CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 20 juillet 2023

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RUSSIA (Applications nos. 15492/19 and 9 others – see appended list)             JUDGMENT   STRASBOURG 20 July 2023   This judgment is final but it may be subject to editorial revision. In the case of Dolgushin and Others v. Russia, The European Court of Human Rights (First Section), sitting as a Committee composed of:   Lətif Hüseynov , President ,   Ivana Jelić,   Erik Wennerström , judges , and Viktoriya Maradudina, Acting Deputy Section Registrar, Having deliberated in private on 29 June 2023, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in applications against Russia lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table 2.     The Russian Government (“the Government”) were given notice of the applications. THE FACTS 3.     The list of applicants and the relevant details of the applications are set out in the appended table. 4.     The applicants complained of the torture or inhuman or degrading treatment (for further details see the attached table). Some applicants also raised other complaints under the provisions of the Convention. THE LAW JOINDER OF THE APPLICATIONS 5.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. JURISDICTION 6.     The Court observes that the facts giving rise to the alleged violations of the Convention occurred prior to 16 September 2022, the date on which the Russian Federation ceased to be a party to the Convention. The Court therefore decides that it has jurisdiction to examine the present applications (see Fedotova and Others v. Russia [GC], nos.   40792/10 and 2   others, §§   68 ‑ 73, 17   January 2023). ALLEGED VIOLATION OF ARTICLE 3 of the Convention 7.     The applicants complained of the torture or inhuman or degrading treatment. They relied, expressly or in substance, on Article 3 of the Convention. 8.     The Court held in   Bouyid   v. Belgium   ([GC], no.   23380/09, §§   81-90 and 114-23, ECHR 2015), that presumptions of fact was in favour of applicants claiming   to be victims of a violation of Article   3 of the Convention, if they demonstrate that the alleged ill-treatment was inflicted when they were under the control of the police or a similar authority. Moreover, in the context of detainees, the Court has emphasised that persons in detention are in a vulnerable position and that the authorities have a duty to protect their physical well-being and that any recourse to physical force which has not been made strictly necessary by the applicants’ own conduct diminishes human dignity and in principle constitutes a violation of the right enshrined in Article 3 of the Convention (see   Sheydayev v. Russia , no.   65859/01, § 59, 7 December 2006). The burden of proof rests on the Government to show that the use of force, which resulted in the applicants’ injuries, was not excessive (see, for example,   Dzwonkowski v.   Poland , no.   46702/99, § 51, 12 April 2007, and compare with   Kursish and   Others v.   Russia   [Committee], nos.   62003/08   and 5 others, §   84, 5 July 2022). 9.     Furthermore, in the cases of   Lyapin v. Russia,   no.   46956/09, §§   128 ‑ 40, 24   July 2014 and   Samesov v. Russia,   no.   57269/14, §§ 54-63, 20   November 2018, as well as in   Kuchta and Mętel v. Poland , no.   76813/16, §   88, 2 September 2021, the Court has already found, in particular, that   the authorities’   refusal to open a fully-fledged criminal investigation into the credible allegations of ill-treatment, as well as the lack of assessment of the necessity and proportionality of the use of lawful force by the police were indicative of the State’s failure to fulfil its procedural obligation under Article   3 of the Convention. 10.     The Court finds the complaints admissible and observes that there has been a violation of the substantive and procedural limbs of Article   3 of the Convention in respect of all the applicants, with the exception of the applicant in application no.   31362/21, in respect of whom it finds only a violation of the procedural limb of that provision. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 11.     In applications nos.   45092/21, 45103/21 and 52379/21 the applicants submitted other complaints which also raised issues under the Convention, in the light of the well ‑ established case-law of the Court (see the attached table). These complaints are not manifestly ill-founded within the meaning of Article   35 §   3   (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in   Idalov v. Russia [GC], no.   5826/03, § 148, 22 May 2012. REMAINING COMPLAINTS 12.     In addition, the applicants in applications nos.   15492/19, 8101/21, 31362/21, 52379/21, 61637/21 and 12650/22 also submitted complaints under Article 13 of the Convention. These complaints are not manifestly ill ‑ founded within the meaning of Article   35   §   3   (a) of the Convention, nor are they inadmissible on any other ground. They must therefore be declared admissible. Having examined all the material before it, the Court concludes that there is no need to examine them separately in the light of its findings under Article 3 of the Convention (see   Aleksandr Andreyev v. Russia , no.   2281/06, §   71, 23   February 2016, and   Leonid Petrov v. Russia , no.   52783/08, §   86, 11   October 2016). APPLICATION OF ARTICLE   41 OF THE CONVENTION 13.     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.” 14.     Having regard to the documents in its possession and to its case ‑ law (see   Ksenz and Others v. Russia , nos. 45044/06 and 5 others, §§ 117 and 120, 12   December 2017; and, for similar situations, Zagaynov and Others v.   Russia [Committee],   nos.   5666/07   and   4   others, 15   June 2021, and Dauberkov and Others v. Russia   [Committee], nos.   60844/11   and 2 others, 22 March 2022), the Court considers it appropriate to award the sums indicated in the appended table. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Decides to join the applications; Holds that it has jurisdiction to deal with the applicants’ complaints as they relate to facts that took place before 16   September 2022; Declares the applications admissible; Holds that there have been a violation of the procedural limb of Article 3 of the Convention in application no. 31362/21 and a breach of the substantive and procedural limbs of Article   3 of the Convention in respect of all the remaining applicants related to their complaints about torture and inhuman or degrading treatment (see appended table); Holds that there has been a violation of the Convention as regards the other complaints raised under the well-established case-law of the Court (see appended table); Holds that it is not necessary to examine separately the complaints under Article 13 of the Convention; Holds (a)   that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 20 July 2023, pursuant to Rule   77   §§   2 and   3 of the Rules of Court.   Viktoriya Maradudina   Lətif Hüseynov   Acting Deputy Registrar   President       APPENDIX List of applications raising complaints under Article 3 of the Convention (torture or inhuman or degrading treatment) No. Application no. Date of introduction Applicant’s name Year of birth Representative’s name and location Factual information Medical evidence of ill-treatment Date of first complaint Decision issued in response to complaint of ill-treatment Decision under Article 125 of the CCrP Appeal decision Information relating to conviction Other complaints under well-established case-law Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros) [1]     15492/19 12/03/2019 Yevgeniy Aleksandrovich DOLGUSHIN 1984 Vanslova Yekaterina Mikhaylovna Nizhniy Novgorod On 25/05/2016 the applicant was arrested and taken to the Sovetskiy district police station in Chelyabinsk. Between 25/05/2016 and 27/05/2016 at least ten officers beat him up to make him confess to a robbery. On 26/05/2016 the applicant was taken by the police to the hospital with injuries, then returned to the police station, from where on 27/05/2016 he was urgently hospitalised. Medical certificate of 22/08/2016 issued by the emergency trauma unit of the Chelyabinsk public hospital no. 2: on 26/05/2016 the applicant had injuries of the feet, contortion of the right wrist, injuries and haematomas of the face, body, arms and legs. Medical certificate of 07/07/2016 issued by the prison hospital no. 3 in Chelyabinsk: the applicant had been urgently hospitalised on 27/05/2016 from the police station with closed fracture of the nose, multiple injuries on the face, neck, back, arms and legs; traumatic neuropathy of the median and ulnar nerves. Forensic expert report no. 6009 of 16/08/2016 issued by the Chelyabinsk Region Forensic Bureau: closed fracture of the nose, caused by a hard blunt object; pseudo luxation of the right wrist, multiple haematomas and bruises on the head, neck, back, thorax, arms and legs, caused by hard blunt objects.   On 30/05/2016 complaint at the prison hospital no. 3 of Chelyabinsk in the form of "explanation" / Three refusals to open a criminal case, issued between 13/07/2016 and 19/01/2018: according to investigators, the applicant had injured himself by falling down several times and breaking through the bushes during his attempt to abscond from the police.   On 05/06/2018 the Sovetskiy District Court in Chelyabinsk rejected the applicant’ appeal against the last refusal / upheld on 13/09/2018 by the Chelyabinsk Regional Court. On 30/10/2017 the Sovetskiy District Court in Chelyabinsk convicted the applicant of 18 counts of robbery/On 13/03/2018 the conviction was upheld by the Chelyabinsk Regional Court.   52,000     59395/19 05/11/2019 Vitaliy Leonidovich LOBODA 1982 Lepekhin Andrey Gennadyevich Chelyabinsk On 05/05/2018 the applicant, a political activist, was arrested during a manifestation in Chelyabinsk and taken to the Sovetskiy district police station where he was insulted by one of the officers. In response to the applicant’s attempt to video record the incident, an officer broke the applicant’s finger while trying to reach the phone in the applicant’s pocket. The applicant called the ambulance which diagnosed him with a bruising of right little finger. The applicant was released in the evening and immediately went to hospital No. 1 in Chelyabinsk. The hospital transmitted the information about the injury to the police. Excerpt from the log of the Chelyabinsk emergency care station of 05/05/2018: bruise on the right pinkie. Medical card No. 4862927290 of 06/05/2018: closed fracture of the finger. Forensic medical examination act no. 5066 of 19/07/2019: closed fracture of the finger that could have been caused by a hard blunt object on/around 05/05/2018. On 06/05/2018 the doctor who examined the applicant called the Sovetskiy police department in Chelyabinsk and reported that the applicant had been ill ‑ treated by unknown persons at that police station. On the same day the applicant lodged the ill-treatment complaint with the same police department / Refusals to open a criminal case on 04/07/2018 and 08/02/2019. On 26/03/2019 the Sovetskiy District Court in Chelyabinsk dismissed the applicant’s appeal against the last refusal to open a criminal case/on 07/06/2019 the Chelyabinsk Regional Court upheld that decision.     26,000     61438/19 13/11/2019 Timofey Sergeyevich ZHVIKOV 1987 Dermeneva Viktoriya Yevgenyevna Krasnoyarsk The applicant was detained in remand prison IZ-1 in Krasnoyarsk pending trial on charges of rape and murder. At about 6 p.m. on 15/11/2018 three prison guards took him out of his cell, kicked him on his right leg, chest and face, gave him several electric shocks and shaved his head pressuring him to confess to the crime at the upcoming trial. Medical certificate no. 228 of 20/11/2018 by an ambulance doctor: bruising of the right hip. Photographs taken by the applicant’s defence counsel on 20/11/2018: bruises on the right hip and both knees. Forensic medical report no. 3374 of 10/04/2019: the bruising could have been caused by a hard blunt object; it was impossible to establish whether the bruising could have been caused by a fall as the expert had been provided with insufficient information. Complaint at the trial hearing on 20/11/2018 / Refusals to open a criminal case on 09/01/2019, 20/02/2019, 01/04/2019, 15/05/2019, 08/07/2019 and 16/09/2019. On 20/08/2019 the Zheleznodorozhnyy District Court rejected the applicant’s complaint as the refusal of 08/07/2019 had been overruled by the investigators’ superiors on 16/08/2019 / No appeal. Acquitted on 26/12/2018 by a jury trial at the Krasnoyarsk Regional Court/upheld on 06/06/2019 by the Criminal Division of the Krasnoyarsk Regional Court.   26,000     8101/21 23/12/2020 Ruslan Akteberisovich BADARTDINOV 1973 Krasikov Vladimir Vladimirovich Samara On 02/04/2019 officers of the Federal Security Service (the FSB) took the applicant to their headquarters in Samara for questioning on suspicion of his involvement in a terrorism-related crime. There they threatened him and hit him on the head. Then the applicant was taken to the Samara Regional Investigative Committee for official questioning, during which he stated that earlier that day he had been beaten by the FSB officers. On 02/04/2019 the applicant was released. Between 02/04/2019 and 08/04/2019 the applicant’s state of health deteriorated, and he went to the hospital, where he was diagnosed with a brain concussion. The hospital transmitted that information to the police.   Medical card no. 287 of 08/04/2019 by Samara hospital no.10: brain concussion and bruises on the head. Medical examination act no. C/89-ж of 01/07/2019 by the Samara Regional Forensic Bureau: brain concussion and bruises on the head that could have been caused by a hard blunt object up to eight days prior to the first examination carried out on 08/04/2019. On 08/04/2019 the applicant complained to police department no. 6 in Samara seeking to institute criminal proceedings against the FSB officers. On 04/06/2019 the applicant submitted the same complaint to the Military Investigative Committee in Samara / Refusals to open a criminal case on 03/07/2019 and 16/08/2019: the investigators found that the applicant’s injuries could have occurred prior to 02/04/2019. On 24/07/2020 the Military Garrison Court in Samara dismissed the applicant’s appeal against the last refusal to open a criminal case. On 24/09/2020 the Central District Military Court in Samara upheld that decision.     26,000     31362/21 02/08/2021 Sergey Sergeyevich BELOUSOV 1980     On 10/10/2016 the applicant was arrested by the officers from police unit no.11 in Krasnoyarsk, who beat him in the chest, face and arms and urged to confess to a drug offence. Then he was taken to the police station, where an officer tied a plastic bag around the applicant’s head causing him to lose consciousness. After that the applicant was handcuffed to a radiator for twelve hours. Certificate no. 45199 of 12/10/2016 by Emergency Hospital of Krasnoyarsk: fracture of the 10th and 11th ribs on the left side and certificate no. 45501 of 14/10/2016 by the same hospital: fracture of the left wrist, received according to the patient on 07/10/2016. Forensic expert report no. 4367 of 27/04/2017 (on 14/10/2016 the applicant had a fracture of the left wrist). Forensic expert report no. 6125 of 16/06/2017 (on 12/10/2016 the applicant had a consolidated - that is ancient and healed - fracture of the 7th, 8th, and 9ths ribs on the left side). On 26/10/2016 complaint to the Sovetskiy District Investigative Committee in Krasnoyarsk / Numerous refusals to open a criminal case, the first issued on 09/11/2016, the last on 14/09/2019. The investigators found that the injuries had been received prior to the arrest. The refusals relied on: (i) statements by the applicant and the arresting officers; (ii) the medical certificates and forensic expert reports; (iii) statements by the applicant’s brother that the applicant had had a fight in September 2016 and had complained of a pain in his ribs thereafter; (iv) statements by the doctor who had examined the applicant on 12/10/2016 and of the forensic experts who stated that the rib fracture had already healed on 12/10/2016 and could not therefore have been received on 10/10/2016; the discrepancy between the medical certificate and the forensic expert report as to which ribs had been fractured were due to a mistake by the examining doctor in reading the X-ray; (v) the statement by the applicant to the examining doctor on 14/10/2016 that the wrist fracture had been received on 07/10/2016 as a result of a fall; (vi) information that in March 2018 the police’ failure to locate Ms F., the applicant’s girlfriend and a witness to his arrest. On 13/03/2020 the Sovetskiy District Court of Krasnoyarsk rejected the complaint against the last refusal as unsubstantiated/ upheld on appeal on 01/07/2021 by the Krasnoyarsk Regional Court. Convicted of drug dealing on 30/11/2017 by the Sovetskiy District Court of Krasnoyarsk/ upheld on appeal on 07/06/2018 by the Krasnoyarsk Regional Court   12,500     45092/21 13/09/2021 Yuriy Vladimirovich SENISHIN 1969 Artyushkina Olesya Anatolyevna Moscow On 28/06/2021 the applicant was detained together with three persons on suspicion of kidnapping. On 29/06/2021 the Semilukskiy District Court of the Voronezh Region sentenced him to 15 days of administrative detention for petty hooliganism. Between 30/06/2021 and 01/07/2021 the applicant was ill-treated by the FBS officers, who subjected him to electric shocks, beatings, threats of rape with a baton, placement in stress positions and strangulation with a plastic bag to make him confess to kidnapping. On 13/07/2021 the applicant was also convicted of disobeying a lawful order of a police officer and sentenced to another 15 days of administrative detention. He was then on 27/07/2021 charged with kidnapping and put in pre-trial detention in remand prison SIZO-3 in Voronezh.   The applicant alleges that in violation of the procedure his injuries were not documented by the medical personnel of various institutions. Forensic report of 05/10/2021: several scarring on the applicant’s body and the wrists, the origin of which was not possible to establish. On 17/08/2021 the applicant lodged an ill treatment complaint with the Military Department of the Investigative Committee. On the same day, the applicant’s lawyer lodged an online complaint with the Military Investigative Committee/On 06/10/2021 refusal to open a criminal case as the applicant’s complaint was unsubstantiated. On 13/12/2021 the Voronezh Military Garrison Court rejected the appeal against the refusal/ On 02/03/2022 the Western Circuit Military Court upheld on appeal the refusal to open a criminal case.   Art. 5 (3) - excessive length of pre-trial detention - 27/07/2021 – pending as of 02/03/2022, courts authorising detention and its extensions: Leninskiy District Court in Voronezh/ upheld by the Voronezh Regional Court: Specific defects: use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice; failure to examine the possibility of applying other measures of restraint; fragility of the reasons employed by the courts 28,000     45103/21 28/02/2022 Aleksandr Sergeyevich TSVIRKUN 1992 Shukhardin Valeriy Vladimirovich Moscow On 28/06/2021 the applicant was detained together with two other individuals on suspicion of kidnapping, and, on the following day, the local court sentenced him to 15 days of administrative detention for petty hooliganism Between 30/06/2021 and 02/07/2021 the applicant was ill-treated by the FSB officers who subjected him to electric shocks, beatings, placement in stress positions and strangulation with a plastic bag to make him confess to the crime. Forensic medical examination act no. 4901.21 of 05/10/2021 (conducted on 23/09/2021): a scar on the outer surface of the right forearm, a scar on the dorsum of the right-hand area of pink skin with a purple tint on the inner surface of the right ankle joint. It is not possible to determine the type of the weapon and how the injuries were caused as by the time of the expert examination, the injuries healed, having lost their morphological features.       On 05/08/2021 complaint to the Military Department of the Investigative Committee / Refusal to open a criminal case of 06/10/2021. On 13/12/2021 Garrison Military Court in Voronezh rejected the applicant’s complaint against the refusal / On 02/03/2022 Second Western Circuit Military Court No information Art. 5 (3) - excessive length of pre-trial detention - 27/07/2021 - pending as of 02/03/2022; courts authorising detention and its extensions: Leninskiy District Court of Voronezh, Voronezh Regional Court; Specific defects: use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice; fragility and repetitiveness of the reasoning employed by the courts as the case progressed; failure to examine the possibility of applying other measures of restraint. 28,000     52379/21 24/03/2022 Dmitriy Vladimirovich KAMYNIN 1984 Ludlow Nayana Dzhon Moscow On 10/12/2020 the applicant was arrested on suspicion of having drugs on him and was taken to a police station where he was beaten by police officers. Hospital medical report on 11/12/2020 confirming bruises on the soft tissue of the face.   On 11/12/2020 and then on 15/12/2020 the applicant was examined by two paramedics at the police station who confirmed bruises on the head and the soft tissue of his face. On 29/03/2021 complaint to the investigative committee/The inquiry into the incident was carried out by two investigative departments – in the Central District and the Zavodskoy District in Kemerovo.   On 13/09/2021 the Central District investigative department refused to open a criminal case/On 24/06/2021 and 15/10/2021 the Zavodskoy District investigative department also refused to open a criminal case. On 14/04/2022 the Kemerovo Regional Court rejected the applicant’s complaint challenging the refusal of the Central District investigative department.   The outcome of the proceedings regarding the refusal of the Zavodskoy District investigative department is unknown. On 04/01/2022 all drug charges were dropped. Art. 5 (3) - excessive length of pre-trial detention - detention between 15/12/2020 and 04/01/2022 - fragility and repetitiveness of the reasons employed by the courts as the case progressed; failure to examine the possibility of applying other measures of restraint     28,000     61637/21 02/12/2021 Artur Gendrikovich APOZYAN 1986 Dyundin Vyacheslav Alekseyevich Orsk On 04/03/2020 the applicant was arrested by three plainclothes police officers who took him to a police station. There the applicant was handcuffed, his wrists covered with strips of cloth underneath the handcuffs to minimise bruising. Then the arresting officers and one of their colleagues pulled a plastic bag over the applicant’s head, put him on the floor on the stomach, tied his wrists handcuffed behind the back to his ankles and threatened to kill him causing the applicant to lose consciousness several times. The ill-treatment was administered with the view of obtaining confession. Medical examination report by the nurse on 06/03/2020 at remand prison SIZO-2 in Orsk: stretching of the articular capsule of the right shoulder joint and subconjunctival bleeding in both eyes. Expert examination on 17/04/2020 by the Orenburg Region Forensic Bureau: injury of the soft tissue of the right shoulder joint caused by a blunt trauma and subconjunctival bleeding in both eyes. 1) On 11/03/2020 complaint to the Orsk Investigative Committee / Refusals to open a criminal case of 20/03/2020, 21/05/2020, 03/06/2020, 28/09/2020, 07/10/2020 overruled by the investigators’ superiors, last refusal - on 04/03/2021.   2) On 06/03/2020 to the judge sitting on a measure of restraint hearing/ The judge sent a report of a crime to the investigators.   3) On 07/03/2020 report of the warden of remand prison SIZO-2 to the head of the Orsk Investigative committee/ No response. On 04/02/2021 the Sovetskiy District Court in Orsk refused to examine the complaint as the refusal of 07/10/2020 had been overruled by the investigators’ superiors on 25/01/2021. On 04/06/2021 the Sovetskiy District Court in Orsk dismissed the complaint against the refusal of 04/03/2021/The decision was upheld on 06/08/2021 by the Orenburg Regional Court. Convicted on 22/06/2020 by the Sovetskiy District Court in Orsk of sexual assault of a minor and sentenced to twelve years’ imprisonment.   26,000   12650/22 04/02/2022 Oleg Vladimirovich POLYUSHKIN 1979 Galiullina Diana Irikovna Ufa On the night of 05/04/2016 the applicant was arrested on suspicion of selling drugs and taken to police station no. 1 in Murmansk, where police officers banged his head against the wall and kicked him. At 9:01 a.m. on 05/04/2016, while he was at the police station, an ambulance was called for the applicant. The applicant remained in custody. Emergency medical call sheet no. 38689 of 05/04/2016: an unspecified injury. A witness, Ms M. saw the applicant at the police station covered in blood. On 15/02/2018 the applicant lodged the complaint with the Murmansk Investigative Committee in the Murmansk Region / between 17/03/2018 and 18/01/2021 nine refusals to open a criminal case; the last one on 18/02/2021. On 30/04/2021 the Oktyabrskiy District Court in Murmansk dismissed the applicant’s appeal against the last refusal to open a criminal case/On 05/08/2021 the Murmansk Regional Court upheld that decision. On 03/11/2016 the applicant was convicted of selling drugs.   26,000     [1] Plus any tax that may be chargeable to the applicants.