CASE OF BYKOVTSEV AND PRACHEV v. RUSSIA

THIRD SECTION

CASE OF BYKOVTSEV AND PRACHEV v. RUSSIA

(Applications nos. 27728/08 and 44353/08)

JUDGMENT

STRASBOURG

21 May 2019

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

In the case of Bykovtsev and Prachev v. Russia,

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

Alena Poláčková, President,
Dmitry Dedov,
Jolien Schukking, judges,

and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 30 April 2019,

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

PROCEDURE

1.  The case originated in two applications (nos. 27728/08 and 44353/08) 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 Valeriy Gennadyevich Bykovtsev (“the first applicant”) and Mr Sergey Dmitriyevich Prachev (“the second applicant”), on 11 April 2008 and 23 August 2008 respectively.

2.  The applicants, who had been granted legal aid, were represented initially by Mr A.V. Sokolenko (the first applicant) and Mr E.M. Chernushkin (the second applicant), and more recently by Mr A. Buzunov (both applicants), lawyers practising in Voronezh. 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.  On 10 June 2015 notice of the applicants’ complaints concerning their alleged torture in police custody, the authorities’ failure to carry out an effective investigation into their complaints and a lack of effective domestic remedies in that respect, and the length of the applicants’ pre-trial detention, as well as the first applicant’s complaints concerning his solitary confinement, the judicial review of the lawfulness of his pre-trial detention and his transfer to a remote penal facility for serving his prison sentence, was given to the Government and the remainder of the applications were declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

4.  The first applicant was born in 1966 and is serving a prison sentence in correctional facility IK-8 in the Khabarovsk region. The second applicant was born in 1967 and is serving a prison sentence in correctional facility IK‑10 in the Sverdlovsk region.

A.  The applicants’ arrest and alleged ill-treatment

5.  The applicants were arrested at 6 a.m. (the first applicant) and 7 a.m. (the second applicant) on 19 March 2007 on suspicion of having committed murder and taken to the Department for Combating Organised Crime at the Voronezh regional police department (управление по борьбе с организованной преступностью при ГУВД Воронежской области, the “UBOP”). Their arrest records were drawn up at 8.40 a.m. and 9 a.m., respectively.

6.  According to the applicants, S., G. and other police officers from the UBOP (according to the second applicant, in the presence of investigator M.) subjected them to violence in different offices at the UBOP premises in order to make them confess to various crimes. The applicants described being administered electric shocks through wires attached to various parts of their bodies, including ears and genitals, while gas masks were put over their heads, their hands were shackled behind their backs and several police officers restrained them on the floor in order not to let them throw the wires off. The police officers pushed on the handcuffs. The first applicant also described being punched and kicked. The applicants did not give any self‑incriminating statements.

7.  At around 10 p.m. the applicants were taken to a temporary detention facility at the Voronezh regional police department (the “IVS”).

8.  The IVS duty officer in the presence of police officer S. recorded the following injuries on the first applicant: bruises on the bridge of the nose, under both eyes, on the left shoulder blade, right shoulder and stomach, abrasions on the wrists, and an abrasion and a bruise on the buttocks. An ambulance was called. The ambulance medical assistant recorded an abrasion and bruising to the applicant’s right wrist and directed the applicant to an emergency hospital where he was diagnosed with contusion to the soft tissues of the right wrist. It was noted that he had abrasions and bruising to the right wrist, which was swallowed and hot.

9.  On 22 March 2007 the first applicant was transferred to pre-trial detention facility SIZO-1 in Voronezh, where the following injuries were recorded on him: bruises on both forearms, abrasions on both wrist joints, and small abrasions under thin scabs below the skin level on the left wrist, the right hip and shank. According to SIZO-1, the second applicant had no visible injuries on his arrival there on 23 March 2007.

10.  On 23 March 2007 an investigator of the Voronezh regional prosecutor’s office ordered the applicants’ forensic medical examination with a view to establishing the presence of injuries, stating that the applicants had been arrested on 19 March 2007 and asking whether injuries, if any, could have been self-inflicted or caused as a result of a fall.

11.  On the same day the second applicant was examined at the Voronezh Regional Forensic Medical Examination Bureau. Expert Sh. recorded the following injuries on him: a bruise in the area around each wrist joint measuring 13 to 0.4-0.5 centimetres; a bruise on the right shank measuring 3.5 to 2.5 centimetres; a stripe-shaped abrasion on the left forearm measuring 2.2 centimetres with uneven edges and a firm reddish-brown surface at the skin level; and small abrasions on each wrist measuring 0.2 to 0.4 centimetres and on the left shank measuring 0.3 to 0.7 centimetres of an irregular‑oval shape with uneven edges and firm reddish surface at or below the skin level.

12.  The expert concluded that “the injuries had been inflicted by a hard blunt object, as confirmed by bruises and abrasions”, not earlier than three‑five days before the examination (three days as regards the injuries on the wrist joints); that it was unlikely that they could have originated from a fall and that self-harm was not excluded.

13.  According to the expert’s report of 23 March 2007, the second applicant’s examination was conducted in the presence of police officer S. and the applicant stated that police officers had not inflicted any injuries on him. According to the second applicant, his examination was conducted in the presence of S. and other police officers who had subjected him to violence and he feared for his safety; he was not able to fully undress himself for the examination; and the expert did not ask him any questions.

14.  On 27 March 2007 the first applicant was examined at the Voronezh Regional Forensic Medical Examination Bureau by the same expert who recorded the following injuries on him: a wound on the right wrist joint measuring 1.4 to 0.4 centimetres, of an irregular-oval shape, with uneven edges and rounded ends, under firm brownish scab rising over the skin level; an abrasion on the left wrist joint measuring 1.4 to 0.8 centimetres, of an irregular-oval shape, under firm brownish scab entirely coming off here and there; stripe-shaped abrasions on the wrists under firm brownish scabs entirely coming off here and there, measuring 3.5 to 0.4 centimetres (on the front side of the right wrist joint), 5.5 to 0.4 centimetres (on the back side of the right wrist joint) and 3.7 to 0.4 centimetres (on the back side of the left wrist joint).

15.  The expert concluded that the injuries had been inflicted by a hard blunt object, as confirmed by their nature, shortly before the examination, possibly at the time as indicated in the investigator’s decision ordering the examination. The expert excluded a fall as the origin of the injuries, while not ruling out self‑harm.

16.  According to the expert’s report of 27 March 2007, the first applicant’s examination was conducted in the presence of police officer S. and the applicant stated that on 19 March 2007 after his arrest police officers had punched him in the area of the stomach and the arms, had handcuffed him and tortured him with electric current.

17.  Following the investigator’s decision of 30 March 2007, expert Sh. issued an additional report of 26 April 2007, prepared without the first applicant’s examination, in which she stated that the first applicant’s wrist injuries could have been caused by handcuffs with further squeezing, approximately 7-11 days before the applicant’s examination on 27 March 2007.

18.  On 24 February 2011 a new report by the forensic medical expert was issued, on the basis of the two previous reports and the first applicant’s medical records from the IVS and SIZO-1. The expert concluded that the injuries to the first applicant’s wrists could have been inflicted on 19 March 2007. Their infliction on 16‑18 March 2007 could not also be excluded. The lack of details in the description of the injuries recorded at the IVS made it impossible to determine the time of their infliction. As regards the injuries recorded at SIZO-1, they could have been inflicted on 19 March 2007 and very unlikely prior to that date. The injuries had been inflicted by a hard blunt object. The expert did not find it possible to give an opinion as to whether the injures could have been inflicted by electric current. The applicant had received at least one traumatic impact to his face and no less than three traumatic impacts to his torso. The expert found it difficult to determine the number of traumatic impacts to the applicant’s upper and lower limbs in view of the multiplicity of the injuries. The injuries were located within the reach of the first applicant’s own hand (except for the bruise on the left shoulder blade) and could have therefore been self‑inflicted. They could not have originated from a fall.

B.  Pre-investigation inquiry into the applicants’ alleged ill‑treatment

1.  The first applicant

19.  On 25 and 30 March 2007 the first applicant complained about the violence he had allegedly suffered at the hands of the police officers at the UBOP to the Voronezh regional prosecutor’s office. On 9 April 2007 his complaint was received by the Leninskiy district prosecutor’s office of Voronezh. Similar complaints were lodged by his wife with the Voronezh regional police department and prosecutor’s office and the Prosecutor General of the Russian Federation.

20.  No criminal case was opened into his alleged ill-treatment. Investigators from the Leninskiy district prosecutor’s office of Voronezh, and later from the investigative committee unit for the Leninskiy district of Voronezh, conducted pre‑investigation inquiries and issued seven refusals to bring criminal proceedings for lack of the elements of crimes under Articles 286 § 3 (abuse of powers with use of violence) and 302 (coercion to give statements) of the Criminal Code in the actions of police officers S. and G., pursuant to Article 24 § 1 (2) of the Code of Criminal Procedure (“CCrP”). All refusals were annulled by the investigators’ superiors because they were based on incomplete inquiries and additional inquiries were ordered:

-  refusal of 20 April 2007, annulled on 19 September 2007;

-  refusal of 29 September 2007, annulled on 2 October 2007;

-  refusal of 12 October 2007, annulled on 28 November 2007;

-  refusal of 10 December 2007, annulled on 15 January 2008;

-  refusal of 25 January 2008, annulled on 11 February 2011;

-  refusal of 24 February 2011, annulled on 15 April 2011;

-  refusal of 28 April 2011, annulled on 6 July 2011; and

-  refusal of 8 July 2011 (on the grounds that the injuries could have been inflicted before the first applicant’s arrest and that the applicant had no injuries which could have been inflicted by electric current), annulled on 28 August 2015 (because the investigator failed, inter alia, to identify all police officers who had allegedly ill-treated the applicant).

21.  The following explanations were received by the investigators in the course of the pre-investigation inquiries. Witness B. stated to have seen that a blow “in the area of the ribs” had been delivered to the first applicant at the UBOP premises and to have heard the first applicant screaming in one of the UBOP offices. According to the first applicant’s wife who witnessed the applicant’s arrest at their home, the first applicant had no injuries before his arrest and he had injuries – he was limping and had a bruise under the right eye, an abrasion on the bridge of the nose and swallowed hands – next day when she saw him at the court hearing concerning his detention on remand. Police officers S. and G. stated that after arresting the applicant they had taken him to the UBOP premises where investigator M. had drawn up the record of his arrest. Then they had taken the first applicant to the IVS. At the IVS the first applicant had complained that handcuffs (used when taking him to the IVS) had chafed his hands and they had taken him to an emergency hospital where a doctor had disinfected a scratch on his wrist. They denied, as did investigator M., the first applicant’ ill-treatment.

22.  The first applicant’s appeals under Article 125 of the CCrP against the refusals to bring criminal proceedings of 20 April 2007, 12 October 2007, 10 December 2007, 24 February 2011, 28 April 2011 and 8 July 2011 were not examined by the Leninskiy District Court of Voronezh on the grounds that the impugned decisions had been annulled by the investigative authorities (after court appeals had been lodged). The applicant’s appeal against the refusal to initiate criminal proceedings of 25 January 2008 was examined and dismissed on the grounds that the refusal was reasoned and lawful (the District Court’s decision of 18 March 2008, upheld by the Voronezh Regional Court on 15 May 2008).

2.  The second applicant

23.  On 14 August 2007 the second applicant complained about his alleged ill‑treatment by the UBOP police officers to the Voronezh regional prosecutor’s office. When describing tortures by electric current he noted, in particular, that in order to keep the wires attached to his body the police officers had put them under the gas mask, under the elastics of the socks, and had tied them to the penis. No criminal case was opened into his alleged ill‑treatment.  Investigators from the Leninskiy district prosecutor’s office of Voronezh, and later from the investigative committee unit for the Leninskiy district of Voronezh, issued four refusals to bring criminal proceedings for lack of the elements of a crime under Article 286 (abuse of powers) of the Criminal Code in the actions of police officers S. and G. and investigator M., pursuant to Article 24 § 1 (2) of CCrP. All refusals were annulled by the investigators’ superiors because they were based on incomplete inquiries and additional inquiries were ordered:

-  refusal of 1 October 2007, revoked on 24 October 2007;

-  refusal of 6 November 2007, revoked on 16 November 2007;

-  refusal of 26 November 2007, revoked on 27 November 2007; and

-  refusal of 7 December 2007, revoked on 28 August 2015 (on the grounds, inter alia, that the information about the lack of injuries on the second applicant on his arrival to SIZO-1 on 23 March 2007 had not been supported by medical and other relevant documents).

24.  The refusals to institute criminal proceedings were based on explanations by police officers S. and G. and investigator M. denying the second applicant’s ill-treatment, and explanations allegedly received over phone from expert Sh. that the second applicant’s injuries could not have been inflicted by electric current. The investigating authorities concluded that the second applicant’s allegations were unfounded.

25.  On 14 February 2008 the District Court rejected the second applicant’s appeal under Article 125 of the CCrP against the decision of 7 December 2007. On 1 April 2008 the Voronezh Regional Court upheld the District Court’s decision.

C.  The applicants’ detention on remand

1.  Detention pending investigation

26.  On 20 March 2007 the Leninskiy District Court of Voronezh examined in different proceedings an investigator’s request that the applicants be detained on remand on the grounds of the gravity of the crime of which they were suspected (murder) and resultant risks of their absconding, re-offending, threatening witnesses, victims and other participants to the proceedings, destroying evidence and otherwise hindering the criminal proceedings. The applicants and their lawyers objected, referring to the applicants’ permanent places of residence, the hypothetical nature of the investigator’s arguments and, in the first applicant’s case, to his employment and family ties. The court ordered the applicants’ detention, being satisfied that the applicants – suspected of the particularly grave crime punishable by long terms of deprivation of liberty – might re-offend, exert pressure on their potential accomplices and abscond, if at large.

27.  On 28 March 2007 the applicants were accused of robbery committed in September 2001 and theft. They were also suspected of having committed a number of other robberies and thefts as part of an organised group. The investigator advanced reasons for the extension of the applicants’ detention on remand similar to those in his initial request. In its decisions of 17 May 2007 (concerning both applicants, upheld on appeal by the Voronezh Regional Court on 5 June 2007), 8 June 2007 (concerning the second applicant, upheld on appeal on 3 July 2007), 9 June 2007 (concerning the first applicant, upheld on appeal on 26 June 2007) and 6 September and 12 December 2007 (concerning the second applicant, the latter decision upheld on appeal on 17 January 2008) the District Court, after hearing the applicants and their lawyers who maintained their objections, granted the investigator’s requests and extended the applicants’ detention, stating that they were accused of the grave crimes and the grounds for the court’s initial decision to remand them in custody had not changed.

28.  Essentially the same reasoning can be found in the court’s decision of 14 September 2007 (concerning the first applicant) which was taken in the presence of the investigator and prosecutor and in the first applicant’s absence due to his “health condition”. In his appeal against that decision the first applicant’s lawyer stated that on 14 September 2007 the first applicant had been taken to the hearing from his detention facility, he had felt unwell in the courthouse and an ambulance had been called. According to the ambulance records, the applicant had pain in the stomach, was diagnosed with rupture, was provided with medical assistance and required hospitalisation, which was refused. According to the lawyer, hospitalisation had been refused by the investigator who had ordered that the applicant be taken back to the detention facility. Despite the lawyer’s objections to holding the hearing in the applicant’s absence, the court had decided to proceed with the hearing. The lawyer had allegedly left the courtroom in protest.

29.  On 11 October 2007 the Regional Court, after hearing the applicant’s lawyer and the prosecutor, upheld the decision of 14 September 2007, holding that the District Court had taken into account the gravity of the offences incriminated to the applicant, his personality and the lack of grounds for the change of the preventive measure. It noted that according to the District Court’s records of the hearing the applicant’s lawyer had been present.

30.  On 12 December 2007 the District Court, having heard the applicants and their lawyers, extended the applicants’ detention until 16 March 2008. In addition to the gravity of crimes and the alleged corresponding risks of the applicants absconding, re-offending and influencing victims and witnesses, it noted that the investigator had to finalise important investigative measures, such as the additional questioning of victims, psychological expert examinations of the accused and bringing final charges against the applicants and their co‑accused. On 17 January 2008 the Regional Court upheld the decision on appeal.

31.  In its decisions for extension of the applicants’ detention of 6 March (concerning both applicants), 17 March 2008 (concerning the first applicant, upheld by the Supreme Court of Russia on 20 May 2008) and 18 March 2008 (concerning the second applicant, upheld on appeal on 20 May 2008) the Voronezh Regional Court relied on the gravity of multiple crimes of which the applicants stood accused (including banditry according to final charges), the risk of their re‑offending and the need to finalise investigative activities involving 36 victims and eight accused and their lawyers. It also noted complaints by the applicants’ co‑accused V.Z. and A.S. that the first applicant had allegedly threatened them with physical retaliation. In his appeal against those decisions the first applicant’s lawyer noted that the complaints by V.Z. and A.S. had not been read out and examined at the hearing, that they appeared to be meaningless in view of the fact that V.Z. and A.S. had themselves been detained pending trial and that the first applicant had lodged a counter-complaint with the police that they had slandered him. According to the first applicant, V.Z. and A.S. had not confirmed their complaints in the course of the relevant inquiry. In upholding the Regional Court’s decisions the Supreme Court did not address the arguments concerning the complaints by V.Z. and A.S. The Regional Court further issued detention extension orders similar to the previous orders on 11 June 2008 (concerning the first applicant, upheld on appeal by the Supreme Court of the Russian Federation on 11 September 2008) and 16 June 2008 (concerning the second applicant).

2.  Detention pending trial

32.  On 16 September 2008 the Regional Court held a preliminary hearing in the case against the applicants and others. In a grouped decision the court ordered that the applicants and other defendants should remain in custody pending trial, stating in general that it had no reasons to consider that the previous grounds for their detention were no longer valid or that a change in preventive measures was warranted. On 27 January 2009 the Supreme Court upheld the decision of 16 September 2008 on appeal. Essentially the same reasons were relied on in extending the applicants’ detention in the Regional Court’s decision of 25 February 2009, upheld on 10 June 2009 by the Supreme Court, which noted, without providing any details, that some victims in the case had expressed fears for their safety and that some defendants had abused their rights delaying the proceedings.

33.  The applicants’ detention was further extended pending trial for essentially the same reasons by the Regional Court’s decisions of 22 May 2009, 25 August 2009, 23 November 2009 (upheld by the Supreme Court on 25 February 2010) and 19 February 2010 (upheld on 27 July 2010). The reasoning in these grouped decisions concerning several defendants comprised (without indicating whom of the defendants it concerned) a reference to victims Kh., S. and Z. who had objected to the defendants’ release fearing for their and their families’ safety (the Government also referred to victims A.G., V.G. and M.; the first applicant noted that those victims, not mentioned in the courts’ decisions, had acknowledged at the trial that they had actually not received any threats from the defendants), the first applicant’s criminal records, the defendants’ abuse of their rights by submitting multiple requests the majority of which had been rejected and the resultant protraction of the proceedings and the risk of the defendants exerting pressure on jurors. It was noted that identification parades at the preliminary investigation had been conducted in a way that the visualisation of some victims by the accused had been excluded, in order to ensure the victims’ safety. According to the first applicant, it was not shown that this had been requested by the victims. The Regional Court also referred to alleged pressure on a co‑accused and witnesses by the first applicant by way of written instructions as to what statements to give at the trial. The first applicant disputed those allegations and unsuccessfully requested an expert opinion as to whether the instructions had been written by him.

D.  The applicants’ trial

34.  The applicants’ case was examined in a jury trial. At the preliminary hearing the Voronezh Regional Court dismissed the applicants’ and their co‑defendants’ complaints that they had been subjected to violence by the UBOP officers. The trial court heard, among others, witness R.D. who stated to have been subjected to violence, including electric shocks, by police officers S. and G. in the presence of investigator M. Witness B. stated that he had been taken to one of the UBOP offices where the first applicant was lying on the floor face down. Police officers had threatened B. to do the same to his son (the applicants’ co-accused) if B. would not write statements under their instructions. B. had seen that they had pushed on the shackles on the first applicant’s hands. According to written statements by one of the applicants’ co-defendants, V.Z., of 8 April 2008, and by a detainee in SIZO‑1, V.A.Z., of 7 April 2008 (submitted to the Court by the second applicant), V.Z. and V.A.Z. had allegedly been subjected to violence, including electric shocks, by the UBOP officers in 2007.

35.  Following a jury verdict of 1 December 2010, the Regional Court in a judgment of 29 December 2010 convicted the applicants of banditry (Article 209 of the Criminal Code), several accounts of theft and robbery, murder and illegal use of weapons, and sentenced the first applicant to twenty-four years’ imprisonment and a fine and the second applicant to twenty-two years’ imprisonment and a fine.

36.  On 23 August 2011 the Supreme Court of Russia quashed the judgment in respect of the first applicant and remitted his case to the trial court for a fresh examination from the moment following the jury verdict, extending his detention on remand until 23 November 2011. It upheld the judgment in respect of the second applicant.

37.  On 17 October 2011 the Regional Court convicted the first applicant of banditry (Article 209 of the Criminal Code), several accounts of theft and robbery, murder and illegal use of weapons, and sentenced him to twenty‑five years’ imprisonment and a fine. On 29 March 2012 the Supreme Court amended the judgment of 17 October 2011 by, inter alia, reducing the first applicant’s sentence to twenty-four years’ imprisonment and a fine and upheld the judgment in the remaining part.

E.  The first applicant’s solitary confinement

38.  According to a certificate of 27 August 2015 of SIZO-3 in the Voronezh region of the Russian Federal Penal Authority («Федеральная служба исполнения наказаний», “the FSIN”) submitted by the Government, the first applicant was held in SIZO-3 alone in cell no. 26 from 20 May 2009 to 29 November 2010, and alone in cell no. 3 from 29 November 2010 to 20 May 2012. The first applicant’s detention in SIZO‑3 in the Voronezh region from 20 May 2009 to 20 May 2012 is also confirmed by a certificate of 28 August 2015 of medical unit no. 10 of medical-sanitary department no. 36 of the FSIN.

39.  According to a certificate of 8 September 2015 of SIZO-3 and logs of dates of “individual consultations and psycho‑correctional work” submitted by the Government, the first applicant received such consultations on the following dates: 16 June 2009; 28 April, and 2 and 9 December in 2010; 4 February, 11 March, 21 April, 29 September and 23 December in 2011; and 29 March and 5 May in 2012. According to the first applicant, he did not receive such consultations. On some of the dates indicated in the records submitted by the Government he participated in court hearings in his case or had access to the case‑file at the courthouse, and some records indicated cell no. 28 as the place of his detention while he was never held there.

40.  According to a certificate of 14 October 2015 from medical unit no. 5 of medical-sanitary department no. 27 of IK-8 (in the Khabarovsk region) addressed to the applicant’s lawyer, the first applicant’s examination to determine his fitness for solitary confinement was not carried out.

41.  The first applicant had family visits on the following dates: 21 August, 11 and 25 September, and 6 November in 2009; 15 January, 5 February, 19 March, 16 April, 7 May, 4 June, 9 July, 16 August, 14 September, 17 November, and 3 and 28 December in 2010; 31 January, 21 March, 20 April, 16 May, 11 October, 8 November and 16 December in 2011; and 11 January and 16 May in 2012.

F.  The first applicant’s place of serving his prison sentence

42.  On 15 June 2011 a deputy head of the FSIN Voronezh regional unit issued a report for determining a further place for the first applicant’s detention. He stated that during his detention in SIZO-3 in Voronezh the first applicant had not committed disciplinary offences, had not entered into conflicts with the administration of the detention facility, and had been polite and tactful. However, he had shown himself as an adherent to the thieves’ customs. That report was approved by the head of the operational department of the FSIN for the Voronezh region and by the head of the FSIN for the Voronezh region.

43.  On 30 June 2011 the head of the FSIN ordered that the first applicant further serve his sentence in the Khabarovsk region.

44.  On 19 March 2012 the first applicant requested the Head of the FSIN that he be allowed to serve his sentence in the Voronezh region where his family resided. On 27 April 2012 his request was refused pursuant to Article 73 § 4 of the Code on the Execution of Sentences.

45.  In July 2012 the first applicant arrived at correctional facility IK-8 located in the Khabarovsk region.

46.  On 13 July 2012 the Sovetskiy District Court of Voronezh dismissed the applicant’s mother’s appeal against the FSIN’s decision, relying on Article 73 § 4 of the Code on the Execution of Sentences.

47.  On 7 November 2012 the Kominternovskiy District Court of Voronezh dismissed the applicant’s wife’s similar appeal on the same ground.

48.  On 11 January 2013 the first applicant again requested the FSIN that he be transferred to the Voronezh region for serving his sentence. On 25 February 2013 his request was refused. In April 2013 the first applicant challenged the FSIN’s refusal before the Zamoskvoretskiy District Court of Moscow. He complained, in particular, that his transfer to the remote correctional facility had made it impossible for him to have visits from his wife, two children and elderly disabled mother. On 19 July 2013 the District Court dismissed the applicant’s complaint on the grounds that his transfer to the remote correctional facility did not contradict domestic law and that the hindrance of his family members’ visits could not serve as a ground for transferring him to a similar correctional facility in his region. The applicant appealed against that decision. On 22 September 2014 the Moscow City Court upheld the District Court’s decision on the same grounds, noting that the three‑month time‑limit to appeal against the FSIN’s order had expired.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

49.  The Pre-trial Detention Act of 1995 (Federal Law on the Detention of Suspects and Defendants, no. 103-FZ of 15 July 1995) (Федеральный закон «О содержании под стражей подозреваемых и обвиняемых в совершении преступлений»), Section 33 § 1 provides for the separate detention of prisoners based on criteria such as gender, age (minors and adults), criminal records (first imprisonment or previously deprived of liberty), the stage of criminal proceedings (before or after conviction) and a criminal case (suspects and accused in one criminal case). Section 33 § 2 provides that persons suspected of murder, robbery, banditry and other serious crimes shall be detained separately from other detainees.

50.  Under Article 73 of the Code on the Execution of Sentences (“CES”), persons sentenced to deprivation of liberty shall serve their sentences in the federal entity (region) where they had their residence and where they were convicted. Derogations from this rule are possible only on medical grounds or in order to secure the safety of a detainee, or at his or her own request. Article 73 § 2 provides further that should there be no appropriate institution within the given region or if it proves impossible to place the convicted person in the existing penal institutions the convicted person is to be sent to the nearest penal institutions located on the territory of the said region, or, exceptionally, they may be sent to penal institutions located on the territory of the next closest region. Article 73 § 4 stipulates, inter alia, that persons who are sentenced to prison sentences for certain grave crimes, including banditry (Article 209 of the Criminal Code), are sent to serve their sentences in the order provided for by the federal penal authority.

51.  Under Article 81 § 1 of the CES, persons sentenced to deprivation of liberty should serve the whole term of the sentence, as a rule, in the same penitentiary facility, unless a court changes the type of a penitentiary facility. Article 81 § 2 provides that a sentenced person can be transferred to another penitentiary facility on medical grounds, in order to secure the safety of a detainee, in case of liquidation of penitentiary facility or for other exceptional reasons that would hinder further detention in the same facility.

52.  The Constitutional Court ruled as follows in its decision no. 1716‑O‑O of 16 December 2010 declaring inadmissible a complaint concerning the compatibility of Article 73 § 4 of the CES with the Russian Constitution:

“Article 73 § 4 of the CES is directed at the individualisation of punishment and differentiation of sentence conditions depending on the type of the crime and its dangerousness ... It thus creates a basis, in accordance with Article 43 of the Russian Criminal Code, for social justice, correction of a convict and prevention of new crimes.”

THE LAW

I.  JOINDER OF THE APPLICATIONS

53.  In view of the similarity between the applications in terms of the facts and some substantive issues they raise, the Court decides to join them and to examine them jointly in a single judgment.

II.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE APPLICANTS’ TREATMENT IN POLICE CUSTODY

54.  The applicants complained that they had been subjected to torture in police custody and that there had been no effective investigation into their complaints. 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.”

55.  The Government contested their allegations.

A.  Admissibility

56.  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

57.  The Court observes that after spending a day in police custody the applicants were found to have sustained abrasions and bruises, as recorded by the forensic medical expert (in respect of both applicants, see paragraphs 10-18 above), the detention facilities and medical institutions (in respect of the first applicant, see paragraphs 8-9 above). The expert found that the injuries recorded by her (as well as the first applicant’s injuries recorded in SIZO-1) could have been inflicted by a hard blunt object during the applicants’ stay in police custody. The first applicant’s wrist injuries could have been inflicted by handcuffs with further squeezing. The witness statements suggest that the first applicant had no injuries before his arrest and that he had injuries the next day, and that he was seen being delivered a blow, having shackles on his hands pushed on by the police officers and lying on the floor in one of the UBOP offices and was heard screaming at the UBOP premises (see paragraphs 21 and 34 above). There is no indication in the official records, in particular in the records of their arrest, that the applicants had any injuries when they were arrested. It should also be noted that both applicants, the other participants to their criminal proceedings and another detainee made similar assertions of violence involving police officers from the UBOP and even the same police officers (see paragraph 34 above).

58.  The Court observes further that the applicants, who were allegedly subjected to electric shocks through wires attached to various parts of their bodies including ears and genitals (see the description at paragraphs 6 and 23 above), had, among other injuries, small abrasions on the wrists and also the right hip and shank (the first applicant) and the left shank (the second applicant) (see paragraphs 8, 9, 11 and 14 above, compare with Lyapin v. Russia, no. 46956/09, §§ 33, 34, 36, 37, 39, 40 and 41, 24 July 2014 concerning the allegations of being subjected to electric shocks). The Court does not lose sight of the fact that the applicants’ examination by the forensic medical expert was carried out in the presence of one of the police officers who had allegedly subjected them to violence. This makes it doubtful whether the applicants’ examination was complete and accurate (according to the second applicant, he was not examined fully undressed, see paragraph 13 above), and explains that the applicants could not freely describe the police ill-treatment to the expert. Despite being alerted by the first applicant in March 2007 about the alleged use of electric shocks by the police officers, the investigating authority obtained the relevant forensic medical expert’s report only three years and eleven months later. According to that report, the expert did not find it possible to give an opinion as to whether the first applicant’s injuries could have been caused as a result of a contact with a current-carrying conductor, as was alleged by the applicant (see paragraph 18 above). No forensic medical examination was carried out in respect of the similar allegations by the second applicant. Instead, the investigating authority referred to a telephone conversation with the expert in rejecting the second applicant’s allegations (see paragraph 24 above).

59.  In view of the foregoing the Court considers that the applicants’ injuries could arguably have resulted from the violence allegedly suffered by the applicants at the hands of the police officers. The above factors are sufficient to give rise to a presumption in favour of the applicants’ accounts of events and to satisfy the Court that their allegations of police violence were credible.

60.  The Court further observes that the applicants’ consistent allegations of their injuries being the result of police violence were dismissed by the investigating authorities as unfounded based on the denial of the applicants’ ill-treatment by police officers S. and G. and investigator M. The investigators based their findings on the results of the pre‑investigation inquiry, which is the initial stage in dealing with a criminal complaint under Russian law and should normally be followed by the opening of a criminal case and the carrying out of an investigation if the information gathered has disclosed elements of a criminal offence (see Lyapin, cited above, § 129). The investigators’ decisions refusing to institute criminal proceedings were annulled by the investigating authorities as unsubstantiated and additional inquiries were ordered many times. The domestic courts upheld the refusals to institute criminal proceedings, which were later annulled by the investigating authorities because they were based on incomplete inquiries.

61.  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).

62.  The Court has no reason to hold otherwise in the present case, which involves credible allegations of treatment proscribed by Article 3. It finds that the State has failed to carry out an effective investigation into the applicants’ allegations of police violence. There has therefore been a violation of Article 3 of the Convention under its procedural limb.

63.  Given that the Government’s explanations, denying the applicants’ credible allegations of the police violence, were provided as a result of the superficial domestic inquiries falling short of the requirements of Article 3, the Court finds that they cannot be considered satisfactory or convincing. 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, §§ 83-85, 2 May 2017, and Ksenz and Others v. Russia, nos. 45044/06 and 5 others, §§ 102‑04, 12 December 2017).

64.  Having regard to the violence suffered by the applicants at the hands of the police officers, including being handcuffed and subjected to electric shocks and pushed on the handcuffs to inflict pain, with the aim of extracting their confessions to crimes, the Court finds that such treatment amounted to torture (see Lyapin, cited above, §§ 116-121). There has accordingly been a violation of Article 3 under its substantive limb.

III.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

65.  The applicants complained that the authorities had failed to carry out an effective investigation into their alleged ill-treatment in police custody in breach of Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

66.  The Government contested that argument.

67.  The Court notes that this complaint is linked to the issue raised under the procedural aspect of Article 3 of the Convention and must therefore likewise be declared admissible.

68.  Having regard to the finding of a violation of Article 3 under its procedural aspect on account of the respondent State’s failure to carry out an effective investigation (see paragraph 62 above), the Court considers that it is not necessary to examine this complaint separately under Article 13 (see Olisov and Others, cited above, § 92).

IV.  ALLEGED VIOLATION OF ARTICLE 3 ON ACCOUNT OF THE FIRST APPLICANT’S SOLITARY CONFINEMENT

69.  The first applicant complained that his solitary confinement between 20 May 2009 and 20 May 2012 had amounted to inhuman and degrading treatment in breach of Article 3 of the Convention.

70.  According to the Government, the applicant was held in solitary confinement in pre-trial detention facility SIZO-3 in the Voronezh region during the periods from 20 May 2009 to 3 June 2009, from 10 June 2009 to 22 July 2009 and from 12 August 2009 to 20 May 2012. The Government stated that the decision by the governor of SIZO‑3 on 20 May 2009 to place the applicant in solitary confinement had been made because of the lack of detainees who could be detained together with the applicant in compliance with Section 33 of the Pre-trial Detention Act on the separation of prisoners. Under Section 32 § 2 of the Act, no approval by the prosecutor had been required for that decision because the separation of prisoners could not otherwise be enforced. The Government argued that the applicant had received “individual consultations and psycho-correctional work” sessions.

71.  The applicant stated that he had received no explanation as to why he had been transferred from SIZO-1 (where he had been held with other prisoners and had not breached any rules) to SIZO-3 and placed in solitary confinement. He noted that solitary confinement was used as a punishment for disciplinary violations, and that he had thus been punished for an indefinite duration for a violation which he had never committed. On his admission to SIZO-3 his personal TV set had been seized and the provision of newspapers had been poor. His complaints to the prosecutor and the trial court about the conditions of his detention had been to no avail. According to the applicant, no monitoring of his physical and mental condition in order to ensure its compatibility with continued solitary confinement had been carried out.

A.  Admissibility

72.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

73.  Having regard to the certificates from the Russian Federal Penal Authority submitted by the Government (see paragraph 38 above), the Court finds that the first applicant was held in solitary confinement in pre‑trial detention facility SIZO-3 in the Voronezh region during three years from 20 May 2009 to 20 May 2012. He had four family visits in 2009, family visits once a month in 2010 (save in October when he had no visits and in December when he had two visits), seven family visits in 2011 and two in 2012. He did not have a TV set and his access to newspapers was scarce.

74.  The Government failed to demonstrate that the decision to place the first applicant in solitary confinement was accompanied by procedural safeguards guaranteeing the applicant’s welfare and the proportionality of the measure in view of its gravity. It has not been shown that the authorities assessed the first applicant’s circumstances, situation and behaviour and other relevant factors before placing him in solitary confinement, that they provided substantive reasons in support of their decision and that they had genuine grounds for extending the period of the applicant’s solitary confinement for up to three years and gave increasingly detailed and compelling reasons as time went by (see A.L. (X.W.) v. Russia, no. 44095/14, § 76, 29 October 2015). As regards the Government’s explanation that the provisions of the Pre-trial Detention Act on the separation of prisoners could not otherwise be enforced, it is not supported by any evidence. Even assuming that this was the case, it cannot alone justify the applicant’s solitary confinement.

75.  Furthermore, there is no indication in the logs of dates of “individual consultations and psycho‑correctional work” that the applicant’s physical and mental condition was assessed in order to ensure its compatibility with continued solitary confinement (see Ramirez Sanchez v. France [GC], no. 59450/00, § 139, ECHR 2006‑IX). Taking note also of the lack of any medical reports assessing the applicant’s condition in that respect, the Court considers that the Government failed to show that regular monitoring of the applicant’s physical and mental condition had taken place.

76.  The Court therefore finds that the first applicant’s solitary confinement during three years in SIZO-3 in Voronezh amounted to inhuman and degrading treatment. There has therefore been a violation of Article 3 of the Convention on that account.

V.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

77.  The applicants complained that their pre-trial detention had been excessively long and had not been based on relevant and sufficient reasons. They relied on Article 5 § 3 of the Convention, which provides:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

78.  The Government argued that the courts had given sufficient reasons for the applicants’ detention and that there was a high risk of absconding, re-offending and obstructing the administration of justice on the part of the applicants who had been charged initially with murder and later with a large number of robberies, thefts and other crimes committed by an organised group.

A.  Admissibility

79.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

80.  The Court notes that the period to be taken into consideration lasted from the date of the applicants’ arrest on 19 March 2007 and until the date of their conviction on 29 December 2010, continuing in so far as the first applicant is concerned from 23 August 2011, when the judgment was quashed in his respect, until his conviction on 17 October 2011 (see Solmaz v. Turkey, no. 27561/02, §§ 23-24 and 34, 16 January 2007). It therefore lasted for about three years and eleven months in respect of the first applicant and three years and nine months in respect of the second applicant.

81.  The Court has already, on a large number of occasions, examined applications against Russia raising similar complaints under Article 5 § 3 of the Convention and found a violation of that Article on the grounds that the domestic courts extended an applicant’s detention relying essentially on the gravity of the charges and using stereotyped formulae without addressing his or her specific situation or considering alternative preventive measures (see, among many others, Mamedova v. Russia, no. 7064/05, 1 June 2006; Pshevecherskiy v. Russia, no. 28957/02, 24 May 2007; Aleksandr Makarov v. Russia, no. 15217/07, 12 March 2009; Makarenko v. Russia, no. 5962/03, 22 December 2009; Romanova v. Russia, no. 23215/02, 11 October 2011; and Valeriy Samoylov v. Russia, no. 57541/09, 24 January 2012). In so far as the domestic courts in the present case referred in some orders for extension of the applicants’ detention to the victims and co‑accused allegedly fearing retaliation by the applicants, they did so without verifying the facts, without showing what the basis for those fears was and assessing their reasonableness. In relying on the risk of the applicants exerting pressure on the jurors the courts did not mention any specific facts (see Mikhail Grishin v. Russia, no. 14807/08, §§ 147-154, 24 July 2012).

82.  The Government have not put forward any fact or argument capable of persuading the Court to reach a conclusion in the present case different from its conclusion in the cases cited above. Accordingly, the Court considers that by failing to address specific facts or consider alternative preventive measures, the authorities extended the applicants’ detention on grounds which cannot be regarded as “sufficient”. In these circumstances it is not necessary to examine whether the proceedings were conducted with “special diligence”.

83.  There has accordingly been a violation of Article 5 § 3 of the Convention in respect of both applicants.

VI.  ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION

84.  The first applicant complained that the hearing on 14 September 2007 concerning the extension of his pre-trial detention had been held in his absence, and that his appeal against the detention order of 11 June 2008 had been examined on 11 September 2008 and therefore had not been decided speedily. Article 5 § 4 of the Convention reads as follows:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

85.  The Government stated that the applicant’s lawyer’s presence at the hearing on 14 September 2007 and at the appeal hearing on 11 October 2007 had ensured that the proceedings complied with the requirements of Article 5 § 4. The Government acknowledged that the applicant’s appeal against the detention order of 11 June 2008 had not been examined speedily.

86.  The first applicant argued that on 14 September 2007, after he had received medical assistance and his hospitalisation had been refused, he had remained in the courthouse and wished to participate at the hearing. The court, however, had not heard him before deciding whether to proceed with the hearing.

A.  Admissibility

87.  The Court notes that these complaints are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B.  Merits

88.  Noting that the first applicant’s lawyer was present at the appeal hearing on 11 October 2007 and even assuming that he was present at the hearing on 14 September 2007, the Court is not convinced by the Government’s argument that the proceedings complied with the requirements of Article 5 § 4. It remains unclear why – after the first applicant’s hospitalisation had been refused, he had remained at the courthouse and his lawyer had objected to holding the hearing in his absence – the Leninskiy District Court did not hear the applicant when deciding to proceed with the hearing in his absence due to his “health condition”. In the absence of any reasons such decision appears to be arbitrary. The Court also notes that the District Court took into account the applicant’s personality when deciding to prolong his detention (as was noted by the Voronezh Regional Court, see paragraph 29 above) while it is unclear how such assessment could be properly done in the applicant’s absence.

89.  In view of the foregoing the Court is not satisfied that the proceedings were adversarial and the principle of equality of arms was respected (see Graužinis v. Lithuania, no. 37975/97, § 31, 10 October 2000; and Mamedova, cited above, § 89).

90.  The Court further notes that it took the Supreme Court of the Russian Federation three months and one day to examine the applicant’s appeal against the Voronezh Regional Court’s extension order of 11 June 2008, and that the Government acknowledged that this had not been “speedy”. The Court considers that the appeal proceedings for the review of the lawfulness of the applicant’s pre-trial detention cannot be considered compatible with the “speediness” requirement of Article 5 § 4 (see Idalov v. Russia [GC], no. 5826/03, §§ 154-158, 22 May 2012).

91.  Therefore there has been a violation of Article 5 § 4 of the Convention in respect of the first applicant on account of his absence at the hearing concerning the extension of his pre-trial detention before the Leninskiy District Court on 14 September 2007, and on account of the failure of the Supreme Court of the Russian Federation to comply with the requirement of speedy review of the lawfulness of detention.

VII.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION IN RESPECT OF THE FIRST APPLICANT

92.  The first applicant complained that he had been sent to serve his sentence to the facility located more than 8,000 kilometres away from where his elderly disabled mother, wife and two children had lived. He relied on Article 8 of the Convention, which, in so far as relevant, reads 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.”

93.  The Government submitted that the first applicant’s transfer to a penal facility outside his place of residence had been lawful and reasonable. They stated that the first applicant had actively promoted the thieves’ customs and could thus exert destabilising influence on security measures and persuade other convicts and detainees to violate the regime of imprisonment, create conflict situations and commit unlawful acts. They also argued that there were no circumstances stipulated in Article 81 § 2 of the Code on the Execution of Sentences which would prevent the first applicant’s further detention in the penal facility in the Khabarovsk Region. The Government asserted that the first applicant could maintain family relations by exercising his right to receive visits and by using postal services.

94.  The first applicant disagreed with the Government. He stated that his family members had been unable to visit him in the Khabarovsk region, and that he had not had any telephone conversations with them. He asserted that the authorities had disregarded his personal circumstances, such as low income, poor state of health of his family members and practical difficulties to make phone calls due to the seven-hour time difference between Voronezh and the Khabarovsk region.

A.  Admissibility

95.  The Court considers 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

96.  The first applicant was sent to serve his sentence to the facility located more than 8,000 kilometres away from his family’s place of residence. The Court finds that this amounted to an interference with his right to respect for family life (see Polyakova and Others v. Russia, nos. 35090/09 and 3 others, §§ 80-82, 7 March 2017).

97.  The contested interference was based on Article 73 § 4 of the Code on the Execution of Sentences (see paragraph 50 above), which provided for an automatic exception to the general distribution rule in respect of a specific category of prisoners (in particular, those convicted of banditry punishable under Article 209 of the Criminal Code), as it empowered the Russian Federal Penal Authority to freely allocate an individual belonging to such category to a penal facility located anywhere in Russia irrespective of his or her place of residence or conviction (see Polyakova and Others, cited above, §§ 48 and 97). The domestic courts either simply referred to Article 73 § 4 of the Code on the Execution of Sentences or dismissed the first applicant’s arguments concerning the adverse impact of imprisonment in a remote penal facility on his family ties as irrelevant (see paragraphs 44, 46 and 48 above), failing to carry out a balancing exercise in order to conduct a genuine review of the proportionality of the impugned interference in the light of the criteria established by the Court’s case-law under Article 8 of the Convention (see Polyakova and Others, cited above, §§ 108-115).

98.  The Court previously found that the Russian domestic legal system did not afford adequate legal protection against possible abuses in the field of geographical distribution of prisoners. The applicants were deprived of the minimum degree of protection to which they were entitled under the rule of law in a democratic society (ibid., § 117). The relevant domestic law, in particular Article 73 § 4 of the Code on the Execution of Sentences, did not satisfy the “quality of law” requirement under Article 8 of the Convention (ibid., § 118).

99.  The Court finds no reason to reach a different conclusion in the present case. It follows that the interference with the first applicant’s right to respect for 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 his respect.

VIII.  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 133,000 euros (EUR) and the second applicant claimed EUR 90,000 in respect of non-pecuniary damage. The first applicant stated, inter alia, that his mental state had deteriorated as a result of the violations of his rights under the Convention. He submitted a letter from penal facility IK‑8 in the Khabarovsk region of 4 March 2015 that in 2014 a psychiatrist had diagnosed him with adaptation disorder and prescribed treatment.

102.  The Government stated that any award should be made in accordance with the case-law.

103.  Having regard to the violations of the Convention found in the present case and making its assessment on an equitable basis, the Court awards the first applicant EUR 60,000 and the second applicant EUR 50,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on those amounts.

B.  Costs and expenses

104.  The first applicant also claimed EUR 9,487 and the second applicant claimed EUR 8,519 for the costs and expenses incurred before the Court.

105.  The Government stated that any award should be made in accordance with the case-law.

106.  Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award EUR 4,520 to the first applicant, that is the sum of EUR 5,000, less EUR 850 received by way of legal aid from the Council of Europe, for his legal representation before the Court by Mr A. Buzunov, and EUR 370 for administrative, postal and translation expenses; and EUR 3,007 to the second applicant, that is EUR 645 for his legal representation before the Court by Mr Chernushkin, EUR 3,000, less EUR 850 received by way of legal aid from the Council of Europe, for his legal representation before the Court by Mr A. Buzunov, and EUR 212 for postal and translation expenses.

C.  Default interest

107.  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.  Decides to join the applications;

2.  Declares the applicants’ complaints concerning the alleged police violence, the lack of an effective investigation into the applicants’ complaints and the lack of effective domestic remedies in that respect, and the length of the applicants’ pre-trial detention, as well as the first applicant’s complaints concerning his solitary confinement, the judicial review of the lawfulness of his pre-trial detention and the remote place for serving his prison sentence, admissible;

3.  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 in police custody, and a violation of Article 3 of the Convention under its procedural limb in that no effective investigation into the applicants’ complaints was carried out by the authorities;

4.  Holds that there is no need to examine the applicants’ complaint concerning the lack of an effective investigation into their allegations of police violence separately under Article 13 of the Convention;

5.  Holds that there has been a violation of Article 3 of the Convention on account of the first applicant’s solitary confinement;

6.  Holds that there has been a violation of Article 5 § 3 of the Convention in respect of both applicants;

7.  Holds that there has been a violation of Article 5 § 4 of the Convention in respect of the first applicant on account of his absence at the hearing on 14 September 2007 and on account of the length of the appeal proceedings in relation to the detention order of 11 June 2008;

8.  Holds that there has been a violation of Article 8 of the Convention in respect of the first applicant;

9.  Holds

(a)  that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  to Mr Bykovtsev EUR 60,000 (sixty thousand euros), plus any tax that may be chargeable, in respect of non‑pecuniary damage;

(ii)  to Mr Prachev EUR 50,000 (fifty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii)  to Mr Bykovtsev EUR 4,520 (four thousand five hundred and twenty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; and

(iv)  to Mr Prachev EUR 3,007 (three thousand and seven euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(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;

10.  Dismisses the remainder of the applicants’ claims for just satisfaction.

Done in English, and notified in writing on 21 May 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıAlena Poláčková
Deputy Registrar President

 

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