CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 11 mai 2021

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RUSSIA (Application no. 9519/10)             JUDGMENT   STRASBOURG 11 May 2021   This judgment is final but it may be subject to editorial revision. In the case of Batrakov 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 application (no.   9519/10) 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 Maksim Dmitriyevich Batrakov (“the applicant”), on 1   February 2010; the decision to give notice to the Russian Government (“the Government”) of the complaints concerning the applicant’s alleged ill ‑ treatment by the police, the lack of an effective investigation into his complaint and the use of his self-incriminating statements at his trial, and to declare inadmissible the remainder of the application; the parties’ observations; Having deliberated in private on 30 March 2021, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The application concerns the applicant’s alleged ill-treatment by police, the lack of an effective investigation into his complaint and the use at his trial of his confession statements. THE FACTS 2.     The applicant was born in 1990 and lives in Ulyanovsk. The applicant was represented by Ms Ye.V. Gorash, a lawyer practising in Ulyanovsk. 3.     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. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s arrest and alleged ill-treatment 5.     On 28 August 2008 as a result of operational-search activities of the Zheleznodorozhniy district police department of Ulyanovsk the applicant was identified as a person who might have committed a physical assault. The applicant was apprehended and taken to the Zheleznodorozhniy police station in Ulyanovsk. 6.     According to the applicant, during his arrest, which was carried out at approximately 2.30 p.m. on 28   August 2008 near his home, he was pushed to the ground, handcuffed and punched in the head. The applicant provided the following account of events at the police station. Two police officers covered his head with a sweatshirt, pushed him to the floor and delivered blows to his lumbar region and legs, at some point with a heavy object such as a thick rope. His beatings lasted for about two hours, after which the applicant wrote a statement of “surrender and confession” as was dictated to him by the officers. He then gave self-incriminating statements to an investigator, as one of the police officers (who had threatened him with more violence if he complained) had been in the room. For the same reason he denied that he had been ill-treated to his mother who had been allowed to see him in the room where he had been interviewed. His mother asked him to take off his clothes. He did not display any injuries on the upper part of his body. He did not take off his pants. At around 11   p.m. he and his mother left the police station and he told her about his ill-treatment. 7.     According to a record drawn up by the police, at 6 p.m. on 28   August 2008 the applicant gave a statement of “surrender and confession” in respect of a physical assault. 8.     According to a record drawn up by an investigator from the investigation unit of the Zheleznodorozhniy district police department, from 8.30 p.m. to 9.30 p.m. on 28 August 2008 at the Zheleznodorozhniy police station the applicant was questioned as a witness in the criminal case concerning a physical assault in the presence of a lawyer, N.Ya. 9.     According to the applicant’s mother’s statements of 12   September 2008 to an investigator from the investigative committee for the Zheleznodorozhniy district at the Ulyanovsk regional prosecutor’s office (“Zheleznodorozhniy district investigative committee”), after returning home from the police station on 28   August 2008 she saw numerous bruises on the applicant’s legs and handcuff marks on his wrists. 10.     At 10.45 a.m. on 29 August 2008 the applicant was examined at a traumatology unit. He was diagnosed with contusions of both hips, the lower left leg and the lumber region. He complained of pain in those areas and explained that on 28 August 2008 he had been physically assaulted by police officers at the Zheleznodorozhniy police station. 11.     According to a report on the applicant’s forensic medical examination carried out at 1.50 p.m. on 29 August 2008 at his request, the applicant complained of pain in his legs. He described his ill-treatment by police officers on 28   August   2008 (blows to the parietal region, the lumbar region and legs, and handcuffing behind the back). The applicant had two   bruises on the back of his right hip; a bruise on the back of his left hip; two abrasions on the lower left leg; a bruise on the front and inside of the left hip; hyperaemia of both wrists; and painfulness of the parietal region. The expert found that the applicant’s injuries had been caused by a hard, blunt object, possibly on 28   August 2008, in the circumstances described by him. 12.     On 23 April 2009 the same expert carried out another forensic medical examination in respect of the applicant’s injuries, this time on the basis of an investigator’s order of 5 February 2009 and the applicant’s medical records of 29   August 2008. The expert came to conclusions similar to those in his initial report. He also specified that the applicant’s injuries had been caused by no less than six blows, possibly as a result of being kicked and receiving blows with an object such as a thick rope, as alleged by the applicant. 13.     Following the applicant’s mother’s complaint, on 29   September 2008 the head of the Federal Security Service for the Ulyanovsk region found that their operative activity had indicated that on 28   August 2008 at the Zheleznodorozhniy police station two police officers (whose identity had been established) had beaten up the applicant in order to force him to confess to the crime, and that the elements of a crime under Article   286 of the Criminal Code (abuse of powers) had been present in their actions. That finding was communicated to the head of the Ulyanovsk regional investigative committee. refusals to open a criminal case against policemen 14.     On 30 August 2008 the applicant’s mother lodged a complaint against the police officers with the Zheleznodorozhniy district prosecutor’s office of Ulyanovsk, alleging the applicant’s ill-treatment. On 3 September 2008 the applicant lodged a similar complaint. 15.     Investigators from the Zheleznodorozhniy district investigative committee carried out a pre-investigation inquiry into the applicant’s alleged ill-treatment by police. On the dates specified below, and in accordance with Article   24   §   1   (2) of the Code of Criminal Procedure, they issued refusals to initiate criminal proceedings against the police officers, because none of the elements of a crime under Article 286 of the Criminal Code were present in respect of their actions. The refusals were systematically overruled by the higher authority within the investigative committee as unsubstantiated and/or unlawful, and the investigation authorities were ordered to carry out additional inquiries: Refusal no. issued on: overruled on: (i) 22 September 2008 27 October 2008 (ii) 7 November 2008 30 November 2008 (iii) 10 December 2008 24 December 2008 (iv) 3 January 2009 30 January 2009 (v) 9 February 2009 13 March 2009 (vi) 23 March 2009 1 April 2009 (vii) 11 April 2009 20 April 2009 (viii) 24 April 2009 5 May 2009 (ix) 15 May 2009     16.     On 29 April 2009 the Ulyanovsk regional prosecutor’s office found that the pre-investigation inquiry had been stalled and incomplete and had failed to establish the important circumstances of the applicant’s alleged ill ‑ treatment, and that there had been no follow-up to the operative activity carried out by the FSB (see paragraph 13 above) and to the previous requests of the prosecutor’s office to correct the flaws of the inquiry. The prosecutor’s office again sent an official request to the head of the Ulyanovsk regional investigative committee, requesting that the violations be eliminated without delay and those responsible be subjected to disciplinary proceedings. 17.     The police officers, interviewed during the inquiry, denied subjecting the applicant to any ill-treatment. An investigator stated that on 28 August 2008 she had been assigned a criminal case into a physical assault. Four police officers had carried out operational-search activities at her request and established the applicant’s involvement in the crime. The applicant had given a statement of surrender and confession, after which she had invited a lawyer on duty, N.Ya., and questioned him. During his questioning she had not received any complaints from the applicant against the police officers and had not noticed any injuries on him. In her presence the applicant’s mother had lifted the applicant’s t-shirt. He had not displayed any injuries. Lawyer N.Ya. stated that she had not seen any injuries on the applicant on 28   August 2008. 18.     Following the applicant’s complaint and ensuing disciplinary proceedings against N.Ya., on 4 May 2009 the Council of the Ulyanovsk Regional Bar Association found that N.Ya. had provided the applicant with poor legal assistance during his interrogation by an investigator on 28   August 2008, failing to hold a meeting with the applicant and to provide him with legal advice before his interrogation. Moreover, she had breached the law and the Attorney Professional Ethics Code by giving statements to the investigative committee about the circumstances of the applicant’s interrogation. Those statements had served as one of the grounds for the decision not to open a criminal case against the police officers whose actions the applicant had challenged. They had also contributed to the negative assessment of the applicant’s revocation of his previous self ‑ incriminating statements. The Council held that the lawyer should be reprimanded. 19.     In the most recent refusal to open a criminal case against the police officers dated 15 May 2009 an investigator found that the applicant’s allegations of ill-treatment had not been confirmed, and that his injuries (as recorded on 29   August 2008) were unrelated to the police officers’ activities and investigative measures carried out in relation to the applicant. Criminal proceedings against the applicant 20.     On 9 July 2009 the Zheleznodorozhniy District Court of Ulyanovsk convicted the applicant of a physical assault and sentenced him to five and a half years’ imprisonment. 21.     At trial the applicant denied his guilt and gave statements about his alleged ill-treatment by police officers on 28 August 2008, as a result of which he had written his statement of “surrender and confession” as had been dictated by them. His lawyer argued that the record of the applicant’s statement should be excluded as inadmissible evidence. The court, however, relied on that statement in finding the applicant guilty. Having heard the police officers denying any violence against the applicant, it concluded that his allegations of police ill-treatment had not been confirmed. 22.     The applicant’s lawyer also argued that statements against the applicant by two witnesses (on 11 and 23 December 2008) had been extracted under duress by police officers (who had allegedly given electric shocks to one witness through wires attached to his fingers, and to the other witness in the area of the genitals while he was handcuffed) and were therefore inadmissible evidence. The lawyer referred to a medical record, issued by the traumatology unit of Ulyanovsk Town Hospital on 23   December 2008, according to which the witness was diagnosed with a burn on his genitals shortly after being questioned by the police. 23.     The court examined statements by the two witnesses that at the preliminary investigation they had incriminated the applicant as a result of their ill-treatment by police officers. One of those witnesses also testified about witnessing the violence suffered by the applicant at the police station on 28 August 2008. Relying on the statements by the police officers denying any wrongdoing, the court found that the use of violence against the witnesses had not been confirmed. 24.     The applicant reiterated the arguments about the inadmissibility of his statement of “surrender and confession” and the witness statements in his appeal against the judgment of the trial court. 25.     On 19 August 2009 the Ulyanovsk Regional Court partly amended the judgment on appeal in the part concerning a civil claim against the applicant. It upheld the judgment in the remaining part fully endorsing the trial court’s findings in respect of the applicant’s arguments. THE LAW ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 26.     The applicant complained that he had been subjected to ill-treatment by police officers and that the State had failed to conduct an effective investigation into his complaint. 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.” 27.     The Government contested the applicant’s claim, relying on the results of the inquiry carried out by the domestic authorities. They stated that the applicant’s allegations of his ill-treatment by police had not been convincing and had not been supported by evidence. Therefore there had been no need to open a criminal case into his complaint. Admissibility 28.     The Government noted that the applicant had not availed himself of a court appeal against the refusals to institute criminal proceedings. 29.     The applicant stated that a court appeal would not have led to the opening of a criminal case against the police officers which could only be ordered by an investigator. A court had no authority to order an investigator to open a criminal case, or to carry out specific activities. A court appeal could only lead to the annulment of a refusal to open a criminal case, which the investigating authority had done on its own many times. 30.     The Court notes that between October 2008 and May 2009 the refusals to open a criminal case into the applicant’s alleged ill‑treatment were set aside eight times. In these circumstances, the Court is not convinced that an appeal to a court, which could only have had the same effect, would have offered the applicant any redress. It considers, therefore, that an appeal in the particular circumstances of the present case would have been devoid of any purpose (see, mutatis mutandis , Nechto v. Russia , no.   24893/05, §§ 80-82, 24 January 2012, and Devyatkin v. Russia , no.   40384/06, § 30, 24 October 2017). 31.     The Court notes that this 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. Merits 32.     After a period of time spent in police custody on 28 August 2008 the applicant was found to have sustained bodily injuries confirmed by medical evidence. The injuries are consistent with the applicant’s allegations, in particular of being handcuffed and delivered blows to the legs by kicking and using a heavy object such as a thick rope. His allegations are supported by the conclusions of the forensic medical expert (see paragraphs 11-12 above) and the witness statements (see paragraphs 9 and 23 above). 33.     The above factors are 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 allegations of ill-treatment in police custody were credible. 34.     The Court further observes that the applicant’s allegations of his injuries having been the result of the ill-treatment by police officers were dismissed by the investigating authority on the basis of the denial of the applicant’s ill-treatment by the police officers. It offered no explanation in respect of the applicant’s injuries. Its flawed inquiry was criticised by the prosecutor’s office without, however, leading to any improvement (see paragraph 16 above). 35.     The investigating authority based its findings on the results of the pre-investigation inquiry, which is the initial stage in dealing with a criminal complaint under Russian law and should normally be followed by the opening of a criminal case and the carrying out of an investigation if the information gathered has disclosed elements of a criminal offence (see Lyapin v. Russia , no. 46956/09, § 129, 24 July 2014). The mere carrying out of a pre-investigation inquiry under Article 144 of the Code of Criminal Procedure of the Russian Federation is insufficient if the authorities are to comply with the standards established under Article 3 of the Convention for an effective investigation into credible allegations of ill-treatment in police custody. It is incumbent on the authorities to institute criminal proceedings and conduct a proper criminal investigation in which the whole range of investigative measures may be carried out, including the questioning of witnesses, confrontations and identification parades (ibid., §§ 132-37). 36.     The Court has no reason to hold otherwise in the present case. It finds that the investigating authority failed to carry out an effective investigation into the applicant’s allegations of police ill-treatment, as required by Article 3 of the Convention. 37.     Given that the Government’s denial of the State’s responsibility for the applicant’s injuries was based on the results of the superficial domestic pre-investigation inquiries, which fall short of the requirements of Article   3 of the Convention, the Court holds that the Government have failed to discharge their burden of proof and produce evidence capable of casting doubt on the applicant’s account of events, which it therefore finds established (see Olisov and Others v. Russia , nos. 10825/09 and 2 others, §§   83-85, 2 May 2017, and Ksenz and Others v. Russia , nos.   45044/06 and   5 others, §§ 102-04, 12   December 2017). 38.     Having regard to the severity of the applicant’s treatment and his injuries, the Court finds that the applicant was subjected to inhuman and degrading treatment at the hands of the police (see Gäfgen v.   Germany [GC], no. 22978/05, § 89, ECHR 2010). 39.     In view of the foregoing, there has been a violation of Article 3 of the Convention under its substantive and procedural limbs. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 40.     The applicant complained that the criminal proceedings against him had been unfair on account of the use of his statement of “surrender and confession” at his trial. He also complained about the use in evidence of the statements by the witnesses allegedly obtained as a result of duress by the police. He relied on Article 6 of the Convention, which reads in its relevant part as follows: “1.     In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 41.     The Government argued that the statement of “surrender and confession” had not been the sole evidence of the applicant’s guilt which had also been confirmed by other evidence. Admissibility 42.     The Government submitted that the applicant had not lodged a motion for exclusion of his statement of “surrender and confession” from evidence before the trial court, failing to exhaust domestic remedies. 43.     The applicant disagreed, noting that he had argued before the trial court and in his appeal against its judgment that his statement of “surrender and confession” should be excluded from evidence. 44.     The Court notes that the applicant raised his complaint before the trial and appeal courts. It cannot therefore be said that the national courts were not afforded the opportunity to prevent or redress the alleged violation of the Convention. The Government’s objection should be dismissed. 45.     The Court considers that this 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. Merits 46.     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 [GC], cited above, §§ 166 and 173, and, among many other authorities, Turbylev v. Russia , no.   4722/09, § 90, 6   October 2015). 47.     The Court has found that the applicant was subjected to inhuman and degrading treatment in police custody. It observes that the applicant’s confession statements formed part of the evidence adduced against him. The trial court did not find them inadmissible and relied on them when finding him guilty and convicting him. The court had to carry out its own independent assessment of the relevant medical, witness and other evidence with a view to ascertaining whether there were reasons to exclude from evidence those statements, allegedly “tainted” by a violation of Article 3 of the Convention, so as to ensure the fairness of the trial. Instead, it relied on the statements of the police officers who had allegedly ill-treated the applicant. This lack of a careful assessment of the quality of the impugned evidence and the circumstances in which it was obtained was not remedied on appeal. 48.     In such circumstances, the Court concludes that, regardless of the impact the applicant’s statements obtained under duress had on the outcome of the criminal proceedings against him, their use in evidence rendered the applicant’s trial unfair. This finding makes it unnecessary to examine the applicant’s other complaints that the use in evidence of the statements of the witnesses had made his trial unfair. 49.     The foregoing considerations are sufficient for the Court to conclude that there has been a violation of Article 6 § 1 of the Convention in the present case. ALLEGED VIOLATION of article 13 OF THE CONVENTION 50.     Lastly, the applicant complained that there had been no effective investigation into his complaint of police ill-treatment by the authorities which had not opened a criminal case and had not carried out a proper investigation. He relied on Article 13 which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 51.     The Government contested that argument. 52.     The Court notes that this complaint is linked to the issue raised under the procedural aspect of Article 3 of the Convention and must therefore likewise be declared admissible. 53.     In view of its finding of a violation of Article 3 under its procedural head, the Court does not find it necessary to examine separately, under Article 13 of the Convention, the applicant’s complaint concerning the lack of an effective investigation into his ill ‑ treatment by police. APPLICATION OF ARTICLE   41 OF THE CONVENTION 54.     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.” 55.     The applicant claimed 75,000 euros (EUR) in respect of non ‑ pecuniary damage, describing the devastating effect his beatings by police officers, his self-incrimination and the policemen’s impunity had had on his life. The applicant claimed EUR 2,500 in respect of costs and expenses for legal assistance provided to him by Ms Gorash in the proceedings before the Court, to be paid directly to her practice’s bank account. 56.     The Government stated that Article 41 of the Convention should be applied in accordance with the Court’s case-law. 57.     The Court awards the applicant EUR 26,000 in respect of non ‑ pecuniary damage, plus any tax that may be chargeable. It also awards him the amount claimed in respect of costs and expenses, plus any tax that may be chargeable to the applicant, to be paid into his representative’s bank account as requested by the applicant. 58.     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, Declares the application admissible; Holds that there has been a violation of Article 3 of the Convention under its substantive and procedural limbs; Holds that there has been a violation of Article 6 § 1 of the Convention; Holds that there is no need to examine separately the complaint under Article   13 of the Convention; Holds (a)   that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i)   EUR 26,000 (twenty-six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)   EUR 2,500 (two thousand and five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid into his representative’s bank account; (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; Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 11 May 2021, pursuant to Rule   77   §§   2 and 3 of the Rules of Court. Olga Chernishova   Darian Pavli Deputy Registrar   President