CEDH · CASELAW;CLIN;ENG — 12 septembre 2023

.s3ABFC313 { font-size:10pt } .sD4B5322E { margin-top:12pt; margin-bottom:12pt; text-align:justify } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s97EB40D9 { margin-top:12pt; margin-bottom:14pt; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .s8B6C6D43 { margin-top:0pt; margin-bottom:0pt; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } Legal summary September 2023 Lapunov v. Russia - 28834/19 Judgment 12.9.2023 [Section III] Article 3 Torture Effective investigation Abduction, detention and torture of applicant by State agents in Chechnya on account of his sexual orientation against backdrop of 2017 “anti-gay purge” and lack of effective investigation: violation Article 14 Discrimination Abduction, detention and torture of applicant by State agents in Chechnya triggered by homophobic motives which were not investigated: violation Facts – The applicant, an openly homosexual person, was abducted, detained and ill-treated by State agents at the police headquarters in Chechnya between 16 and 28   March 2017. The applicant’s sister reported his disappearance to the Chechen police but no criminal case was opened. Upon the applicant’s request for assistance, the Committee against Torture conducted an independent inquiry. The applicant also met with the High Commissioner for Human Rights of the Russian Federation who requested an investigation of the incident. A pre-investigation was carried out but the investigators repeatedly refused to open a criminal case. The applicant unsuccessfully appealed. Law – Jurisdiction – As 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 had jurisdiction to examine the application. Article 3: (a) Substantive limb – (i) Whether the applicant was subjected to ill-treatment by State agents – The applicant had on several occasions and in different circumstances given a detailed and consistent account of his abduction and ill-treatment. His statements had been judged credible by numerous interlocutors, including Russian officials, NGO staff and foreign experts who had all considered an investigation had been called for. The forensic medical examination which he had undergone during the investigation, had found two scars on his hands which had been consistent with the allegations that his hands had been beaten with a PVC pipe during his detention. A psychological report had found that he suffered from PTSD as a result of the traumatic events. There were other elements lending credibility to the applicant’s account, such as the death of a person whom he had seen in detention in life-threatening circumstances, geolocation information from his mobile phone, and his own photographs of his injuries which had been taken shortly after his release. The applicant’s statements were corroborated by press and public bodies’ information about the so-called “anti-gay purge” of 2017 and identified the same patterns which could be seen in the treatment of other victims. The Court also took into account the general human rights situation in Chechnya, as well as various reports by international organisations on the rights of LGBTI persons in the Chechen Republic, referring specifically to the gross human rights violations committed against LGBTI persons in 2017, of which the applicant had claimed to have been a victim. Consequently, the Court found that the applicant had made out a prima facie claim that between 16 and 28   March 2017 he had been detained by the Chechen police and ill-treated. The Government had failed to provide convincing explanations capable of refuting those allegations and had thus failed to discharge their burden of proof to prove the contrary. In conclusion, the applicant had been detained and subjected to ill-treatment by State agents as alleged. (ii) Legal classification of the treatment – The applicant had provided a clear and detailed account of   his ill‑treatment between 16 and 28   March 2017 when he had been held incommunicado in the basement of the Chechen police headquarters solely on account of his homosexuality. He had been entirely vulnerable vis‑à‑vis the police officers who had beaten him up on several occasions by kicking and hitting him, sometimes with PVC pipes. Almost six months after the ill-treatment, the applicant had displayed injuries that had been recorded in the forensic medical examination, which had confirmed that they could have been inflicted on the applicant during the period in question and in circumstances consistent with his explanations. The applicant’s physical injuries had been aggravated by psychological violence. He had been forced to disclose the names of homosexual men to the police officers, had witnessed the beating of one of them and had been subjected to discriminatory remarks and insults by the perpetrators, who had threatened him with rape and sexual abuse. He also had been repeatedly forced to give details of his sexual encounters to various individuals, sometimes while being filmed and prior to his release he had been threatened with reprisals, to deter him from pursuing criminal proceedings. The combination of the above factors had aroused in the applicant feelings of fear, anguish and inferiority that persisted even after his release, manifesting themselves in “defined tremors” across his body in response to his memories of the events, persistent anxiety and PTSD. The treatment to which the applicant had been subjected, while entirely under the authorities’ control, had not been made strictly necessary by his conduct. Thus, the Court found that the ill‑treatment to which the applicant had been subjected by State agents between 16 and 28   March 2017 had amounted to torture. Conclusion : violation (unanimously). (b) Procedural limb – In its assessment the Court bore in mind the overall human rights context in Chechnya, in particular the situation with LGBTI persons. The Court had already established in Aslakhanova and Others v.   Russia that there had been a systemic failure to investigate unacknowledged detentions and disappearances perpetrated in Chechnya not only between 1999 and 2006, but also beyond that period. It had adjudicated on other cases of disappearances in that region after that judgment. In addition, the Committee of Ministers of the Council of Europe had reacted over the years and numerous reports on human rights violations in Chechnya have been prepared by international organisations and NGOs. Taking those factors into consideration, the Court recognised that the systemic problem extended not only to cases of disappearances, but more generally to the ineffectiveness of investigations in Chechnya carried out in respect of complaints under Articles   2 and 3 of the Convention involving allegations against State agents. In the present case, the investigators had failed to take important steps to secure evidence of the applicant’s abduction and ill-treatment. They had not identified and questioned the officers who had been on duty at the entrance to the Chechen police headquarters on the days when the applicant had been abducted and released. They had also failed to request geolocation information about the applicant’s mobile phone or those of his acquaintances which could have determined their location during the period in question and failed to examine an officer’s mobile phone which had allegedly been used to film the applicant. Most importantly, despite the applicant’s claim that he could identify the senior official in the Chechen police headquarters, the investigators had made no attempt to identify and question that person. In addition, the applicant had been denied protective measures, despite his numerous requests in that regard. The investigators had also asked the Chechen police to carry out operational-search activities and otherwise assist in the investigation. Witnesses had been questioned at the police headquarters and police officers had had access to the inquiry and taken part in witness identification and interviews, despite the applicant’s allegations that they had been directly involved in his ill‑treatment. The lack of independence of the investigation, in the context of the fear of reprisals which was prevalent in Chechnya, had been bound to compromise the inquiry’s results. The Court concluded that   the investigation into the applicant’s allegations had been   ineffective, as it had been plagued by   serious   shortcomings, had lacked independence and had failed to properly take into account and investigate possible discriminatory motives. Conclusion : violation (unanimously). Article 14 in conjunction with Article 3: The applicant had been subjected to targeted violence solely on account of his sexual orientation, which was an aggravating factor in the national criminal legislation and was characterised as a hate crime in the relevant international material. Therefore, the violation of his rights under the substantive limb of Article 3 had been motivated by homophobic attitudes. In the domestic proceedings it did not appear that any reasonable steps had been taken to examine the role which homophobic motives might have played in the applicant’s ill-treatment. The investigators had made no efforts to verify these allegations, other than asking witnesses whether they had been aware of the applicant’s sexual orientation and asking the Chechen police officers whether they had ill-treated homosexual men. Given the level of intolerance towards LGBTI persons in Chechen society, the Court doubted that such an approach could have yielded reliable answers. The repeated refusals to open a criminal case had further contained no assessment of the possible homophobic motives behind the ill-treatment and had provided no explanations as to the conclusion that no such motives had existed. Conclusion : violation (unanimously). The Court also found, unanimously, a violation of Article   5 on account of the applicant’s arbitrary detention by State agents during the above period which had had no legal grounds and had not been officially acknowledged. Article 41: EUR 52,000 in respect of non-pecuniary damage. (See also Aslakhanova and Others v.   Russia , 2944/06 et al., 18   December 2012, Legal Summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . For non-official translations into other languages click here .