CASE OF MARSHALOV AND OTHERS v. RUSSIA

 

 

THIRD SECTION

CASE OF MARSHALOV AND OTHERS v. RUSSIA

(Applications nos. 49290/06 and 2 others –
see appended list)

 

 

 

 

JUDGMENT
 

STRASBOURG

11 January 2022

 

 

 

 

 

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

 

In the case of Marshalov and Others v. Russia,

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

 Peeter Roosma, President,
 Dmitry Dedov,
 Andreas Zünd, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the applications (nos. 49290/06 and 2 others) 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 Russian nationals (“the applicants”), on the various dates indicated in the appended table;

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

the parties’ observations;

Having deliberated in private on 30 November 2021,

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

INTRODUCTION

1.  The applications concern the alleged ill-treatment of the applicants at the hands of State officials between 2006 and 2008, and the alleged ineffective investigation in that regard, as well as other complaints under well‑established case-law.

THE FACTS

2.  The applicants are Russian nationals who live in various regions of Russia. A list of the applicants is set out in the Appendix.

3.  The Russian Government (“the Government”) were initially represented by Mr G. Matyushkin and Mr M. Galperin, former Representatives of the Russian Federation to the European Court of Human Rights, and lately by Mr M. Vinogradov, their successor in that office.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.

Marshalov v. Russia, application no. 49290/06Alleged ill-treatment

5.  On 12 July 2006 the applicant was apprehended by police officers near his house in Kazan, handcuffed and taken by car to the Vysokogorskiy District Police Department, where he was beaten, allegedly in the presence of a senior investigator of the District Prosecutor’s Office and later in the presence of the District Prosecutor. The officers allegedly used gas masks and electric shocks in order to obtain a confession of murder.

6.  On 14 July 2006 the applicant was transported to the Kazan Police Department. During transportation he stayed on the floor of the car with the police officers kicking him on his back. Once in the station, the applicant was again beaten up and electrocuted on his fingers. He was then taken back to the Vysokogorskiy Police Department.

7.  On the same date the applicant was examined by a surgeon of the Vysokogorskiy District Hospital, who reported bruises on the applicant’s front and nose. According to report no. 98 established shortly thereafter by a forensic expert, the applicant suffered from various physical injuries, including a scar on his forehead and nose, hematomas on his shoulders and hips and abrasions on his knees and elbows.

8.  On an unspecified date the applicant was again taken to the same police station in Kazan where he was tortured by similar methods and then transported back to the Vysokogorskiy Police Department.

9.  On 20 July 2006 the applicant confessed to a murder.

10.  On 28 July 2006 a surgeon of a local hospital examined the applicant and confirmed that he had bruise on his front and nose.

Related proceedings

11.  On 19 July 2006 the applicant complained about torture to the Vysokogorskiy District Prosecutor’s Office, but in vain as the complaint was summarily rejected. Thereafter the applicant unsuccessfully tried to raise his grievances before various authorities (decisions of 7, 15, 30 August 2006).

12.  On 28 August 2006 the Vakhitovskiy District Court dismissed the applicant’s complaint under Article 125 of the Code of Criminal Procedure against the prosecutors’ failure to institute criminal proceedings on account of torture. On 22 September 2006 the Supreme Court of the Republic of Tatarstan upheld that decision on appeal, stating that the alleged abuses during the investigation and possible exclusion of evidence so obtained should be assessed later by the competent court which would examine the merits of the criminal case against the applicant.

Yarullin v. Russia, application no. 58179/09Alleged ill-treatment

13.  On 29 June 2008 at around 4 a.m. the applicant was approached by two police officers at a bus stop in Kazan. The applicant was under the influence of alcohol, so the officers ordered him to follow them to the police station in order to check his identity papers. At around 6 a.m. the applicant was brought by the police to the sobering-up centre of the Privolzhskiy District Police Department in Kazan. The officers apparently ignored his requests to let him call his parents, so the applicant tried to leave. In response, one of the officers grabbed the applicant arm and violently put him on the ground, as a result of which the applicant’s right shoulder was fractured.

14.  On the same day the applicant was taken to Medical Emergency Centre no. 1 of Kazan where he stayed until 2 July 2008 for medical care. The medical certificate confirmed the fracture of the applicant’s right shoulder.

Related proceedings

15.  On 2 July 2008 the applicant requested criminal proceedings to be brought against the police officer who had injured him.

16.  On 14 July 2008 his request was dismissed by an investigator of the Investigation Committee. Referring to the video footage of the events, the investigator found that the use of force against the applicant was justified by his attempt to leave the sobering-up centre without permission. The decision did not examine in detail the question of proportionality of the use of force.

17.  On 24 October 2008 the applicant challenged the decision in the Vakhitovskiy District Court of Kazan, arguing that the use of force was a disproportionate response to his legitimate request to call his next-of-kin.

18.  On 31 October 2008 the Deputy Prosecutor of Kazan acknowledged of his own motion unlawfulness of the investigator’s decision of 14 July 2008 and sent the case for review to the Investigation Committee, who quashed the impugned decision on 6 November 2008. He found that additional investigative steps should include the consultation of the sobering-up centre’s register, the ambulance call records and the questioning of the applicant’s cellmates.

19.  On 10 November 2008 the Vakhitovskiy District Court of Kazan discontinued the proceedings, noting that the impugned decision had already been quashed. On 15 November 2008 an investigator again refused to open criminal proceedings against the policeman. The decision was very similar to the one delivered on 14 July 2008 and contained no new elements.

20.  The applicant was unsuccessful in attempting to bring court proceedings in this connection throughout 2009, as the investigation authorities quashed their own decisions before it could be reviewed by the relevant courts.

21.  On 11 June 2009 the applicant’s lawyer unsuccessfully requested the Central Interdistrict Department of the Investigation Committee to allow her access to the documents concerning the inquiry conducted into the applicant’s complaint against the police. Following her complaint the Privolzhskiy District Court of Kazan found on 3 August 2009 that failure to reply to the lawyer’s request by the Head of the Central Interdistrict Department of the Investigation Committee was unlawful.

Kapranov v. Russia, application no. 14043/09Alleged ill-treatment

22.  On 28 December 2006 the applicant was arrested on suspicion of involvement in six incidents of serious violent crime. Pending trial, he was detained in remand prison IZ-63/1 in Samara. The applicant submits that the authorities put serious pressure on him forcing out a confession. Among other things, he was allegedly violently beaten by his cellmates on the orders of the investigation.

23.  On 12 January and 6 February 2007 the applicant underwent medical examinations during which doctors reported superficial wounds to his forearms and the back of the head, a bruise on his chest, and first-degree burns on his face.

24.  As a result of the pressure the applicant confessed in respect of each incriminated episode in the presence of a lawyer allegedly suggested by the investigation and also wrote a request to renounce the services of his own team of lawyers that his family had previously hired for the case.

Related proceedings

25.  Subsequently the applicant tried to complain about the ill-treatment and pressure by the authorities, but to no avail. On 16 April 2007 the Samara Regional Prosecutor’s Office refused to open criminal proceedings into the applicant’s alleged ill‑treatment. With reference to the statements of the investigator and the officers involved in the criminal case against him the authorities rejected his allegations as groundless. Among other things, the relevant decision stated that the applicant had himself allegedly admitted having “fallen off his bed”, having received burns on the face after “falling asleep next to a hot radiator in his cell” and having “cut himself with a nail”. The decision also denied that any pressure was put on the applicant and that his decisions about the choice of his legal assistance had been voluntary.

26.  On 22 February 2008 the Samara Regional Investigative Committee refused to open a criminal case for the reason that the recorded injuries had been self-inflicted. The applicant complained to the domestic courts about the prosecutors’ refusals to carry out a comprehensive investigation into his allegations.

Criminal case against the applicant

27.  On 28 April 2008 the Samara Regional Court convicted the applicant as charged in respect of six episodes, in particular, on the basis of the self‑incriminating statements made in the presence of the lawyer suggested by the investigation. The applicant’s references to his alibi, as well as the allegations of pressure and ill-treatment, were summarily dismissed.

28.  On 26 June 2008 the Council of the Samara Bar Association, on the basis of a complaint by the applicant, found that Mr L., the lawyer suggested by the investigation, had breached the advocate’s code of ethics by failing to effectively defend the applicant in the course of the pre-trial investigation and reprimanded him.

29.  On 8 September 2008 the Supreme Court of Russia modified the conviction slightly and sentenced the applicant to twenty-two years’ imprisonment. The allegations of ill-treatment were summarily dismissed as unsubstantiated.

30.  The applicant later unsuccessfully complained to the Samara Regional prosecutor’s office that he had been ill-treated and denied the right to legal assistance of his own choosing. He also complained to the domestic courts about the prosecutors’ refusals to carry out a comprehensive investigation into his allegations.

RELEVANT LEGAL FRAMEWORK

31.  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, and Ryabtsev v. Russia, no. 13642/06, §§ 48‑52, 14 November 2013.

THE LAW

JOINDER OF THE APPLICATIONS

32.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION

33.  The applicants complained under Article 3 of the Convention that they had been subjected to ill‑treatment by State officials and that the State had failed to conduct an effective domestic investigation into those incidents. The applicants also complained under Article 13 of the Convention that they had no effective remedy in respect of their complaints of ill-treatment. The relevant parts of the 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 ...”

Alleged ill-treatment

34.  The Court notes that these complaints are neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.

MeritsThe parties’ submissions

35.  In all three cases the Government denied the applicant’s allegations as implausible and unfounded with reference to the conclusions of the domestic inquiries.

36.  The applicants maintained their complaints.

The Court’s assessment

(a)   Credibility of the applicants’ allegations of ill-treatment

37.  The Court observes that all the applicants were arrested by the police on suspicion of their having committed a crime or an administrative offence. After spending different periods of time at the hands of State officers, the applicants were found to have sustained injuries of various degrees, as recorded by forensic medical experts, detention facilities or medical institutions (see paragraphs 7, 10, 14 and 23 above).

38.  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 the applicants’ allegations of ill-treatment in police custody were credible.

(b)   Effectiveness of the investigation into the alleged ill-treatment

39.  The Court observes that the applicants’ credible allegations of their injuries being the result of police violence were dismissed by the investigating authorities as unfounded, based mainly on the statements of police officers denying the applicants’ ill-treatment (see paragraphs 11, 16‑19, 25-26 above).

40.  The investigators’ decisions refusing to open a criminal case were each time quashed by the superior authorities for having been based on an incomplete inquiry and a fresh inquiry was ordered. Subsequently the investigators’ refusals to open a criminal case were upheld by the domestic courts.

41.  As regards the quality of the forensic expert examinations, the Court reiterates that proper medical examinations are essential safeguards against ill-treatment (see Akkoç v. Turkey, nos. 22947/93 and 22948/93, §§ 55 and 118, ECHR 2000‑X). In this regard the Court notes that Mr Marshalov and Mr Kapranov did not undergo forensic medical examinations at all.

42.  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 (see Lyapin v. Russia, no. 46956/09, §§ 129 and 132‑36, 24 July 2014).

43.  The Court has no reason to hold otherwise in the present cases, which involve credible allegations of treatment proscribed by Article 3 of the Convention. It finds that the State has failed to carry out an effective investigation into the applicants’ allegations of police violence.

(c)   The Government’s explanations

44.  The Government maintained the conclusions of the investigating authorities to the effect that the applicants’ injuries had not been attributable to the conduct of the police officers or were the result of a legitimate use of force (the case of Mr Yarullin).

45.  Given that the Government’s explanations were provided as a result of superficial domestic inquiries falling short of the requirements of Article 3 of the Convention, the Court finds that they cannot be considered satisfactory or convincing. In the case of Mr Yarulling the domestic authorities clearly failed to examine in detail the question of proportionality of the use of force, as the events took place inside the police station full of police officers and where the applicant could be immobilised with relative ease by using superior numbers and handcuffs (see paragraphs 15-21 above). 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).

(d)   Legal classification of the treatment

46.  The applicants alleged that they had been subjected to torture and inhuman and degrading treatment.

47.  As regards Mr Marshalov’s allegations of being subjected to suffocation with a gas mask and electrocution, the Court finds them unsubstantiated. However, his injuries clearly originated from the beatings by the State officers. Having regard to the injuries confirmed by medical evidence (see paragraphs 7 and 10 above), the Court finds that the police subjected Mr Marshalov to inhuman and degrading treatment.

48.  Having regard to the injuries of Mr Yarullin (see paragraph 14 above), the Court finds that the ill-treatment in respect of him amounted to inhuman and degrading treatment.

49.  The Court notes Mr Kapranov’s injuries, in particular, superficial wounds to his forearms and the back of the head, a bruise on his chest, and first-degree burns on his face (see paragraph 23 above). It considers that the ill‑treatment was inflicted on the applicant with a view to extracting a confession statement, causing severe physical and mental suffering. The Court concludes that the ill-treatment at issue amounted to torture (see Tigran Ayrapetyan v. Russia, no. 75472/01, §§ 13 and 77, 16 September 2010, and Chenchevik v. Ukraine, no. 56920/10, § 79, 18 July 2019).

(e)   Conclusion

50.  There has accordingly been a violation of Article 3 of the Convention of its both substantive and procedural limbs in respect of all three applicants. In the light of this finding, the Court considers that it is not necessary to examine whether there has also been a violation of Article 13 of the Convention in respect of the same complaints.

ALLEGED VIOLATION OF ARTICLE 6 of the Convention

51.  Mr Kapranov also complained that his conviction judgment had been based on confession statements made as a result of his ill-treatment and that the courts had failed to give due regard to his allegations of ill-treatment. He relied on Article 6 § 1 of the Convention, which reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

52.  The Government argued that, in addition to the applicant’s confession statements, the respective judgment had been based on a plethora of evidence obtained by the investigation. The courts had examined the applicant’s allegations of ill-treatment and had dismissed them as unsubstantiated.

53.  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.

54.  The Court reiterates that the admission of confession statements obtained in violation of Article 3 of the Convention renders the criminal proceedings as a whole automatically unfair, irrespective of the probative value of those statements and irrespective of whether their use was decisive in securing the defendant’s conviction (see Gäfgen v. Germany [GC], no. 22978/05, § 166, ECHR 2010, and Turbylev v. Russia, no. 4722/09, § 90, 6 October 2015).

55.  The Court has already found that the applicant’s confession statements were obtained as a result of torture, to which he had been subjected in police custody (see paragraph 49 above). The trial and appeal courts did not exclude the confession statements as inadmissible evidence and referred to them when convicting the applicant of crimes to which he had confessed in those statements (see paragraphs 27 and 29 above).

56.  In such circumstances, the Court concludes that the domestic courts’ use of the applicants’ confessions obtained in violation of Article 3 of the Convention, regardless of their impact on the outcome of the criminal proceedings, rendered the whole trial unfair.

57.  Accordingly, there has been a violation of Article 6 § 1 of the Convention in respect of Mr Kapranov.

OTHER ALLEGED VIOLATIONS OF THE CONVENTION

58.  Lastly, the Court has examined the complaints about the criminal proceedings against Mr Marshalov and, having regard to all the material in its possession and in so far as it falls within the its competence, finds that they 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 as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

59.  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.”

60.  The amounts claimed by the applicants under the head of pecuniary and non‑pecuniary damage and costs and expenses are indicated in the appended table.

61.  The Government submitted that Article 41 of the Convention should be applied in accordance with the established case-law.

62.  Wherever the Court finds a violation of the Convention, it may accept that the applicants have suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation, and make a financial award.

63.  As to costs and expenses, the Court has to establish whether they were actually incurred and whether they were necessary and reasonable as to quantum (see McCann and Others v. the United Kingdom, 27 September 1995, § 220, Series A no. 324).

64.  In respect of Mr Yarullin’s claims for pecuniary damage, the Court dismisses them as unsubstantiated, as the applicant failed to produce any documents confirming the expenses allegedly incurred.

65.  Having regard to the conclusions and principles set out above and the parties’ submissions, and taking into account legal aid granted to Mr Yarullin, the Court awards the applicants the amounts detailed in the appended table, plus any tax that may be chargeable to them on those amounts.

66.  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 join the applications;Declares the complaints of all three applicants under Article 3 of the Convention and the complaint of Mr Kapranov under Article 6 of the Convention admissible and the remainder of the applications inadmissible;Holds that there has been a violation of Article 3 of the Convention under its substantive limb in that Mr Kapranov was subjected to torture in police custody and that Mr Yarullin and Mr Marshalov were subjected to inhuman and degrading treatment;Holds that there has been a violation of Article 3 of the Convention under its procedural limb in respect of all three applicants in that no effective investigation into their complaints was carried out by the authorities;Holds that there is no need to examine the same complaints under Article 13 of the Convention;Holds that there has been a violation of Article 6 of the Convention in respect of Mr Kapranov;Holds

(a)  that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, plus any tax that may be chargeable to the applicants, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the amounts indicated in the appended table 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 applicants’ claim for just satisfaction.

Done in English, and notified in writing on 11 January 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 

 Olga Chernishova  Peeter Roosma
 Deputy Registrar President

 

 

APPENDIX

No.

 

Case name

Application no.

 

Lodged on

Applicant

Year of Birth

Place of Residence

Nationality

Represented by

Non‑pecuniary damage

Pecuniary damage

Costs and expenses

 

 

Marshalov v. Russia 49290/06

 

13/10/2006

Yevgeniy Vladimirovich MARSHALOV
1963
N. Vyazovyye
Russian

 

Yelena Rashidovna

GILMITDINOVA

Sought by the applicant

EUR 20,000

 

RUB 55,000

Awarded by the Court

EUR 20,000 (twenty thousand euros)

 

EUR 610 (six hundred and ten euros)

 

Yarullin v. Russia 58179/09

 

02/10/2009

Artem Andreyevich YARULLIN
1985
Kazan
Russian

 

Igor Nikolayevich

SHOLOKHOV

Sought by the applicant

EUR 15,000

RUB 40,000

RUB 30,000

 

Awarded by the Court

EUR 15,000 (fifteen thousand euros)

-

-

 

Kapranov v. Russia

14043/09

Sergey Aleksandrovich

KAPRANOV

1982

Yakutsk

Russian

 

Aleksandr Sergeyevich ROMANOV

Sought by the applicant

EUR 120,000

 

 

Awarded by the Court

EUR 52,000 (fifty-two thousand euros) [1]

 

 

 

[1] The sum is to be paid into the representative’s bank account, as identified by the applicant

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