CASE OF GABBAZOV v. RUSSIA

THIRD SECTION

CASE OF GABBAZOV v. RUSSIA

(Application no. 16831/10)

JUDGMENT

STRASBOURG

5 March 2019

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

In the case of Gabbazov 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 Stephen Phillips, Section Registrar,

Having deliberated in private on 5 February 2019,

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

PROCEDURE

1. The case originated in an application (no. 16831/10) 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 a Russian national, Mr Azat Gusmanovich Gabbazov (“the applicant”), on 21 February 2010.

2. The applicant was represented by O.V. Borisov and Mr S.V. Zolotov, lawyers practising in Ulyanovsk and Moscow, respectively. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the 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 29 September 2016 notice of the application was given to the Government.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1979 and lives in Ulyanovsk.

A. The applicant’s arrest and alleged ill-treatment in police custody

5. At around 8.10 p.m. on 16 June 2007 the applicant and K. were arrested on suspicion of robbery. They were taken to the criminal investigation unit of the Kotlovka district police department for the South‑West Administrative Circuit of Moscow (ОУР ОВД по району Котловка ЮЗАО г. Москвы).

6. The applicant’s account of subsequent events at the police station is the following. During the night of 16 June 2007 the applicant was insulted and beaten up by police officers A.A. and M., who requested that he confess to the robbery. He lost consciousness several times. The applicant continued to be physically assaulted in the presence of investigator A.I. from the South‑West Administrative Circuit police, who threatened him with imprisonment. The applicant refused to sign any confession statements. The police officers coerced K. to confess to the robbery, physically assaulting him and making him see the applicant’s beatings. The applicant was threatened with physical retaliation if he complained about their conduct.

7. At 7.20 a.m. on 17 June 2007 investigator A.I. drew up a record of the applicant’s arrest for robbery, which was signed by the applicant in the absence of a lawyer. The record indicates that the applicant was arrested at 7.20 a.m. that day.

8. At 11.05 a.m. the applicant was placed in a South‑West Administrative Circuit temporary detention facility (IVS).

9. On 18 June 2007 the Gagarinskiy District Court of Moscow remanded the applicant in custody.

10. On 21 June 2007 the applicant was placed in a Moscow pre‑trial detention facility (IZ-77/2).

B. The applicant’s injuries

11. On 17 June 2007 the applicant was examined by a doctor of Moscow Town Hospital no. 33 at the request of the on-duty officer of the Kotlovka district police station. According to the hospital records, the applicant had (i) bluish bruises on his face, chest, back and both legs measuring between 6 x 6 cm and 3 x 6 cm; and (ii) an abrasion on his back measuring 1.5 x 6 cm. He was diagnosed with multiple contusions and abrasions on his head, chest and upper limbs.

12. According to records from the IVS and IZ-77/2, of 17 and 21 June 2007, respectively, the applicant had multiple contusions and abrasions on his head, chest and upper limbs.

C. Pre-investigation inquiry and refusal to institute criminal proceedings

1. Investigative committee

13. On 13 August 2007 the applicant lodged a complaint with the internal security department of the Ministry of Internal Affairs in Moscow, allegedly as soon as he had stopped fearing for his life.

14. During the two years which followed, investigators of the Zyuzinskiy district investigation unit of the investigative committee for Moscow carried out a pre-investigation inquiry and issued refusals to open a criminal case (dated 14 September 2007, 24 February 2008 and 2 May 2009) pursuant to Article 24 § 1 (1) or (2) of the CCrP, either because there was no evidence that a crime had been committed or because none of the elements of a crime under Article 286 § 3 of the Criminal Code (abuse of powers with use of violence) were present in respect of the actions of police officers A.A. and M. In doing so they relied on the police officers’ and investigator A.I.’s explanations denying any wrongdoing. They did not interview the applicant.

15. According to explanations by the police officers received during the pre‑investigation inquiry, on 16 June 2007 they took the applicant – who according to operative information had committed a robbery – to the police station, where an “explanation” was received from him concerning the crime, without any physical or psychological pressure being exerted on him.

16. The investigators’ decisions refusing to open a criminal case, except for the most recent decision of 2 May 2009, were overruled by the investigators’ superiors and an additional inquiry was carried out. On 15 January 2008 the investigator’s refusal of 14 September 2007 was overruled on the grounds that it had been premature and based on an incomplete inquiry, as it did not contain an explanation of the applicant’s injuries. On 23 April 2009 the investigator’s refusal of 24 February 2008 was overruled as premature.

17. The investigator’s conclusions in the most recent refusal to open a criminal case dated 2 May 2009 were generally similar to the previous decisions. It also stated that the applicant had been convicted of several crimes and had been sentenced to eight years’ imprisonment, and that the police officers had acted in accordance with their duties.

2. Judicial review of the investigators’ decisions under Article 125 of the Code of Criminal Procedure

18. The applicant appealed against the investigator’s decisions of 24 February 2008 and 2 May 2009. His appeal against the former decision was not examined by domestic courts, which terminated the proceedings in view of the annulment of the decision by the investigating authority (decision of 24 April 2009 of the Gagarinskiy District Court of Moscow, as upheld on 28 October 2009 by the Moscow City Court). On 24 November 2010 the Gagarinskiy District Court of Moscow dismissed the applicant’s second appeal, holding that the decision of 2 May 2009 was lawful and well‑grounded. In particular, the court noted that the applicant’s arguments concerning his alleged ill-treatment by police officers A.A. and M. had been examined during his criminal trial and dismissed as unconfirmed. On 6 June 2011 the Moscow City Court dismissed the applicant’s appeal and fully endorsed the first‑instance court’s decision.

D. Criminal proceedings against the applicant

19. On 11 December 2007 the Zyuzinskiy District Court of Moscow convicted the applicant of robbery and banditry, and sentenced him to eight years’ imprisonment.

20. At trial, the applicant pleaded not guilty. He stated that on 16 June 2007 he had been arrested, driven to a police station and physically assaulted by police officers. The trial court dismissed the applicant’s allegations of ill-treatment by the police. It relied mainly on the investigator’s refusal to open a criminal case against the police officers of 14 September 2007 (subsequently overruled), noting there was no objective information showing that physical violence had been used against the applicant.

21. The applicant’s co-accused, K., did not confirm his confession statements at the preliminary investigation, explaining that he had given them because police officers had physically assaulted him and had made him see the applicant’s beatings. The trial court dismissed his arguments and based its judgment on K.’s confession statements given at the preliminary investigation and other evidence.

22. On 27 February 2008 the Moscow City Court upheld that judgment on appeal, holding that the applicant’s allegations that unlawful investigative techniques had been used had not been confirmed.

E. Statements by police officer M. and investigator A.I.

23. The Government submitted statements collected by lieutenant colonel S. from the internal security department of the Ministry of Internal Affairs in Moscow on 17 November 2016 from police officer M. and investigator A.I., in which both M., presently a senior operational police officer of the Criminal Search Department for the South-West Administrative Circuit of Moscow, and A.I., presently an investigator of the Department for the Fight against Organised Crime for the South-West Administrative Circuit of Moscow, denied any unlawful conduct and ill‑treatment in respect of the applicant after the applicant’s arrest in 2007.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

24. The applicant complained that he had been subjected to torture and inhuman treatment by the police officers under the guidance or with the connivance of the investigator and that the State had failed to conduct an effective investigation into his complaints. He 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.”

25. The Government contested the allegations as groundless. They stated that the applicant had received minor injuries which normally healed within several days. He had not complained about the police violence to the hospital doctor on 17 June 2007, to the staff of the detention facilities on arrival, to the investigator who had drawn the record of his arrest or the court which had ordered his remand in custody. His criminal complaint had only been lodged on 13 August 2007. This had made it impossible for the authorities to carry out an effective investigation and to establish beyond reasonable doubts the responsibility of the State for his injuries.

26. The applicant noted that the Government had not provided any explanation to his injuries.

A. Admissibility

27. The Government argued that the application did not comply with the six months requirement and was therefore inadmissible.

28. The Court notes that in a letter of 21 February 2010 the applicant complained that his rights under Articles 3 and 13 of the Convention had been violated, submitting, in particular, a copy of the decision of 24 April 2009 of the Gagarinskiy District Court of Moscow and other documents in the proceedings brought by him to appeal against the investigator’s refusal to open a criminal case against the police officers of 24 February 2008. The latter decision was overruled by the investigating authority on 23 April 2009 and the additional inquiry was carried out. The applicant’s appeal against the District Court’s decision of 24 April 2009 was examined by the Moscow City Court on 28 October 2009 (see paragraphs 14, 16 and 18 above).

29. It is apparent that the application was introduced while the proceedings were pending. The Government’s objection concerning the six‑month time-limit is therefore without merit and should be dismissed.

30. The Court further notes that the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

31. The Court observes that after spending a night in police custody, the applicant was found to have sustained multiple contusions and abrasions to his head, chest and upper limbs (see paragraphs 11-12 above). The Court considers that the injuries could arguably have resulted from blows allegedly delivered to the applicant’s body by the police officers (see, as regards the assessment of bruises and abrasions by forensic medical experts in police ill-treatment cases, Ksenz and Others v. Russia, nos. 45044/06 and 5 others, §§ 14, 74, 81 and 96, 12 December 2017, and Sergey Ryabov v. Russia, no. 2674/07, §§ 15 and 40, 17 July 2018).

32. The above factors are sufficient to give rise to a presumption in favour of the applicant’s account of events and to satisfy the Court that the applicant’s allegations of ill-treatment in police custody were credible.

33. The fact that during the night after his arrest the applicant was held in police custody and interviewed by the police officers about the crime, of which he was suspected, without his arrest being recorded and without being able to avail himself of access to a lawyer and other rights of suspects in criminal proceedings, attests to the applicant’s particular vulnerability vis‑à‑vis the police officers. It weighs heavily in favour of the applicant’s account of events and makes the presumption of the State’s responsibility for injuries occurring during the police custody stronger (see Olisov and Others v. Russia, nos. 10825/09 and 2 others, §§ 74-79, 2 May 2017, and Sitnikov v. Russia, no. 14769/09, §§ 31-35, 2 May 2017).

34. As regards the Government’s argument that the applicant delayed the submission of the criminal complaint (see paragraph 25 above), it is entirely conceivable that this could be due to the fact that the applicant was intimidated after the ill-treatment and threats received from the police officers and investigator (see paragraph 6 above).

35. In any event, the authorities were alerted to the possibility that violence had been used against the applicant on 17 June 2007, when the applicant’s multiple injuries were recorded by the hospital doctor and the temporary detention facility. Thus, even without an express complaint from the applicant, a duty to investigate had already arisen at that stage. This is so because Article 3 of the Convention requires an official investigation in cases where there are sufficiently clear indications that ill‑treatment might have occurred (see Velev v. Bulgaria, no. 43531/08, § 60, 16 April 2013).

36. The Court observes that the applicant’s allegations of his injuries being the result of the ill-treatment by the police officers in the presence of the investigator were dismissed by the investigative committee on the basis of the denial of the applicant’s ill-treatment by those same police officers and investigator. The investigative committee did not interview the applicant and K., who had allegedly witnessed the applicant’s beatings, and did not order the applicant’s forensic medical examination. It offered no explanation to the applicant’s injuries, as was acknowledged by it (see paragraph 16 above). Its most recent decision was similar to the previous decisions which had been annulled because they had been based on incomplete inquiries. In upholding that decision in the proceedings under Article 125 of the Code of Criminal Procedure the domestic courts relied on the dismissal of the applicant’s allegations of police ill-treatment by the trial court in the criminal proceedings against him (see paragraph 18 above), while the trial court in doing so had relied on the subsequently overruled refusal to institute criminal proceedings against the police officers (see paragraphs 20-21 above). The domestic courts thus missed the opportunity to assess whether the investigation had complied with the requirements of Article 3 of the Convention in order to provide the applicant redress at the domestic level.

37. The investigative committee based its 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 v. Russia, no. 46956/09, § 129, 24 July 2014). 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).

38. The Court has no reason to hold otherwise in the present case, which involves credible allegations of ill-treatment. It finds that the investigative committee has failed to carry out an effective investigation into the applicant’s allegations of police ill-treatment, as required by Article 3 of the Convention.

39. Given that the Government’s denial of the State’s responsibility for the applicant’s injuries was provided as a result of the superficial domestic inquiries’ falling short of the requirements of Article 3 of the Convention, the Court holds that the Government have failed to discharge their burden of proof and produce evidence capable of casting doubt on the applicant’s account of events, which it therefore finds established (see Olisov and Others, cited above, §§ 83-85, and Ksenz and Others, cited above, §§ 102‑04).

40. Having regard to the material in the case-file, the Court finds that the applicant was subjected to inhuman and degrading treatment at the Kotlovka district police station in Moscow (see Gorshchuk v. Russia, no. 31316/09, § 33, 6 October 2015; Aleksandr Andreyev v. Russia, no. 2281/06, §§ 56‑62, 23 February 2016; and Leonid Petrov v. Russia, no. 52783/08, §§ 65-76, 11 October 2016).

41. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 3 of the Convention under its substantive and procedural limbs.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

42. The applicant complained that the authorities had failed to carry out an effective investigation into his 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.”

43. The Government contested that argument.

44. 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.

45. 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, the Court considers that it is not necessary to examine this complaint separately under Article 13 (see Olisov and Others, cited above, § 92).

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

46. 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

47. The applicant claimed 100,000 euros (EUR) in respect of non‑pecuniary damage suffered by him as a result of a violation of his rights guaranteed by Article 3 of the Convention.

48. The Government stated that any award of just satisfaction should be made in accordance with the Court’s case-law.

49. The Court awards the applicant EUR 25,000 in respect of non‑pecuniary damage.

50. The Court notes that no explanation was offered for a request by the applicant’s representative, Mr O.V. Borisov, that the award in respect of non-pecuniary damage be paid directly into Mr Borisov’s bank account. That request should therefore be dismissed.

B. Costs and expenses

51. The applicant also claimed EUR 4,120 for the legal services of Mr Borisov before the Court in accordance with a legal services agreement concluded between them and a receipt confirming the relevant payment.

52. The Government contested the claim.

53. Regard being had to the documents in its possession (indicating, in particular, that the application form had been lodged before Mr Borisov was authorised to represent the applicant) and to its case‑law, the Court considers it reasonable to award the sum of EUR 2,000 covering costs for the proceedings before the Court.

54. As no explanation was offered for a request that the award in respect of costs and expenses be paid directly into Mr Borisov’s bank account, that request should be dismissed.

C. Default interest

55. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 3 of the Convention under its substantive and procedural limbs;

3. Holds that there is no need to examine separately the complaint under Article 13 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, 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) EUR 25,000 (twenty-five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,000 (two thousand 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;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 5 March 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stephen PhillipsAlena Poláčková
RegistrarPresident

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