § 1 of the Convention on account of the use in evidence of the applicant’s confession statements obtained as a result of his inhuman and degrading treatment;   4.     Holds (a)     that the respondent State is to pay the applicant within three months EUR 25,000 (twenty five 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;   5.     Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 24 September 2019, pursuant to Rule   77   §§   2 and 3 of the Rules of Court. Stephen Phillips   Alena Poláčková   Registrar   President