CASE OF KHUDYAKOV v. RUSSIA

THIRD SECTION

CASE OF KHUDYAKOV v. RUSSIA

(Application no. 54422/08)

JUDGMENT
 

STRASBOURG

18 May 2021

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

In the case of Khudyakov v. Russia,

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

Darian Pavli, President,
Dmitry Dedov,
Peeter Roosma, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 54422/08) 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 a Russian national, Mr Pavel Mikhaylovich Khudyakov (“the applicant”), on 25 August 2008;

the decision to give notice of the application to the Russian Government (“the Government”);

the parties’ observations;

Having deliberated in private on 13 April 2021,

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

INTRODUCTION

1.  The case concerns the applicant’s alleged ill-treatment at the Drug Control Service which allegedly resulted in him having to jump out of the window of an office at those premises, and the lack of an effective investigation into his allegations of duress. It also concerns the applicant’s allegations that he was handcuffed and put under constant supervision in a hospital ward for three days in August 2007.

THE FACTS

2.  The applicant was born in 1975 and lives in Severodvinsk. He was granted legal aid and was represented by Ms O. Preobrazhenskaya, a lawyer practising in Strasbourg.

3.  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.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.The applicant’s arrest, alleged ill-treatment and ensuing events

5.  At 11.30 p.m. on 10 August 2007 the applicant and Mr S. were apprehended by officers of the Severodvinsk Department of the Federal Drug Control Service of the Russian Federation (hereinafter “the Drug Control Service”) on suspicion of involvement in drug trafficking.The applicant’s account of events

6.  According to the applicant, five to six Drug Control Service officers knocked him down and severely beat and kicked him in the face and body during the arrest; they handcuffed him, took him to a car where the beatings continued, and transferred him to the premises of the Drug Control Service in Severodvinsk. As a result, his nose was injured, a tooth was broken and his lips were split, and he had an avulsed wound near his right ear.

7.  Shortly after midnight on 11 August 2007 he was taken to an office on the first floor of the Drug Control Service building. He remained handcuffed and was beaten again by the officers, who encouraged him to confess and threatened him with rape and murder. The applicant refused to confess.

8.  At 12.30 a.m. his personal search was conducted in the presence of attesting witnesses. Once the witnesses had left the office, the applicant was again severely beaten. Unable to withstand the torture, he broke free and jumped out of the window. He broke two windows and fell to the ground.The authorities’ account of events

9.  According to the official account, the officers “blocked” the applicant and “held him back” during the arrest, as he resisted arrest and injured the leg of one of the policemen. He was then escorted to the premises of the Drug Control Service. Between 12.30 and 12.45 a.m. on 11 August 2007 he was searched in the presence of two attesting witnesses.

10.  The applicant then informed the Drug Control Service officers that he wished to provide unspecified information to the police, on the condition that only one police officer remain in the office. Once Officer Koz. had left the office and only Officer Os. remained with the applicant, the applicant jumped out of the window in an attempt to run away.

11.  Officer Os. and Officer Koz., who returned to the office, saw the applicant on the ground, screaming. At 1.03 a.m. they called for an ambulance, and at 1.54 a.m. the applicant was taken to Town Hospital no. 2 of Severodvinsk (“the town hospital”).Events between 11 and 17 August 2007 and the applicant’s injuries

12.  The ambulance team diagnosed the applicant with a closed fracture of the thoracic spine, dysfunction of the lower extremities, first to second‑degree traumatic shock, and cut wounds to the right forearm.

13.  According to the hospital admission records of 11 August 2007, as well as the medical records of 13 and 17 August 2007, the following injuries had been found on the applicant: first-degree compression fractures of the first and second lumbar vertebrae, closed fractures of the L1-4 transverse processes on the right side, and three cut wounds to both forearms. The doctors established that there was no disruption of spinal cord function.

14.  According to the applicant, between 11 and 13 August 2007 he was handcuffed to a bed in a ward at the hospital and constantly supervised by a Drugs Control Service officer. The officer refused to let the applicant inform his relatives about his apprehension and injuries.

15.  According to the available documents (see paragraph 25 below), the applicant remained in the ward alone, he was not handcuffed, Drug Control Service officers supervised him until 1 p.m. on 11 August 2007, and his contact with his family was not restricted. According to hospital records, every day between 11 and 17 August 2007 the hospital personnel examined the applicant, gave him medication, and his condition steadily improved. Once his state of health allowed for this, he was fitted with a plaster jacket on 16 August 2007. On 17 August 2007 the applicant was able to walk.

16.  On that date he was released from hospital in a satisfactory condition. He was transferred to firstly the Severodvinsk Town Court (“the Town Court”) and then the remand prison; subsequently he was taken to the prison hospital in an ordinary prison van. On the same date the Town Court ordered his arrest and detention pending an investigation.

17.  On 2 June 2008 a forensic expert established that his injuries (as recorded by the town hospital doctors, see paragraph 13 above) could have been inflicted shortly before his admission to hospital. The compression fractures had been caused by impact from solid blunt objects, constituted moderate health damage, and could have resulted from a fall from a height. The cut wounds could have been caused by impact from sharp objects.Criminal proceedings against the applicant

18.  By the judgment of 21 December 2007 of Town Court, as amended on 18 March 2008 by the Arkhangelsk Regional Court (“the Regional Court”), the applicant was convicted of one count of selling drugs and sentenced to six years’ imprisonment. The remaining charges initially brought against him were dropped, and his claim for rehabilitation and compensation was subsequently granted in part.

19.  During the applicant’s trial Mr S. stated that “a psychological attack” against the applicant had “taken place” on 10 August 2007 during the arrest. Attesting witness K. submitted that on that date the applicant’s nose had been injured, his clothes had been dirty and his conduct had been “inadequate”, and that no pressure had been put on him during the search.Inquiry into events of 10-13 August 2007Attempts to bring criminal proceedings against the Drug Control Service officers on account of the ill-treatment

20.  Since August 2007 the applicant had on several occasions complained to the local prosecutor’s office that he had been injured and ill‑treated.

21.  On 14 September 2007 the deputy head of the Severodvinsk Investigative Department of the Arkhangelsk Region refused to bring criminal proceedings against Officers Koz. and Os., as there was no indication that a criminal offence had been committed. With reference to statements of the two officers, one attesting witness and the material from the internal inquiry by the regional Drug Control Service the investigator found that the applicant, while under the influence, had been inclined to take decisive action and had taken the opportunity to flee from arrest by jumping out of the window; and that no pressure had been put on him.

22.  That decision was subsequently annulled as the inquiry was found incomplete. Between 4 February 2008 and 22 August 2011 the investigators issued a total of eight more refusals to initiate criminal proceedings. Each time they concluded that all his recorded injuries had been caused by his fall from the window. In addition to the above evidence, as well as the forensic report, all or some of the decisions referred to the following evidence:

(a)  Statements by the two attesting witnesses, K. and Chu., who noted that applicant’s conduct during his personal search had been “inadequate”, possibly as a result of intoxication; that they had not seen any injuries on him; and that no pressure had been used against him in their presence;

(b)  A statement by S. (obtained in 2008), who said that he had seen the applicant being beaten by several officers during the arrest, which caused him injuries (the same as in the applicant’s description of the events in paragraph 8 above). He had also heard the applicant being beaten at the premises of the Drug Control Service.

23.  All of the refusals were set aside by superior prosecutors, including on the courts’ instructions, on account of the need to conduct more interviews with the attesting witnesses and the arresting officers and to establish the circumstances of the applicant’s arrest and transfer to the premises of the Drug Control Service.

24.  On 4 May 2012 the investigator once again declined to open criminal proceedings, based on the inspection of the scene at the premises of the Drug Control Service conducted in March 2012 and the statements of: (a) three more arresting officers who stated that the actions of the applicant “had been blocked”; (b) a duty doctor at the town hospital who stated the applicant had not had any visible injuries on admission, apart from cuts on his forearms, had not complained of any duress and had asked the doctor not to inform his family about his admission; and (c) attesting witness K. who stated that during the personal search the applicant’s clothes had been clean, neat and undamaged, that he had not had any injuries, that his behaviour had been normal, and that the officers had not used force against him.Inquiry into the events of 11 to 13 August 2007, held in 2012

25.  On 22 February 2012 an investigator of the Severodvinsk investigative department, in reply to a request for information from the Government, conducted an inquiry in relation to the applicant’s allegations that he had been supervised and handcuffed at the hospital ward and refused contact with his family between 11 and 13 August 2007. The investigator refused to initiate criminal proceedings, for lack of a criminal event. He found that the applicant’s allegations contradicted his medical record, as well as: (a) statements of two Drug Control Service officers who specified that they had taken turns remaining with the applicant in the hospital from the time of his hospitalisation until 1 p.m. on 11 August 2007, and denied using handcuffs on him or in any way restricting his freedom of movement; and (b) statements of four medical professionals working at the hospital. None of them had seen any handcuffs being used or any restrictions applied to the applicant, who had been alone in the hospital ward in August 2007.Civil action in respect of the ill-treatment

26.  In 2008 the applicant brought civil proceedings against the Ministry of Finance, claiming compensation for the alleged ill-treatment and for the injury he had had to inflict on himself as a result of it. He further argued that he had been handcuffed and supervised at the hospital by the policemen “for several days” and had been unable to contact his relatives, that the conditions of his transfer of 17 August 2007 had been inappropriate, and that his detention as of that date had been unlawful.

27.  On 19 January 2009 the Town Court rejected the allegations of ill‑treatment and unlawful detention from 17 August 2007 onwards and found, with reference to the medical documents, that the applicant had been fit enough to be detained after being released from hospital. It did not address his claims related to the alleged handcuffing and other events of 11‑13 August 2007.

28.  In his grounds of appeal against the judgment the applicant reiterated his arguments concerning his allegedly unlawful arrest, ill‑treatment and detention from 17 August 2007 onwards. On 9 April 2009 the Regional Court in a summary way endorsed the lower court’s findings.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

29.  For the relevant provisions of domestic law on the prohibition of torture and other ill-treatment and the procedure for examining a criminal complaint, see Lyapin v. Russia, no. 46956/09, §§ 96-102, 24 July 2014.

THE LAWALLEGED VIOLATION OF ARTICLEs 3 and 13 OF THE CONVENTION on account of ill-treatment and the lack of an effective investigation

30.  The applicant complained under Article 3 that he had been ill‑treated by the Drug Control Service officers, and under Articles 3 and 13 that the domestic investigation in respect of his ill-treatment complaint had been ineffective. The relevant Convention provisions read as follows:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment ...”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority ...”Article 3 of the ConventionAdmissibility

31.  The Court notes that this complaint is neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.Merits

(a)   The parties’ submissions

32.  The applicant stated that he had not insisted on his bruises being recorded upon his admission to hospital owing to his poor state of health on that night and to his fear of reprisals. His brother (according to a statement obtained by the defence in 2012), attesting witness K. and Mr S. had seen bruises and other injuries on him. The investigation had been deficient.

33.  The Government argued that, as the applicant had actively resisted arrest, the Drug Control Service officers had had to use physical force against him. While at the premises of the Drug Control Service, the applicant, under the influence of drugs, had attempted to escape by jumping out of the window. No injuries evidencing ill-treatment had been recorded on him, or noticed by his relatives who had visited him at the hospital.

(b)   The Court’s assessment

(i)      Alleged violation of Article 3 under its procedural limb

34.  The Court considers that the applicant’s description of the alleged ill-treatment, along with the town hospital’s medical records of his injuries ‒ which included closed fractures whose origin was not established by the relevant expert until June 2008 ‒ may be regarded as raising a reasonable suspicion that his injuries were caused during his arrest and while he was in police custody. An investigation into his allegations was therefore required (see Andreyevskiy v. Russia, no. 1750/03, § 54, 29 January 2009).

35.  The Court notes that as a result of the repeated refusals to open a criminal case in respect of the applicant’s arrest and the subsequent events preceding his fall from the window of the office at the Drug Control Service, the investigating authorities never conducted a proper criminal investigation. The Court reiterates 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 (see Lyapin, cited above, §§ 129, 132 and 135-36).

36.  The Court does not have a reason to hold otherwise in this case. It further notes that the forensic medical examination which provided the first conclusions as to the origins of the applicant’s injuries was carried out ten months after the events (see paragraph 17 above). Arresting officers, an eyewitness to the arrest and one of the attesting witnesses were interviewed one to five years after the events; the site inspection was conducted in 2012 (see paragraphs22 and 24 above). The issue of whether any force was used against the applicant during his arrest and transfer was not addressed in any detail by the investigators, despite clear and repeated instructions from the courts and the higher investigating authorities (see paragraph 23 above).

37.  The Court concludes that the Russian authorities failed to carry out an effective investigation into the applicant’s allegations of police violence, and did not take all reasonable steps to ascertain the circumstances in which he had fallen from the window of the office at the Drug Control Service (see Leonid Petrov v. Russia, no. 52783/08, §§ 79-80, 11 October 2016; see also, mutatis mutandis, Kleyn and Aleksandrovich v. Russia, no. 40657/04, § 58, 3 May 2012; and Fanziyeva v. Russia, no. 41675/08, § 53, 18 June 2015).

38.  Accordingly, there has been a violation of Article 3 of the Convention under its procedural limb.

(ii)    Alleged violation of Article 3 under its substantive limb

39.  The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence (see, among many other authorities, Keller v. Russia, no. 26824/04, § 114, 17 October 2013). To assess such evidence, the Court adopts the standard of proof “beyond reasonable doubt” (see Bouyid v. Belgium [GC], no. 23380/09, § 82, 28 September 2015).

40.  Firstly, the injuries supporting the allegations of ill-treatment were not found on the applicant. The medical certificate issued by the hospital immediately after the fall indicated that he had a bruise on his head and cuts on his forearms– injuries which, as subsequently established by the forensic expert, had been caused by the fall (see paragraphs12, 13 and 17above). The doctors of the town hospital who examined the applicant on several occasions did not record or notice any injuries other than those related to his fall (see Kleyn and Aleksandrovich, cited above, § 64; see also, by contrast, Keller, cited above, §§ 25 and 116-17; Fanziyeva, cited above, §§ 22 and 71). While it is conceivable that on the date of his admission to hospital he could not insist that any additional injuries be recorded, the Court finds it significant that the applicant in his multiple complaints to authorities never complained of the inaccuracy of his medical records or the doctors’ refusal to record signs of ill-treatment.

41.  Secondly, the witness statements referred to by the applicant appear inconclusive and partially contradictory. The account of his arrest by S. ranged from a “psychological attack” to a physical assault on the applicant (compare paragraphs 19 and 22 above). The attesting witness K. produced three different accounts of the applicant’s appearance and behaviour on the evening of 10 August 2007: he stated during the trial that the applicant had had bruises on his face; during the inquiry in 2008 he said that the applicant’s behaviour had been inadequate and his clothes had been dirty; and in 2012 he insisted that the applicant had had no visible injuries and had behaved normally, and that his clothes had been clean (see paragraphs 19, 22 and 24 above). In view of these discrepancies, which remained unexplained at domestic level and in the parties’ observations, the Court cannot accept any of those accounts as credible. As regards the statement of the applicant’s brother obtained in 2012 (see paragraph 32 above), the Court cannot attach any significant weight to it, owing to its belated character.

42.  The Court therefore considers that there is an insufficient factual and evidentiary basis on which to conclude that the applicant tried to escape in order to flee ill-treatment by the Drug Control Service officers. The evidence before the Court does not enable it to find beyond reasonable doubt that he was subjected to treatment contrary to Article 3.

43.  The Court further notes that the applicant did not claim that the police had been negligent in taking reasonable and adequate steps to prevent him from escaping (see, mutatis mutandis, Kleyn and Aleksandrovich, cited above, § 50; see also, by contrast, Keller, cited above, §§ 75 and 88-91).

44.  Thus, the Court cannot establish a substantive violation of Article 3 of the Convention in respect of the applicant’s alleged ill-treatment during his arrest or while in police custody.Article 13 of the Convention

45.  The Court notes that the applicant’s complaint under Article 13 is linked to the issue raised under the procedural aspect of Article 3 of the Convention, and must therefore be declared admissible. However, having regard to its findings in paragraphs 35-38 above, the Court considers that it is not necessary to examine this complaint separately under Article 13.OTHER ALLEGED VIOLATIONS OF THE CONVENTIONAs regards the events between 11 and 17 August 2007

46.  The applicant complained under Articles 3 and 13 (cited above) and Article 5 §§ 1 and 5 that between 11 and 13 August 2007 he had been handcuffed to a bed and constantly supervised by a police officer at the town hospital, in breach of Articles 3 and 5; that the medical care he had received in hospital had not been adequate; and that the conditions of his transfer on 17 August 2007 had been incompatible with his state of health. On 25 September 2009 he complained that his claim for compensation for damage caused by unlawful detention between 11 and 13 August 2007 had not been examined. In his observations the applicant stated that he had been satisfied with the quality of the medical assistance he had received in hospital, and maintained the remainder of his complaints.

47.  The Government disagreed.

48.  The Court notes that the applicant did not maintain the complaint about quality of the medical assistance he received from 11 to 17 August 2007. Accordingly, he may be regarded as no longer wishing to pursue this complaint, within the meaning of Article 37 § 1 (a) of the Convention, and the Court finds no special circumstances regarding respect for human rights which require the examination of the complaint (Article 37 § 1 in fine). Therefore, the application in this part should be struck out of the list.

49.  As regards the remainder of the complaints, having regard to the facts of the case, the submissions of the parties, and its own above findings, the Court considers that it has examined the main legal issues raised by the applicant in his application and that there is no need to give a separate ruling on the above complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).The applicant’s remaining complaints

50.  Lastly, the applicant lodged several other complaints referring to Articles 3, 5 § 5, 6 §§ 1 and 2 and Article 8 of the Convention, Article 1 of Protocol No. 1 and Article 3 of Protocol No. 7 to the Convention.

51.  Having regard to all the material in its possession, and in so far as these complaints fall within the Court’s competence, the Court finds that they either are lodged out of time or do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected pursuant to Article 35 §§ 1, 3 (a) and 4 of the Convention.APPLICATION OF ARTICLE 41 OF THE CONVENTION

52.  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.”Damage

53.  The applicant claimed 250,000 euros (EUR) in respect of non‑pecuniary damage.

54.  The Government contested his claim.

55.  Having regard to the nature of the violation found, the Court considers it reasonable to award the applicant EUR 8,000 in respect of non‑pecuniary damage, plus any tax that may be chargeable, and rejects the remainder of his claims under this head.Costs and expenses

56.  The applicant claimed EUR 2,150 for costs and expenses incurred before the Court. He submitted a breakdown of costs representing twenty‑one hours of work by the lawyer at an hourly rate of EUR 100, and requested that the award be paid directly into the lawyer’s bank account.

57.  The Government considered that, in addition to being excessive, the lawyer’s fees had not been shown to have been actually paid or incurred.

58.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Regard being had to the documents in its possession and the above criteria, and bearing in mind that the sum of EUR 850 has already been paid to the applicant in legal aid, the Court considers it reasonable to award the sum of EUR 500, to be paid directly into the representative’s bank account, and rejects the remainder of the claims.Default interest

59.  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,Decides to strike out of its list of cases the part of the application concerning medical assistance at the town hospital, in accordance with Article 37 § 1 (a) of the Convention;Declares the complaints under Articles 3 and 13 of the Convention concerning the applicant’s alleged ill-treatment during his arrest and while in police custody and the lack of an effective investigation into his allegations of ill-treatment admissible;Holds that there has been a violation of Article 3 of the Convention under its procedural limb;Holds that there has been no violation of Article 3 of the Convention under its substantive limb;Holds that there is no need to examine separately the merits of the complaint under Article 13 of the Convention in conjunction with Article 3 in so far as the ill-treatment grievance is concerned;Decides that there is no need for a separate examination of the admissibility and merits of the complaints under Articles 3 and 13 and Article 5 §§ 1 and 5 concerning the applicant’s alleged handcuffing and constant supervision at the town hospital; inadequate conditions of his transfer; and the alleged failure to examine his claim for compensation for damage;Declares the remainder of the application inadmissible;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 8,000 (eight thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 500 (five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid directly into the representative’s bank account;

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

Done in English, and notified in writing on 18 May 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova Darian Pavli
Deputy RegistrarPresident

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