CASE OF ARKANIA v. GEORGIA

FIFTH SECTION

CASE OF ARKANIA v. GEORGIA

(Application no. 2625/12)

JUDGMENT
 

STRASBOURG

25 June 2020

This judgment is final but it may be subject to editorial revision.

In the case of Arkania v. Georgia,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

Gabriele Kucsko-Stadlmayer, President,
Lado Chanturia,
Anja Seibert-Fohr, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,

Having regard to:

the application against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Georgian national, Mr Lasha Arkania (“the applicant”), on 13 December 2011;

the decision to give notice to the Georgian Government (“the Government”) of the complaints concerning his alleged ill-treatment during the unrecorded detention by police and the lack of effective investigation in that regard and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 2 June 2020,

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

INTRODUCTION

The application, under Article 3 and Article 5 of the Convention, concerns the applicant’s alleged ill-treatment by police during his initial period of unrecorded detention for some four to five hours, and the prosecution authorities’ failure to conduct an effective investigation in that regard.

THE FACTS

1.  The applicant was born in 1976 and was detained in Zugdidi Prison at the material time. He was represented by Ms Ts. Javakhishvili and Mr K. Bekauri, lawyers practising in Tbilisi.

2.  The Government were represented by their Agents, Mr L. Meskhoradze and Mr B. Dzamashvili, of the Ministry of Justice.Arrest and alleged ill-treatment of the applicant

3.  According to a detention and personal search report in respect of the applicant, he was arrested on 15 June 2011 at 3 a.m. on suspicion of the unlawful possession of firearms. His arrest and personal search were conducted in urgent circumstances by the investigator in charge, I.A., with the participation of two police officers, in the village of Muzhava, in the Tsalenjikha district. The applicant’s personal search revealed that he had on his person one Kalashnikov rifle, nineteen cartridges and a small paper bag containing some greyish substance. The report noted that there were multiple scratches on the applicant’s face and head which the applicant claimed to have sustained prior to his arrest. According to the detention report, the applicant was then taken to the Jvari police department (Tsalenjikha district).

4.  On the same morning, between 4.55 and 5.25 a.m., while being questioned by I.A. in the absence of a lawyer in the Jvari police department, the applicant pleaded guilty to the unlawful possession of firearms and drugs. He was then transferred to a temporary detention centre in the city of Zugdidi, where, upon admission, he underwent a visual examination. As a result, it was noted that he had bruises and reddish spots on his back and behind his ears and a haematoma on his left eye. It was noted in the relevant report, duly signed by the applicant, that he had received these injuries before his arrest, and that he had no complaints in this regard.

5.  On 16 June 2011 an ambulance was called for the applicant because his medical condition had deteriorated. The emergency doctor noted that he was complaining of a headache, dizziness, nausea and overall weakness, and diagnosed him with a post-concussion condition. On the same date the applicant was formally charged with arms and drug-related offences under Article 236 §§ 1 and 3 and Article 260 § 2 of the Criminal Code. Following that, he complained to the Zugdidi district prosecutor, alleging that he had been arrested on 14 June 2011 at around 10 p.m. by several police officers who had ill-treated him. He claimed that as a result of serious physical and psychological duress he had been forced to sign a statement in which he had pleaded guilty to the unlawful possession of drugs and firearms. He protested his innocence and requested that arrangements be made for a medical examination.

6.  On 17 June 2011, acting at the prosecutor’s request, the Tsalenjikha District Court ordered the applicant’s pre-trial detention. By way of a one-phrase formulaic statement, it concluded that there had been no procedural irregularities during the applicant’s arrest. The pre-trial detention order was confirmed by the Kutaisi Court of Appeal on 23 June 2011. The applicant raised his allegations before both courts, detailing the circumstances of his arrest and ill-treatment. He maintained: that he had been arrested on 14 June 2011 at around 10 p.m. by plain-clothes police officers in the village of Muzhava; that he had been ill‑treated thereafter; and that his ill-treatment had also continued after his transfer to the Jvari police department. While providing details of the ill‑treatment, the applicant identified the investigator in his case, I.A., as being among those who had actually beaten him and forced him to give a self-incriminatory statement. The above allegations by the applicant were not examined by the domestic courts, and the trial court only mentioned that he had a right to file a complaint about his alleged torture.Investigation into the alleged ill-treatment of the applicant

7.  On 17 June 2011 the applicant was visited by a representative of the Public Defender’s Office, who drew up a report detailing the applicant’s arrest and alleged ill-treatment. According to his account of events as presented in that report, on 14 June 2011 at around 9-10 p.m. the applicant had received a telephone call from an acquaintance, who had asked him for an urgent meeting. The applicant had gone to see him, accompanied by his neighbour, R.Kh., and a friend, K.A. As they had approached the proposed meeting point, a vehicle had driven towards them. Three people had got out of the vehicle and had forced the applicant into it and driven away. The applicant had been taken to an old abandoned factory in the village of Tchale, where he had been severely beaten with a rifle butt. Then, he had been taken to the Jvari police department, where his ill-treatment had continued. He had been threatened with rape and had lost consciousness several times. Early in the morning he had been taken to the Tsalenjikha police department, and from there to Zugdidi. In his statement, the applicant claimed that he had learned who the three persons who had detained him were (the head of the Jvari police department named S.A., an employee of the Tsalenjikha prosecutor’s office named R.K., and a police officer named G.S.) and could identify them. He also claimed that he had been subjected to beatings and other forms of ill-treatment at the Jvari police department in the presence of I.A., the investigator responsible for his case.

8.  On 21 June 2011 the above report was forwarded by the Public Defender of Georgia to the Chief Prosecutor of Georgia, along with a recommendation that criminal proceedings be initiated and arrangements be made for the applicant to have a forensic examination. In his letter, the Public Defender noted that during a visual examination of the applicant on 17 June 2011 a number of injuries had been noted, notably, redness and a bruise on the right part of the applicant’s back, redness behind both ears, and a swollen left eye. According to the case file, in the meantime, on 19 June 2011, the investigator I.A. ordered the applicant’s forensic examination.

9.  On 22 June 2011 R.Kh., the applicant’s neighbour, was questioned in connection with the circumstances of his arrest. She claimed that she had been with the applicant on the evening of 14 June 2011 and had seen him being forced into a car and driven away. She could not see in the dark whether the people who had taken him away had been wearing police uniforms or not, although she was sure that they were police officers. In reply to a specific question, she noted that this had happened between 10 and 11 p.m.

10.  On 5 July 2011 the applicant wrote to the head of Samegrelo-Upper Svaneti regional prosecutor’s office. He insisted on being questioned in connection with the circumstances of his arrest and ill-treatment. However, he said that he was not willing to give a statement to I.A., the investigator in charge of his criminal case, whom he had implicated in his ill-treatment. In the absence of a reply to the above letter, on 11 July 2011 the applicant’s lawyer sent a complaint to the Chief Prosecutor of Georgia. He detailed the circumstances of his unlawful arrest and ill-treatment and submitted the available medical evidence in support. He requested that the investigator I.A. be removed from his criminal case and that criminal proceedings in respect of his ill-treatment be initiated.

11.  On 1 August 2011 the applicant was again seen by a representative from the Public Defender’s Office. This time, the representative also reported seeing a number of injuries, allegedly burns, under both of the applicant’s armpits. The applicant said that he had cigarette burns which had been caused by the chief of the Jvari police and two other police officers. He claimed that he had not reported those injuries earlier as he had received threats of violence against his family. The above report was also forwarded to the Chief Prosecutor of Georgia.

12.  Following a series of additional complaints from the applicant and the Public Defender’s Office, a preliminary investigation was opened on 17 August 2011 under Article 144(1) § 1 (b) of the Criminal Code of Georgia (aggravated torture). On the same date the applicant was questioned as a witness. He confirmed the account of events which he had given in his previous statements, describing in a detailed manner his arrest and the alleged ill-treatment that had followed. He claimed that he had immediately identified the head of the Jvari police among the three plain-clothes officers who had arrested him, and that he had been transferred to the Jvari police department upon the order of the head of the Tsalenjikha police, and his ill‑treatment had continued there. He also described the physical appearance of several other persons who had allegedly participated in his ill-treatment, and claimed that he could identify them.

13.  On 21 August 2011 the report on the applicant’s forensic examination (conducted on 20 June 2011) was issued, according to which multiple haematomas and minor scars had been found on the applicant’s body. The relevant experts concluded that these injuries, which belonged to the category of minor injuries, could date back to 15 June 2011. That examination was followed up by another one on 26 August 2011. This time, the expert noted that there were various scars on the applicant’s body, including four red scars under his left armpit and two identical scars under his right armpit. While noting that he could not identify the object that had caused these injuries, the expert concluded that they could be two to three months old.

14.  In August and September 2011 the applicant additionally underwent a comprehensive medical examination, including a psychiatric examination. As a result, he was diagnosed with post-concussion syndrome and post‑traumatic stress disorder. The applicant’s lawyer forwarded the above report to the prosecutor’s office, asking for it to be included in the criminal case file concerning the applicant’s alleged ill-treatment.

15.  On 14 October 2011 the applicant was again questioned. He provided more details concerning the alleged incident, including the family names of those involved. He maintained that he could identify most of them. He also claimed that he had been visited by the investigator in charge of the investigation, I.A., while he had been in the temporary detention centre, and I.A. had threatened to arrest his father if the applicant withdrew his self-incriminating statement (see paragraph 4 above).

16.  Subsequently, the applicant’s lawyer filed several complaints concerning the inadequacy of the investigation with the prosecutor in charge. She requested, among other things, that an identification procedure be organised and that several witnesses be questioned. All her requests were dismissed. She also requested an update about the progress of the investigation. In reply, she was simply told that the investigation was in progress.

17.  In the period April-June 2012 the investigator questioned six police officers who the applicant claimed had been involved in his unlawful arrest and ill-treatment. They all denied the applicant’s allegations and supported the official version of the events.

18.  By a letter of 11 May 2012 the Zugdidi deputy regional prosecutor informed the applicant’s lawyer that there was no basis for granting the applicant victim status.

19.  On 21 May 2012 the applicant complained to the Chief Prosecutor of Georgia. He provided him with his detailed version of the events and referred to the available supporting medical evidence, and requested that he be granted victim status. He also requested that a number of investigative actions be conducted, including the identification by name of all those who had been on duty at the Jvari police department on the night in question, and the organisation of identification parades.

20.  On 19 October 2012, in reply to another request by the applicant, the Zugdidi district prosecutor informed him that all the police officers named by him had been interviewed and all of them had denied his ill-treatment allegations.

21.  On an unidentified date in 2012 the case was transferred from the Zugdidi district prosecutor’s office to the Samegrelo-Upper Svaneti regional prosecutor’s office.

22.  On 28 December 2012 a new investigator in charge of the applicant’s case interviewed K.A., who had allegedly been with the applicant at the moment of his arrest. He confirmed the applicant’s version of events as regards the circumstances of his arrest, and claimed that he had not spotted any injuries on the applicant’s face on that evening (see paragraph 7 above).

23.  On 27 February and 17 May 2013 the applicant gave two more statements. While confirming the accuracy of his initial statements, he provided further details concerning the actual night of his arrest and ill‑treatment, and also the psychological pressure he had been subjected to thereafter.

24.  In the meantime, on 25-26 February 2013 a number of photo identification procedures had been organised, during which the applicant had identified G.G., K.K., G.S., R.A., I.S., Kh.S., I.A., D.K. and T.S. as the police officers who had taken part in his arrest and/or ill-treatment.

25.  Also in February 2013, the investigator in charge questioned one of the police officers, T.K., who claimed to have been on duty at the Jvari police department on the evening of 14 June 2011 and to have seen the applicant being brought to the department handcuffed at around 11.30 p.m. He said that the applicant had had clearly identifiable injuries on his face, his nose and lips had been covered in blood, and his clothes had been torn apart. The applicant had been brought inside the department, where two police officers had started beating him. T.K. had soon been ordered to go on patrol in the village of Jvari. He had returned at 6 a.m., when the applicant had already left. T.K. named the police officers who had brought the applicant to the police department, including those who had been identified by the applicant. Another police officer who had also been on duty on 14 June 2011, L.P., was interviewed on 9 February 2013. He confirmed that the applicant had been arrested sometime between 10 and 11 p.m. on 14 June 2011. He claimed to have seen the applicant being brought to the department and beaten between 11.30 p.m. and midnight. Although he identified the police officers involved by name, he said that he could not watch the applicant being ill-treated and had left the department to go on patrol. The same police officers were named by a third police officer, L.G., in his statement of 5 February 2013. Although he confirmed the circumstances of the applicant’s being escorted to the police department, he claimed that he had not looked at his face and thus did not know whether he had had any injuries.

26.  On 8 April 2013 the investigator interviewed the applicant’s first defence counsel, A.J. She confirmed that on 15 June 2011 when she had first met the applicant, he had had multiple injuries on his face and body. According to A.J., the applicant had said that he had received those injuries as a result of the ill-treatment which he had endured at the hands of the police.

27.  In May 2013 four employees of the Zugdidi temporary detention centre were interviewed. Although they recalled that the applicant had been brought to the centre with a number of injuries, they all said that he had not made any complaints against the police and had maintained that he had sustained those injuries prior to his arrest.

28.  On 5 May 2013 the applicant was formally granted victim status.

29.  On 17 June 2013 the investigator questioned two of the applicant’s neighbours, who noted that they had spent the afternoon of 14 June 2011 with the applicant and there had been no visual signs of any injuries on his face.

30.  According to the case file, the proceedings are still ongoing.The applicant’s trial

31.  On 27 July 2011 the applicant’s trial started before the Tsalenjikha District Court. The applicant reiterated his allegations that he had been detained on 14 June 2011 and taken to some abandoned factory where he had been ill-treated. He maintained that his physical and psychological abuse had also continued after his transfer to the Jvari police department, with the purpose of extracting a confession from him. On 23 August 2011 the applicant was convicted as charged and sentenced to thirteen years’ imprisonment. Relying on the official record of the applicant’s detention and personal search, the judge dismissed his submissions concerning the circumstances of his arrest as unsubstantiated. The court did not address the applicant’s ill-treatment allegations.

32.  The applicant appealed. His conviction was upheld by the Kutaisi Court of Appeal on 28 November 2011. By a decision of 16 February 2012 the Supreme Court of Georgia rejected an appeal by the applicant on points of law as inadmissible.

33.  The applicant was released from prison on 16 January 2013 under the Amnesty Act of 28 December 2012.

RELEVANT LEGAL FRAMEWORK

34.  For the relevant domestic law, see Goguadze v. Georgia ([Committee] no. 40009/12, §§ 35-37, 27 June 2019).

THE LAWALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

35.  The applicant complained that he had been ill-treated by police with the aim of extracting a confession from him, and that no effective investigation had been conducted in that regard. The applicant 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.”Admissibility

36.  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.MeritsThe parties’ submissions

37.  The applicant maintained that he had been ill-treated by police during the initial hours of his detention with the aim of extracting a confession from him. In support of his assertion, he referred to the available medical evidence, as well as to the evidence given by his friends, R.Kh. and K.A., his neighbours, and a number of police officers. As regards the investigation, the applicant submitted that despite the fact that various investigative measures had been implemented, the actual purpose of the investigation had never been the identification and punishment of those responsible. This was the reason why, to date, the alleged perpetrators had not been identified and punished.

38.  The Government submitted that the fact of the applicant’s ill‑treatment could not be established beyond reasonable doubt. They stressed that in the report on his arrest and personal search, it had been noted that the applicant had said that he had sustained those injuries prior to his arrest. He had reiterated that statement during his first police examination. He had also failed to request a medical examination upon his arrest, despite being informed of his right to do so. The Government further noted that the medical evidence had not been conclusive, and the applicant’s various statements as regards the circumstances of his ill-treatment had been contradictory. In such circumstances, and in view of the applicant’s tendency to self-harm, in the Government’s opinion, the applicant’s allegations were not substantiated.

39.  As to the investigation, the Government submitted that it had started promptly. All relevant investigative actions had been undertaken, including two forensic examinations, one with the purpose of establishing whether the applicant had cigarette burns, and all potential witnesses had been interviewed, including the police officers whom the applicant had implicated in his ill-treatment. The applicant had been granted victim status in the proceedings and had been regularly informed about the progress of the investigation. In view of the above-mentioned factors, the Government maintained that the investigation into the circumstances of the applicant’s alleged ill-treatment, which was still ongoing, was in full compliance with the requirements of Article 3 of the Convention.The Court’s assessment

(a)   General principles

40.  The relevant general principles were summarised by the Court in the case of Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-88, 100-101, and 114‑23, ECHR 2015).

(b)   Application of the above principles to the circumstances of the present case

41.  The Court considers it appropriate to firstly address the applicant’s complaint concerning the ineffectiveness of the investigation.

(i)  Procedural aspect of the complaint

42.  The Court observes at the outset that the applicant’s allegations of ill-treatment, as set out in his complaints lodged with the domestic authorities and supported by medical evidence, were arguable (see paragraphs 3, 4 5, 8, 11, and 13 above; see also paragraph 47 below). The applicant’s allegations furthermore were sufficiently serious to reach the level of severity required to fall within the scope of Article 3 of the Convention (see paragraph 48 below). The authorities were thus under an obligation to conduct an official effective investigation.

43.  As to the investigation, the Court notes that although the Government provided information about various investigative measures that the relevant authorities had implemented throughout the ongoing investigation, which has already lasted almost nine years (see paragraph 30 above), they failed to provide any explanations for the initial delay in initiating the proceedings. Thus, although the applicant voiced his allegations on 16 June 2011 (see paragraph 5 above), the investigation only started on 17 August 2011, after a series of repeated complaints by the applicant’s defence counsel and the Public Defender’s Office (see paragraph 12 above). The Government did not explain why it took the relevant authorities two months to initiate proceedings in what appeared to be a prima facie serious case of ill‑treatment supported by objective medical evidence.

44.  Furthermore, the Court notes that the investigation into the applicant’s alleged torture has been ongoing for almost nine years (see paragraph 30 above). Not a single investigative measure has been implemented since June 2013. The Government did not provide the Court with any explanations in that regard. As the Court has emphasised on previous occasions, although there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating allegations of ill-treatment may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see, among other authorities, Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 323, ECHR 2014 (extracts), and Bouyid, cited above, § 133).

45.  Without going into the substance of each and every investigative measure implemented by the respondent Government so far, the Court would simply note the following: almost nine years into the investigation, the relevant authorities have failed to provide a coherent and valid alternative explanation for the applicant’s injuries. In the proceedings before the Court, they referred to the note made in the report on the applicant’s arrest and personal search, as well as his initial incriminatory statement in which he claimed to have sustained those injuries prior to his arrest. Leaving aside the fact that the above two documents were compiled in the absence of a lawyer and, as alleged by the applicant, while he was under serious physical and psychological pressure, the Court considers that they are not sufficient to explain the multiple injuries (including the armpit burns) that were observed on the applicant’s head, face and body, and his head injury (see paragraphs 3, 4 5, 8, 11, and 13 above). In their submissions, the Government also noted that the applicant had a tendency to self-harm. In the absence of any evidence, the Court is not prepared to accept this argument either. The Government, thus, failed to present any convincing arguments to rebut the prima facie evidence concerning the circumstances in which the applicant had sustained those injuries.

46.  To sum up, the unjustified delay in initiating the proceedings, coupled with the unjustified length of the proceedings per se, lead the Court to the conclusion that the investigation has been ineffective for the purposes of Article 3 of the Convention. Furthermore, the failure of the relevant authorities to explain, in a convincing and reasonable manner, the source of the applicant’s injuries after years of investigation raises questions about the whole purpose of the proceedings. The Court, accordingly, finds a violation of Article 3 of the Convention under its procedural limb.

(ii)  Substantive aspect of the complaint

47.  The Court observes that the applicant’s description of the relevant circumstances concerning his alleged ill-treatment was detailed and coherent from the outset of the relevant proceedings and throughout. It involved consistent information regarding the time and place of the treatment and the manner in which he had been treated, and the names of those who had allegedly subjected him to that treatment. There are also other relevant factors corroborating his story. In addition to the significant amount of medical evidence (see paragraphs 3, 4 5, 8, 11, and 13 above), the Court notes the statements of the three police officers which partly supported the applicant’s version of events (see paragraph 25 above). Evidence given by the applicant’s neighbour and a friend is also of relevance, at least as far the timing of the applicant’s de facto arrest is concerned (see paragraphs 9 and 22 above). In the Court’s view, such evidence also excludes possible speculation that the applicant sustained those injuries prior to his arrest (ibid.). In such circumstances, the Court finds that the applicant’s account is sufficiently persuasive, and that his allegations under this Article have been established beyond “reasonable doubt”. The Government, as already concluded above, failed to provide the Court with their own convincing version of the events (see paragraph 45 above). It remains to be ascertained whether the treatment to which he was subjected infringed his rights under Article 3 of the Convention.

48.  The Court notes that the applicant suffered multiple injuries on his face and body, and he also suffered a head injury. It appears, notwithstanding the delay in conducting the relevant medical examination, that his allegations about cigarette burns under his armpits were also proven. These injuries were described in the medical records which were available to the investigating authorities. As the Court has already found above, the Government failed to provide a plausible explanation of how these injuries had been caused. Taken cumulatively with the evidence in the case file and the applicant’s detailed and consistent description of the ill-treatment he complained of, the Court finds that those injuries were the result of ill‑treatment to which the applicant was subjected while he was under police control. The Court thus concludes that there has been a violation of Article 3 of the Convention under its substantive limb as well.ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

49.  The applicant complained under Article 5 § 1 of the Convention that he had been de facto arrested between 10 and 11 p.m. on 14 June 2011, yet his arrest had only been documented with an official record of detention at 3 a.m. on 15 June 2011. The relevant part of Article 5 of the Convention reads as follows:

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...”AdmissibilitySubmissions by the parties

50.  The Government submitted that the applicant had failed to exhaust domestic legal remedies in connection with his Article 5 complaint. In their view, he had failed to avail himself of an available remedy, notably a criminal complaint under Article 147 of the Criminal Code (unlawful detention). In their submissions, they referred to the Court’s judgment in the case of Baisuev and Anzorov v. Georgia (no. 39804/04, § 33, 18 December 2012), in which the Court had treated a criminal complaint to the prosecution authorities as a relevant and adequate remedy for allegedly unlawful detention.

51.  The applicant did not comment on the Government’s inadmissibility plea.The Court’s assessment

52.  The Court notes that the applicant was arrested within the scope of criminal proceedings conducted against him. He had habeas corpus proceedings at his disposal (see paragraph 6 above). If not the only preventive remedy available to the applicant, such proceedings clearly constituted the most effective one, as they could have led to his immediate release if his initial detention had been ruled unlawful (in this regard, see Goguadze, cited above, § 60, with further references therein; contrast with Baisuev and Anzorov, cited above, §§ 6-8, where the applicants were not in pre-trial detention and had accordingly no habeas corpus proceedings at their disposal). According to the case file, the applicant availed himself of that remedy. He complained that he had been kept in unrecorded detention for about four hours, and that accordingly the maximum time-limit of forty-eight hours for an initial period of detention referred to in Article 196 of the CCP had been exceeded (see paragraph 6 above). He thus challenged the lawfulness of his detention, but unsuccessfully.

53.  As the applicant pursued a preventive remedy which could have put an end to the alleged violation, the Court considers that he cannot be criticised for not pursuing other remedies (see Horváth v. Slovakia, no. 5515/09, §§ 69 and 78, 27 November 2012, and Kakabadze and Others v. Georgia, no. 1484/07, § 54, 2 October 2012, with further references therein). The Court thus dismisses the Government’s objection. It further notes that the applicant’s complaint under Article 5 § 1 of the Convention is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.MeritsThe parties’ submissions

54.  The applicant maintained that he had been de facto arrested between 10 and 11 p.m. on 14 June 2014.

55.  The Government did not submit any arguments.The Court’s assessment

(a)   The general principles

56.  The relevant general principles are set out in Baisuev and Anzorov (cited above, §§ 50-51; see also Belozorov v. Russia and Ukraine, no. 43611/02, §§ 111-113, 15 October 2015), among other authorities.

(b)   Application of the above principles to the circumstances of the current case

57.  The Court observes that the parties are in dispute as to the exact circumstances of the applicant’s arrest. The applicant maintained that he had been arrested some four to five hours before the record on his arrest had been formally drawn up, while the Government claimed that the record on the applicant’s arrest was accurate.

58.  Having regard to the parties’ submissions, the Court is not convinced by the Government’s contention that the applicant was arrested on 15 June 2011 at 3 a.m. As the Court has already found above (see paragraph 48 above), the applicant was subjected to ill-treatment which, as appears from the case file, took place during his initial unrecorded detention. At least five witnesses corroborated the applicant’s version as far as the particular circumstances of his arrest were concerned (see paragraph 9, 22, and 25 above). By not conducting an expedient, adequate and efficient investigation into the applicant’s allegations, and by not presenting any satisfactory and convincing explanation of how the events in question occurred, the Government failed to discharge their burden of proof and provide relevant and convincing evidence in support of the official version of the events. In such circumstances, the Court accepts that the applicant was in fact arrested between 10 and 11 p.m. on 14 June 2011, and not at 3 a.m. on 15 June 2011.

59.  The Court reiterates that the unrecorded detention of an individual constitutes a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention and discloses a most grave violation of that provision. The absence of a record of such matters as the date, time and location of detention, the name of the detainee in question, the reasons for his or her detention and the name of the person effecting it must be seen as incompatible with the requirement of lawfulness and with the very purpose of Article 5 of the Convention (see, among many other authorities, Čamans and Timofejeva v. Latvia, no. 42906/12, § 129, 28 April 2016).

60.  In the absence of any persuasive argument by the Government, the Court holds that the applicant’s unrecorded detention for some four to five hours was contrary to the requirements of Article 5 § 1 of the Convention. There has accordingly been a violation of that provision.APPLICATION OF ARTICLE 41 OF THE CONVENTION

61.  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.”

62.  The applicant claimed 10,000 euros (EUR) in respect of costs and expenses, without submitting any relevant bills in support. He also claimed EUR 100,000 in respect of non-pecuniary damage on account of the suffering and pain which he had endured.

63.  The Government submitted that the amount claimed in respect of non-pecuniary damage was excessive. As to the costs and expenses, noting the absence of supporting financial and/or other documents, the Government proposed that these claims be dismissed as unsubstantiated.

64.  The Court notes that it has found a violation under both the substantive and procedural limbs of Article 3 of the Convention on account of the applicant’s ill-treatment and the failure of the domestic authorities to carry out an effective investigation into the matter, as well as a violation of Article 5 § 1 of the Convention on account of the applicant’s unrecorded detention. These violations inevitably caused the applicant serious suffering and frustration. The Court thus awards the applicant EUR 16,000 in respect of non-pecuniary damage. It further dismisses the applicant’s claim for costs and expenses for lack of supporting documents.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,Declares the application admissible;Holds that there has been a violation of Article 3 of the Convention under its substantive and procedural limbs;Holds that there has been a violation of Article 5 § 1 of the Convention;Holds

(a)  that the respondent State is to pay the applicant, within three months, EUR 16,000 (sixteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 25 June 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Anne-Marie Dougin Gabriele Kucsko-Stadlmayer
Acting Deputy RegistrarPresident

 

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