CASE OF ABDULKADYROV AND DAKHTAYEV v. RUSSIA

THIRD SECTION

CASE OF ABDULKADYROV AND DAKHTAYEV v. RUSSIA

(Application no. 35061/04)

JUDGMENT

STRASBOURG

10 July 2018

FINAL

03/12/2018

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Abdulkadyrov and Dakhtayev v. Russia,

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

Helena Jäderblom, President,
Dmitry Dedov,
Pere Pastor Vilanova,
Alena Poláčková,
Georgios A. Serghides,
Jolien Schukking,
María Elósegui, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 19 June 2018,

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

PROCEDURE

1. The case originated in an application (no. 35061/04) 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 two Russian nationals, Mr Deni Aliyevich Abdulkadyrov and Mr Albek Akhmetovich Dakhtayev (“the applicants”), on 8 September 2004.

2. The applicants, who had been granted legal aid, were represented by Ms K. Moskalenko and Ms O. Preobrazhenskaya, lawyers practising in Moscow and Strasbourg respectively. The Russian Government (“the Government”) were 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.

3. The applicants complained, in particular, under Article 3 of the Convention that they had been subjected to ill-treatment in police custody and that no effective investigation into their complaints had been carried out. They further complained under Article 6 §§ 1 and 3 (d) of the Convention that their conviction had been based on evidence obtained as a result of the police ill-treatment, and that they had not been afforded an opportunity to examine prosecution witnesses at any stage of the proceedings. Lastly, the applicants complained under Article 8 of the Convention that they had been placed in penal facilities situated far from their home region.

4. On 21 October 2011 the complaint under Article 3 of the Convention was communicated to the Government.

5. Subsequently, on 27 January 2015 the complaints under Article 6 §§ 1 and 3 (d) and Article 8 of the Convention were communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicants were born in 1982 and 1983 respectively and are currently serving sentences in penal facilities in the Republic of Komi and the Murmansk Region respectively.

A. The applicants’ arrest and alleged ill-treatment

7. On 25 and 19 September 2002 respectively the applicants were arrested in Grozny in the Chechen Republic and taken to the Operational‑Search Division of the North Caucasus Operations Department of the Chief Directorate of the Russian Ministry of the Interior in the Southern Federal Circuit (ОРБ-2 СКОУ ГУ МВД РФ по ЮФО  hereinafter “ORB-2”). After their arrest they were taken to the temporary detention facility at ORB-2 (hereinafter “the IVS”). Official records of the applicants’ arrest were drawn up on 30 and 24 September 2002 respectively. Throughout this time the applicants remained without legal assistance. Their families were unaware of their whereabouts.

8. According to the applicants, for several days during their unrecorded detention they were repeatedly ill‑treated by officers of ORB-2 and forced into confessing to being members of an illegal armed group in Grozny, and to the murders of several people, including police officers and military servicemen.

9. The applicants described in detail the circumstances of the alleged ill‑treatment. They submitted, in particular, that the officers of ORB-2 had punched and kicked them, beat them up with truncheons, administered electric shocks while putting gas masks or plastic bags over their heads, and had threatened them with rape and blackmail. According to the second applicant, he was also beaten over the head with a plastic bottle filled with water while his head was pressed against the floor. Furthermore, the perpetrators jumped on his head with all their weight, burnt his back with cigarette butts, beat his fingers with a varnished stick while his hands were pressed against a table, and threatened to pierce his hands with staples and shoot him. The applicants alleged that two of the perpetrators had been officers Yakh. and Gul.

10. Once the applicants’ arrests were formalised, they reiterated their confession statements in the presence of the chief investigator, S., and two legal aid lawyers, Ts. and D. The applicants confirmed that they had made their statements voluntarily. According to them, officers Yakh. and Gul. were both present during their interviews.

11. When questioning the second applicant on 24 September 2002 in the presence of D. and officer Yakh., S. lifted up his shirt and saw marks of beatings on his back (bruises, marks from electric wires and swellings). When asked how they had been caused, the second applicant said that he had fallen down the stairs. Several days later he told D. that he had received the injuries in a fight with his brother.

12. On 18 and 22 December 2002 respectively the applicants were transferred from the IVS to remand prison IZ-20/2 in Chernokozovo in the Naurskiy District of northern Chechnya.

13. The Government failed to submit the applicants’ medical documents for the period between September and December 2002, relying on the fact that they must have been destroyed following the expiry of their storage time-limit.

14. The Government provided a copy of a register of medical examinations of persons admitted to IZ-20/2 in the period between 26 November 2002 and 4 October 2003. The entries concerning both applicants state “no bodily injuries”.

B. Investigation into the applicants’ complaints of ill-treatment and their conviction

15. After their transfer to the remand prison in December 2002 the applicants made several complaints to the Prosecutor’s Office of the Chechen Republic of their having been subjected to torture while in police custody at ORB-2. However, the institution of criminal proceedings was refused. On 3 December 2003 the investigator S. submitted as follows:

“Following their transfer to the SIZO in Grozny there was a flow of complaints and applications. At the present time I cannot remember the exact dates when the decisions on the applicants’ complaints and applications were made.”

16. On 14 and 18 April 2003 S. refused to institute criminal proceedings into the second applicant’s complaints of ill-treatment. The decisions were taken on the basis of statements by officers Gul. and Yakh., who denied using any physical force against him. It appears that a further complaint of ill-treatment submitted on 9 July 2003 to the Prosecutor’s Office of the Chechen Republic received no reply.

17. On 25 November 2003, during the course of the trial, the applicants complained to the court that during their unrecorded detention (between 25 and 30 September in respect of the first applicant and between 19 and 24 September in respect of the second applicant) they had been subjected to torture involving electric shocks, gas masks, beatings and threats by officers of ORB-2 and forced into making a confession. The applicants alleged that one of the perpetrators had been the chief operational officer, Yakh.

18. On the same day the Rostov Regional Court (“the Regional Court”) requested the Prosecutor’s Office of the Chechen Republic to conduct an inquiry into the applicants’ allegations.

19. On 8 December 2003 D., an investigator from the Leninskiy district prosecutor’s office of Grozny, having questioned S. (the investigator in charge of the pre-trial investigation in the criminal case against the applicants), Yakh. (the chief operational officer of ORB-2), T. (the legal aid lawyer for the applicants’ co-defendant) and Ts. (the legal aid lawyer for the first applicant), as well as M. (an attesting witness in several investigative activities), refused to open a criminal investigation into the applicants’ complaints of ill-treatment for lack of evidence that a crime had been committed. The decision, in so far as it concerns the applicants, reads as follows:

“[S.] submitted that he had been in charge of the pre-trial investigation of the criminal case [against the applicants] and that operational assistance had been provided by officers of [ORB-2], including the chief operational officer, Yakh.

After their arrest [the applicants] were placed in the temporary detention facility at [ORB-2], following which they were transferred to remand prison [illegible]. ... During the initial pre-trial investigation [the applicants] made no complaints of having been subjected to any unlawful methods of investigation. However, they subsequently made [relevant] complaints, which were decided by [S.] in the framework of the criminal case under investigation. On each occasion the [applicants’] arguments were not objectively confirmed and it was decided [that a criminal investigation would not be instituted]; he could not remember the dates of the relevant decisions ... [The applicants made their statements of their own free will; they were not subjected to any violence; all investigative measures were carried out with the participation of legal aid lawyers].

The legal aid lawyer Ts. submitted that she had represented [the first applicant] from 30 September 2002 until the end of the preliminary investigation. During the course of the preliminary investigation [the first applicant] had not complained of having been subjected to unlawful methods of investigation and physical violence, and Ts. had not lodged any complaints of ill-treatment with the prosecutor’s office on [the first applicant’s] behalf.

...

[Yakh.] submitted that ... no physical violence had been used against [the applicants] by the officers of [ORB-2], and that [the applicants] had made their statements of their own free will.”

20. On 9 December 2003 the presiding judge received a copy of the above-mentioned decision and read it out in court.

21. The trial court further questioned S. and the attesting witness M., who submitted that no physical force had been used against the applicants, who had made all their statements voluntarily and without coercion. S. admitted that when he had questioned the applicants at ORB-2 they had been handcuffed to the radiator to prevent them escaping.

22. On 18 and 30 December 2003 and 12 April 2004 the applicants’ lawyer asked the trial court to exclude the evidence obtained from the applicants under torture, but the requests were dismissed.

23. During the submissions the presiding judge allowed the prosecutor to amend one of the charges against the applicants in so far as it concerned a change to the date of the alleged murder of P. (from 30 to 29 May 2001).

24. On 11 May 2004 the Regional Court convicted the applicants, along with another co-defendant, of membership of an illegal armed group, several counts of murder, attempts on the life of law-enforcement officers and illegal possession of firearms. They were sentenced to twenty‑five years’ imprisonment. The applicants’ conviction was based on self‑incriminating statements given by the defendants during the pre-trial investigation in the period between September and December 2002 while they had been on the premises of ORB-2 (records of their questioning as suspects, records of their questioning as accused, records of confrontation between the parties, records of crime-scene examinations), and the findings of forensic medical examinations. The court also relied on statements by prosecution witnesses, including Ts., L. and K., and victims, although these did not link the applicants to the crimes they had been charged with. Despite the court’s rulings, most of the prosecution witnesses and the victims did not attend the trial. Having regard to the challenging social situation in the Chechen Republic, where the witnesses in question lived, the court used the statements obtained from them at the pre-trial stage as evidence. The defence witnesses were all heard during the trial and provided alibis for the applicants. The court, however, excluded their testimony, as they were all either their relatives or friends. The court decided that the applicants’ sentences should start to run from 25 and 19 September 2002 respectively.

25. The applicants appealed, claiming, inter alia, that they had been subjected to ill-treatment during the pre-trial investigation and convicted on the basis of evidence obtained under torture, that they had not been afforded an opportunity to examine the prosecution witnesses and the victims, and that during the submissions the presiding judge had allowed the prosecutor to amend one of the charges against them, thereby violating their right to defence. Attached to the second applicant’s appeal were witness statements by D., the legal aid lawyer who had represented him during the pre-trial investigation. The relevant part reads as follows:

“On 24 September 2002, when [the second applicant] was being questioned as a suspect, we saw that his back was covered in bruises. I agreed to make the relevant submissions to the [Regional Court]. However, somebody has misled the trial court, stating that I had “flatly refused to make any depositions”. I was not questioned during the pre-investigation inquiry, nor [did I] give any depositions to anybody except the lawyer [representing the applicants during the trial].”

26. On 18 August 2004 the Supreme Court of Russia upheld the judgment on appeal and reduced the applicants’ sentences to twenty-three and twenty‑four years’ imprisonment respectively. The court held that the applicants’ allegations had been reasonably found to be unsubstantiated, and that the difficult social situation in Chechnya could account for the inability to secure the attendance of the prosecution witnesses and victims. The appellate court found that the amendment of one of the charges against the applicants had not violated the applicants’ right to defence since, in any event, in the statements made during the pre-trial investigation they had mentioned having committed the crime “in around the spring of 2001” and furthermore during the trial had denied committing it at all.

27. On 25 October 2013 the Ust-Vymskiy District Court of the Republic of Komi reviewed the first applicant’s sentence in line with amendments to the criminal law and reduced it to twenty-two years’ imprisonment.

C. Developments in the case following its communication to the Government

28. Following communication of the applicants’ complaint of ill‑treatment to the Government in October 2011, on 6 December 2011 the prosecutor of the Leninskiy district of Grozny quashed as unlawful and unsubstantiated the decision of 8 December 2003 refusing to institute a criminal investigation into the applicants’ complaints of ill-treatment. An additional pre-investigation inquiry was ordered, so that the applicants could be questioned concerning the circumstances of the alleged ill‑treatment, the identity of the alleged perpetrators, the injuries allegedly sustained as a result of the ill-treatment and any requests made for medical assistance in this connection.

29. The case file contains no further information about the outcome of the additional pre-investigation inquiry.

D. The applicants’ allocation to correctional penal facilities

30. Following the applicants’ conviction, in September 2004 their families requested the head of the Rostov Regional Department of the Russian Federal Penal Authority (“the FSIN”) to allocate them to penal facilities in regions adjacent to their home region, the Chechen Republic.

31. In November 2004 the first applicant was allocated to a strict-regime correctional colony in the Republic of Komi, located over 3,000 kilometres from the Chechen Republic.

32. In December 2004 the second applicant was allocated to a strict‑regime correctional colony in the Omsk Region, located over 3,400 kilometres from the Chechen Republic.

33. On 22 August 2005 the first applicant’s family asked the head of the FSIN to transfer him to a penal facility in a less remote region. They referred, in particular, to his state of health (tuberculosis) and indicated that appropriate facilities were available in the Republic of Kalmykia. Their request was rejected.

34. The second applicant and his family lodged requests with the Omsk regional prosecutor, the head of the FSIN, the Prosecutor General of Russia and the Ombudsman for the Omsk Region seeking the applicant’s transfer to a less remote penal facility. They argued that he was serving a twenty‑four year sentence over 3,400 km from his home region, and that his parents had difficulties travelling long distances in view of their advanced age. It was likely that over time they would be unable to travel and would have no opportunity to visit their son.

35. In May 2006 the FSIN refused the second applicant’s request on the grounds that there were no strict-regime penal facilities in the Chechen Republic and no exceptional circumstances preventing him serving his sentence in the Omsk Region. Reference was made to Article 73 § 2 and Article 81 of the Code of Execution of Criminal Sentences (“the CES”).

36. On 18 July 2006 the applicants and their families complained to the Supreme Court of Russia that the applicants were being detained in penal facilities far from their home region and asked it to facilitate contact. The complaint reached the court on 28 July 2006. The case file contains no further information as to the outcome of this request.

37. On 4 December 2006 the second applicant asked the Prosecutor General of Russia to transfer him to a penal facility in the Chechen Republic or a nearby region. He pointed to difficulties in terms of family visits and contact.

38. On 15 March 2007 the FSIN again rejected the second applicant’s request.

39. On 30 July 2009 the FSIN rejected the first applicant’s request to be transferred to a penal facility in the Chechen Republic, with reference to Article 73 § 4 and Article 81 § 2 of the CES.

40. Subsequently, on an unspecified date the second applicant was transferred from the correctional colony in the Omsk Region to a correctional colony in the Murmansk Region, located over 3,700 km from the Chechen Republic.

II. RELEVANT DOMESTIC LAW

A. Prohibition of torture and other ill-treatment, and procedure for examining a criminal complaint

41. For the relevant provisions of domestic law, see Lyapin v. Russia (no. 46956/09, §§ 96-102, 24 July 2014) and Ryabtsev v. Russia (no. 13642/06, §§ 48‑52, 14 November 2013).

B. Allocation of prisoners

42. The relevant provisions of the Code of Execution of Criminal Sentences of 8 January 1997 (“the CES”) provide as follows:

Article 73

“1. Those sentenced to deprivation of liberty, save for [those] specified in paragraph 4 of this Article, shall serve [their] sentence in correctional penal facilities in the territory of the constituent entity of the Russian Federation in which they lived or were convicted. In exceptional cases, where the health of prisoners so demands, or to ensure their safety, or with their consent, convicts may be sent to an appropriate penal facility in the territory of another constituent entity of the Russian Federation.

2.  In the absence of an appropriate facility in the constituent entity of the place of residence or place of conviction, or if there are no places in existing penal facilities, convicts shall, with the consent of the higher penal authorities, be sent to correctional penal facilities in the territory of another constituent entity of the Russian Federation in which there are places available.

...

4. Those convicted of crimes punishable under Article 126 [kidnapping], Article 127.1 §§ 2 and 3 [aggravated human trafficking], Articles 205 to 206 [terrorism and hostage taking], Articles 208 to 211 [founding or membership of an illegal armed group, banditry, founding or membership of a criminal organisation, aircraft hijacking], Article 275 [high treason], Articles 277 to 279 [attempt on the life of a State official or public figure, hostile anti-Constitutional seizure of power, armed mutiny], Article 281 [sabotage], Article 282.1 [founding an extremist organisation], Article 282.2 [organising the activities of an extremist organisation], Article 317 [attempt on the life of a law‑enforcement officer], Article 321 § 3 [organising prison unrest], Article 360 § 2 [attacking diplomats and members of international organisations and their property with a view to provoking a war] of the Criminal Code of the Russian Federation, convicted particularly dangerous repeat offenders, convicts sentenced to life imprisonment, convicts sentenced to deprivation of liberty in prison, convicts in respect of whom capital punishment has been replaced with life imprisonment by pardon, shall be sent to serve their sentence in appropriate penal facilities in the places decided by the federal penal authority.”

Article 81

“1. As a rule, those sentenced to deprivation of liberty shall serve the entire term of their sentence in the same correctional penal facility or remand prison, including if they are sentenced to a new punishment during the period of serving [their sentence], unless the type of correctional facility is changed.

2. The transfer of a convict ... from one correctional penal facility to another of the same type is allowed in the case of illness, to ensure personal safety, during reorganisation or liquidation of a penal facility, and in other exceptional circumstances that preclude the convict’s further stay in that penal facility. The transfer of those convicted of offences listed in Article 73 § 4 of this Code from one penal facility to another of the same type is also allowed by decision of the federal penal authority. The transfer procedure is determined by the federal executive authority, which performs the functions of elaborating and implementing State policy and legal regulation in the sphere of the execution of criminal sentences ...”

43. Article 73 § 4 and the relevant reservation in Article 73 § 1 were introduced into the CES on 9 May 2005.

44. Prior to the introduction of amendments to Article 73 § 2 on 19 July 2007, the provision stipulated as follows:

“In the absence of an appropriate penal facility at the place of residence or place of conviction, or if it is impossible to place convicts in existing penal facilities, convicts shall be sent to the closest penal facilities in the territory of that constituent entity of the Russian Federation or, with the consent of the higher penal authorities, to penal facilities in the territory of another nearby constituent entity in which there are places available.”

45. For other relevant provisions of domestic law and practice, see Polyakova and Others v. Russia (nos. 35090/09 and 3 others, §§ 44-56, 7 March 2017).

C. Reopening of proceedings following a finding of a violation by the Court

46. Article 413 of the Code of Criminal Procedure provides that criminal proceedings may be reopened following a finding of a violation of the Convention by the Court.

III. RELEVANT COUNCIL OF EUROPE MATERIAL

47. The relevant parts of the public statement of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) concerning the Chechen Republic of the Russian Federation of 10 July 2003, read as follows:

“5. One establishment stands out in terms of the frequency and gravity of the alleged ill-treatment, namely ORB-2 (the Operative and Search Bureau of the North Caucasus Operations Department of the Chief Directorate of the Russian Ministry of Internal Affairs in the Southern Federal District) in Grozny.

ORB-2 has never appeared on any official list of detention facilities provided to the CPT. However, persons certainly are being held there, on occasion for very lengthy periods of time. In the course of its visits in 2002, the CPT received a large number of allegations of ill-treatment concerning this establishment which were supported in several cases by clear medical evidence gathered by its delegation. During the CPT’s most recent visit to the Chechen Republic, in May 2003, further allegations were received, once again supported in some cases by medical evidence.

When the CPT re-visited ORB-2 in May 2003, it was holding 17 persons, some of whom had been there for several months. The persons detained were extremely reluctant to speak to the delegation and appeared to be terrified. From the information at its disposal, the CPT has every reason to believe that they had been expressly warned to keep silent. All the on-site observations made at ORB-2, including as regards the general attitude and demeanour of the staff there, left the CPT deeply concerned about the fate of persons taken into custody at the ORB.

The CPT has repeatedly recommended that a thorough, independent inquiry be carried out into the methods used by ORB-2 staff when questioning detained persons; that recommendation has never been addressed in a meaningful manner. To argue that “a formal, written complaint is required for action to be taken” is an indefensible position to adopt given the climate of fear and mistrust which currently pervades the Chechen Republic, and constitutes a dereliction of responsibility. The CPT calls upon the Russian authorities to put a stop to ill-treatment at ORB-2 in Grozny.”

48. For the public statements of the CPT concerning the Chechen Republic of the Russian Federation of 13 March 2007 and 24 January 2013, also mentioning ORB-2 in Grozny, see Mukayev v. Russia (no. 22495/08, §§ 60-61, 14 March 2017).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

49. The applicants complained that they had been subjected to ill‑treatment at the hands of the police and that no effective investigation into their complaints had been carried out. They 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.”

50. The Government denied the applicants’ allegations of ill-treatment and considered them unsubstantiated, referring to the findings of the inquiry conducted by the prosecutor in response to the applicants’ complaints and to the conclusions reached in this regard by the trial and appellate courts. The Government further submitted that the investigation conducted by the Russian authorities had complied with the procedural requirements of Article 3 of the Convention.

51. The applicants submitted that agents of the State had subjected them to torture while in custody to make them confess to the crimes they had been accused of committing. They also argued that the investigation in response to their complaints had fallen short of the standards set forth in Article 3 of the Convention. The authorities had limited themselves to a superficial pre-investigation inquiry and had never instituted a fully-fledged investigation into their credible allegations.

A. Admissibility

52. 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

53. The relevant general principles were reiterated by the Court’s Grand Chamber in the case of Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-88, ECHR 2015). In particular, where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of individuals within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. The burden of proof is then on the Government to provide a satisfactory and convincing explanation by producing evidence establishing facts which cast doubt on the version of events given by the victim. In the absence of such an explanation, the Court can draw inferences which may be unfavourable for the Government. That is justified by the fact that those in custody are in a vulnerable position and the authorities are under a duty to protect them (ibid., § 83).

1. Credibility of the applicants’ allegations of ill-treatment and the presumption of fact

54. The Court first observes that the applicants were remanded in ORB‑2 for several days without their arrest being recorded (see paragraphs 7 and 24 above). Although they were not formally recognised as suspects, the material in the case file leaves little doubt in respect of their actual status as persons arrested on suspicion of having committed a criminal offence, and no other reason for holding them at the police station was suggested by the parties.

55. The Court is concerned about the length of the applicants’ unrecorded detention – five days each. During that time they remained on the premises of ORB-2 in the absence of 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 Minikayev v. Russia, no. 630/08, § 52, 5 January 2016, with further references).

56. The Court further observes that during the applicants’ unrecorded detention they were allegedly subjected to violence by officers of ORB-2. They provided a detailed and consistent account of the circumstances of the alleged ill-treatment, which involved severe beatings, electric shocks, gas masks, threats and so forth (see paragraph 9 above). It also notes that following their unrecorded detention both applicants signed confession statements, which they later challenged at trial as having been given under coercion and which were nevertheless used as evidence for their conviction for several particularly serious crimes.

57. The Court notes that the case file contains no documentary evidence recording the injuries allegedly sustained by the applicants at the hands of the police. Despite an explicit request by the Court, the Government failed to submit medical documents attesting to their state of health in the period between September and December 2002, explaining that they must have been destroyed upon the expiry of their storage time-limit (see paragraph 13 above).

58. The Court further notes that the Government submitted a copy of a register of medical examinations of persons admitted to IZ-20/2 in the period between 26 November 2002 and 4 October 2003, with the entries for both applicants stating “no bodily injuries” (see paragraph 14 above). The Court is not convinced, however, that this document can in itself disprove their allegations of ill-treatment. The ill-treatment allegedly took place in September 2002, while the document in question refers to the period of time when the applicants were admitted to the remand prison in December 2002, by which time the injuries allegedly sustained by them would have already healed (see paragraph 12 above).

59. The Court observes that, although the case file does not contain any medical records supporting the applicants’ allegations of ill-treatment, it contains a statement by the second applicant’s legal aid lawyer D., who saw that his back was covered in bruises during his interview as a suspect on 24 September 2002 (see paragraphs 11 and 25 above).

60. The Court notes that the applicants’ alleged ill-treatment took place in ORB-2 of Grozny, a facility which the CPT said stood out in terms of frequency and gravity of ill-treatment (see paragraphs 47 and 48 above).

61. The Court further notes that it has previously examined similar complaints of ill-treatment occurring on the premises of ORB-2 in 2003 and 2006, and found violations of Article 3 of the Convention on account of torture (see Tangiyev v. Russia, no. 27610/05, §§ 34-63, 11 December 2012, and Mukayev, cited above, §§ 62-77). The torture suffered by the applicants in those cases was similar to the treatment described by the applicants in the present case, involving beatings, electric shocks and gas masks.

62. Taking into account the Government’s failure to provide the medical records attesting to the applicants’ state of health in the period immediately following their alleged ill-treatment, combined with contextual factors (see Merabishvili v. Georgia [GC], no. 72508/13, § 312, 28 November 2017) such as the length of their unrecorded detention in ORB-2 in the absence of any safeguards against ill-treatment, the confession statements made at the end of their unrecorded detention and challenged later during the trial as given under coercion, the statement by the second applicant’s legal aid lawyer D., the observations made by the CPT at ORB-2 during their visit there in May 2003, as well as the Court’s case-law concerning similar allegations of ill-treatment at the facility at around the same time as the events at issue in the present case, the Court has sufficient grounds to consider that the applicants’ allegations of ill-treatment by officers from ORB-2 were credible.

2. Whether an effective investigation was carried out into the applicants’ allegations of ill-treatment

63. The Court observes that, in response to the applicants’ allegations of ill-treatment in police custody, the domestic authorities conducted a 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 an investigation if the information has disclosed elements of a criminal offence (see Lyapin, cited above, § 129).

64. The Court reiterates its finding that 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 a full range of investigative measures are carried out (ibid., §§ 129 and 132-36).

65. 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 failed to carry out an effective investigation into the applicants’ allegations of ill-treatment in police custody, as required by Article 3 of the Convention.

66. There has, accordingly, been a violation of Article 3 of the Convention under its procedural limb.

3. Whether the Government provided explanations capable of casting doubt on the applicants’ versions of events

67. The Government referred to the conclusions of the pre-investigation inquiry, asserting that the applicants’ allegations were unfounded. Given that they were provided as a result of a domestic pre-investigation inquiry falling short of the requirements of Article 3 of the Convention, which was later quashed by the supervising prosecutor as unlawful and unsubstantiated (see paragraph 28 above), the Court finds that they cannot be considered as satisfactory or convincing explanations.

68. It holds that the Government have failed to discharge their burden of proof and produce evidence capable of casting doubt on the applicants’ account of events, which it therefore finds established (see Olisov and Others v. Russia, nos. 10825/09 and 2 others, § 85, 2 May 2017).

4. Legal classification of the treatment

69. The Court reiterates that it has deemed treatment to be “inhuman” because it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering. Treatment has been held to be “degrading” when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance, or when it was such as to drive the victim to act against his will or conscience. In determining whether a particular form of ill-treatment should be classified as torture, consideration must be given to the distinction, embodied in Article 3 of the Convention, between this notion and that of inhuman or degrading treatment. As noted in previous cases, it appears that it was the intention that the Convention should, by means of such a distinction, attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering. In addition to the severity of the treatment, there is a purposive element to torture, as recognised in the United Nations Convention against Torture, which in Article 1 defines torture in terms of the intentional infliction of severe pain or suffering with the aim of obtaining information, inflicting punishment or intimidating (see Gäfgen v. Germany [GC], no. 22978/05, §§ 89-90, ECHR 2010).

70. The Court finds that the repeated acts of violence to which the applicants were subjected by police officers of ORB-2, given their severity and the aim of obtaining confessions, amounted to torture.

5. Conclusion

71. There has, accordingly, been a violation of Article 3 of the Convention under its substantive limb in that the applicants were subjected to torture, and under its procedural limb on account of the lack of an effective investigation into their allegations.

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

72. The applicants complained that the criminal proceedings against them had been unfair. In particular, they complained that their conviction had been based on evidence obtained as a result of torture, and that they had not been afforded an opportunity to examine a number of prosecution witnesses. They relied on Article 6 §§ 1 and 3 (d) of the Convention, which reads as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ...

...

3. Everyone charged with a criminal offence has the following minimum rights:

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him ...”

73. The Government considered the applicants’ complaint to be unsubstantiated. The pre-investigation inquiry had established that the applicants’ allegations of ill-treatment were unfounded and, therefore, the trial court had reasonably refused to exclude the contested evidence. It had taken all the necessary measures to secure the attendance of prosecution witnesses, which had proved unsuccessful owing to the difficult situation in the Chechen Republic hindering entrance and departure from the region. The trial court had therefore allowed the prosecutor’s request for the pre‑trial statements of absent witnesses to be read out, to which the applicants had not objected. In any event, the information provided by the absent witnesses had not in itself been sufficient for the applicants’ conviction.

74. The applicants maintained their complaint. They claimed that their confession statements, records of confrontations between the parties, transcripts of their interviews as suspects and reports of crime scene examinations they had participated in had been obtained as a result of torture while they had been on the premises of ORB-2, and that it had been mainly on the basis of this evidence that the domestic courts had found them guilty. They further submitted that they had not been afforded an opportunity to examine witnesses, in particular, Ts., L. and K., at any stage of the proceedings.

A. Admissibility

75. The Court notes that this part of the application 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

76. The Court notes that the applicants claimed that the criminal proceedings against them had been unfair, contrary to Article 6 of the Convention, for two reasons (see paragraph 72 above). Having examined the material in its possession, the Court does not consider it necessary to examine both aspects; it will concentrate on the applicants’ complaint that the domestic courts, when convicting them, had regard to confessions that they had made under duress.

77. In this connection, 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, cited above, §§ 166 and 173, and Turbylev v. Russia, no. 4722/09, § 90, 6 October 2015).

78. The Court has found above that the applicants were subjected to torture by police officers of ORB-2 and forced into confessing to the crimes with which they were subsequently charged. It observes that the applicants reiterated their confession statements during their questioning as suspects and during further investigative actions carried out between September and December 2002 while they had been held on the premises of ORB-2 where torture had taken place (see paragraphs 10 and 24 above). The records of those investigative actions, which the trial and appellate courts refused to declare inadmissible evidence, formed part of the evidence adduced against the applicants.

79. In rejecting the applicants’ requests for their confession statements to be declared inadmissible on the grounds that they had been obtained under duress the Regional Court failed to carry out a proper independent assessment with a view to ascertaining whether there were reasons to exclude those statements, allegedly “tainted” by the applicants’ ill‑treatment, so as to ensure the fairness of the trial. Instead, it relied on the investigating authority’s decision refusing to institute criminal proceedings into the applicants’ alleged ill-treatment, which the Court has found to have been based on a pre-investigation inquiry which did not meet Article 3 requirements. This lack of careful assessment of the quality of the impugned evidence and the circumstances in which it was obtained was not remedied by the national courts.

80. In such circumstances, the Court concludes that, regardless of the impact the statements obtained under duress had on the outcome of the criminal proceedings against them, their use as evidence rendered the trial unfair.

81. There has accordingly been a violation of Article 6 § 1 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

82. The applicants further complained that their allocation to remote penal facilities to serve their sentences of imprisonment had violated their right to respect for family life on account of the lack of practical opportunities for prison visits. They relied on Article 8 of the Convention, which reads, in so far as relevant, as follows:

“1. Everyone has the right to respect for his private and family life ...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

83. The Government argued that it had been open to the applicants to complain to the courts about their allocation to penal facilities located outside their home region, in accordance with the provisions contained in Chapter 25 of the Code of Civil Procedure. Since they had not had recourse to the above remedy, their complaint had to be dismissed for failure to exhaust domestic remedies. In the alternative, the Government argued that the applicants had failed to comply with the six-month requirement for lodging their complaint. They considered that the applicants’ allocation to penal facilities had been a “single moment” decision and did not give rise to a continuous situation for the purposes of calculating the six-month rule under Article 35 § 1 of the Convention. The Government further submitted on the merits of the complaint that the applicants’ allocation to remote penal facilities had amounted to an interference with their rights under Article 8 of the Convention. However, despite the fact that the legal grounds for allocating persons convicted, as the applicants, under Articles 208 (membership of an illegal armed group) and 317 (attempt on the life of a law-enforcement officer) of the Criminal Code to penal facilities determined by the FSIN (Article 73 § 4 of the CES), had been introduced several months after the applicants’ actual transfer, the interference had nevertheless been in accordance with the law, had been necessary and had not amounted to a violation of Article 8 of the Convention. The applicants had been given long prison sentences, to be served in strict-regime penal facilities. However, at the relevant time there had been no such penal facilities in the Chechen Republic, which was why the applicants had been allocated to penal facilities in other regions. Furthermore, had the applicants remained in the Chechen Republic to serve their sentences, it would have created a serious risk to public order and safety in view of the criminal situation in the region at the material time.

84. The applicants argued that since the domestic law did not define any clear criteria and procedure for allocating a convicted person to a penal facility by the federal penal authority, which was left completely to the discretion of the latter, no court action under Chapter 25 of the Code of Civil Procedure had offered them any prospects of success. Therefore, they had not had any domestic remedies to exhaust. The applicants considered that their allocation to penal facilities far from home constituted a continuing situation, because they continued to suffer the negative consequences of the interference with their rights under Article 8 of the Convention, and that the six-month time-limit for lodging their complaint with the Court had been complied with. The applicants submitted on the merits of the case that their placement in penal facilities far from their home region had amounted to an interference with their right to respect for their family life. The interference had not been in accordance with the law, since the law did not satisfy the “quality of law” requirement, and had not pursued a legitimate aim. Even if there had been no appropriate penal facilities in the Chechen Republic there should have been such facilities in the adjacent regions. The applicants pointed to the existence of at least one facility in the Chechen Republic, IK-2, which, although a normal-security prison, had a high-security wing. Furthermore, it was unclear how their allocation to remote penal facilities could have served to protect public safety in the Chechen Republic. Even assuming that the interference had pursued a legitimate aim, it had been disproportionate as it had unnecessarily limited their opportunity to preserve family and social ties after their conviction.

A. Admissibility

1. Exhaustion of domestic remedies

85. The rule of exhaustion of domestic remedies under Article 35 § 1 of the Convention obliges applicants to use first the remedies which are available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain both in theory and in practice, failing which they will lack the requisite accessibility and effectiveness. It is incumbent on the respondent Government claiming non-exhaustion to indicate to the Court with sufficient clarity the remedies to which the applicants have not had recourse and to satisfy the Court that the remedies in question were effective and available in theory and in practice at the relevant time, that is to say that they were accessible, were capable of providing redress in respect of the applicants’ complaints and offered reasonable prospects of success (see Guliyev v. Russia, no. 24650/02, §§ 51-52, 19 June 2008, with further references).

86. In the present case, the Government claimed that it had been incumbent on the applicants to challenge before the courts the FSIN’s decisions to allocate them to remote penal facilities in accordance with the procedure, in force at the material time, provided by Chapter 25 of the Code of Civil Procedure. They failed, however, to explain by providing any example from domestic practice how the suggested remedy could have prevented the alleged violation or its continuation or afforded the applicants adequate redress. In such circumstances, the Court considers that the Government have not substantiated their claim as to the availability to the applicants of an effective domestic remedy for their complaint under Article 8 of the Convention. Accordingly, the Court rejects their objection.

2. Compliance with the six-month rule

87. The Court has already established that a prisoner’s detention under unvaried conditions and/or regime constitutes a “continuous situation” and that a complaint under Article 8 of the Convention concerning the effective impossibility of maintaining family and social ties during imprisonment in a remote penal facility must (unless an effective remedy was available) be submitted within six months of the end of the detention in that facility (see Polyakova and Others, cited above, §§ 63-67, with further references).

88. Considering that the applicants lodged their complaint under Article 8 of the Convention while they were serving their sentences in the remote penal facilities, the Government’s objection must be dismissed.

3. Conclusion

89. The Court also notes that this part of the application 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

90. The principles as regards prisoners’ right to private and family life are well-established in the Court’s case-law and are summarised, inter alia, in the case of Polyakova (cited above, §§ 84-89, with further references).

91. The Court accepts, and it is not disputed by the parties, that in the circumstances of the case the authorities’ decisions to allocate the applicants to remote penal facilities to serve their prison sentences amounted to an interference with their right to respect for their family life.

92. The Court has to next determine whether the interference was justified under Article 8 § 2 of the Convention, that is, whether it was “in accordance with the law”, pursued one or more of the legitimate aims set out in that paragraph and was “necessary in a democratic society” to achieve that aim or those aims.

93. The wording “in accordance with the law” requires the impugned measure both to have some basis in domestic law and to be compatible with the rule of law, which is expressly mentioned in the Preamble to the Convention and inherent in the object and purpose of Article 8 of the Convention. The law must thus meet quality requirements: it must be accessible to the person concerned and foreseeable as to its effects (see Roman Zakharov v. Russia [GC], no. 47143/06, § 228, ECHR 2015).

94. The Court notes that the decisions of the FSIN to allocate the applicants to penal facilities and their subsequent refusals to transfer them to other penal facilities on the grounds of respect for their family life were based on Article 73 §§ 2 and 4 and Article 81 of the CES respectively (see paragraph 42 above).

95. The Court reiterates that is has already found in the case of Polyakova and Others (cited above) that provisions contained in Article 73 §§ 2 and 4 and Article 81 of the CES did not satisfy the “quality of law” requirement. The Court held, in particular, that Article 73 §§ 2 and 4 did not provide for the weighing of the competing individual and public interests and assessment of the proportionality of a restriction of the relevant Article 8 of the Convention right in the context of allocation of prisoners as a matter of exception to the general distribution rule, and that Article 81 of the CES did not provide the applicants with any safeguards against its arbitrary application by the FSIN irrespective of considerations pertaining to their right to respect for family life (ibid., §§ 94-107, and §§ 116-18).

96. In view of the above finding, which is fully applicable to the present case, it follows that the interference with the applicants’ right to respect for their family life was not “in accordance with the law” within the meaning of Article 8 § 2 of the Convention. Consequently, there has been a violation of Article 8 of the Convention in respect of each applicant.

97. Having regard to the foregoing conclusion, the Court does not consider it necessary to examine whether the other requirements of paragraph 2 of Article 8 of the Convention were complied with in the present case.

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

98. Lastly, the applicants complained under Article 3 of the Convention about the conditions of their detention in the IVS, under Article 5 of the Convention of the unlawfulness of their unrecorded detention, and under Article 6 of the Convention of further procedural irregularities in the criminal proceedings against them.

99. Having regard to all the material in its possession and in so far as it falls within its competence, the Court finds that there is no appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

V. 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. Damage

101. The first applicant claimed 855,000 euros (EUR) and the second applicant EUR 342,000 in respect of pecuniary damage for violation of their rights under Article 3 of the Convention, representing their families’ alleged expenses and their loss of income. They further claimed EUR 37,000 each in respect of non-pecuniary damage, broken down as follows: EUR 12,000, EUR 15,000 and EUR 10,000 for the breaches of Articles 3, 6 and 8 of the Convention respectively.

102. The Government considered that the amounts of the pecuniary damage claimed by the applicants were unsubstantiated and speculative. As regards the non-pecuniary damage, the Government considered that if the Court were to find a violation, the finding of such a violation would constitute in itself sufficient just satisfaction. They further considered that should the Court find a violation of Article 6 of the Convention, it should dismiss the applicants’ claim for non-pecuniary damage in this part, given that the criminal proceedings against the applicants could be reopened if the Court found a violation (see paragraph 46 above).

103. The Court notes that it has found violations of Articles 3, 6 and 8 of the Convention in the present case: the applicants were subjected to torture whilst in police custody, the investigation into their allegations of ill‑treatment was ineffective, the criminal proceedings against them were unfair, and they were allocated to penal facilities far from their home region in violation of their right to respect for family life.

104. The Court considers that the applicants’ claims for pecuniary damage are unsubstantiated. Consequently, it finds no reason to award the applicants any sum under this head.

105. As regards the non-pecuniary damage, the Court considers that the applicants’ suffering and anguish cannot be compensated for by a mere finding of a violation. Making its assessment on an equitable basis, the Court awards the applicants EUR 37,000 each in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. The Court further notes that Article 413 of the Code of Criminal Procedure provides that criminal proceedings may be reopened if the Court finds a violation of the Convention.

B. Costs and expenses

106. The applicants also claimed EUR 9,600 for the work carried out by their representatives, who spent seventy-eight hours preparing the case, with forty-two hours at a rate of EUR 100 per hour and thirty-six hours at a rate of EUR 150 per hour.

107. The Government submitted that the applicants’ claim was excessive.

108. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, and taking note of the fact that the applicants have benefited from legal aid which has already been paid to their representatives in the amount of EUR 850, the Court considers it reasonable to award the sum of EUR 4,150, for the proceedings before the Court, to be paid directly to the bank account of the applicants’ representatives, plus any tax that may be chargeable to the applicants on that amount.

C. Default interest

109. 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 complaints concerning the alleged ill-treatment of the applicants in police custody and the ensuing investigation, the unfairness of the criminal proceedings against them, and their allocation to penal facilities far from their home region admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 3 of the Convention under its substantive limb in that the applicants were subjected to torture, and under its procedural limb on account of the lack of an effective investigation into their allegations;

3. Holds that there has been a violation of Article 6 § 1 of the Convention;

4. Holds that there has been a violation of Article 8 of the Convention;

5. Holds

(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 37,000 (thirty-seven thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be paid to each of the applicants;

(ii) EUR 4,150 (four thousand one hundred and fifty euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be paid to the bank account of the applicants’ representatives;

(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;

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

Done in English, and notified in writing on 10 July 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stephen PhillipsHelena Jäderblom
RegistrarPresident

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