CASE OF ORAZBAYEV AND OTHERS v. RUSSIA

THIRD SECTION

CASE OF ORAZBAYEV AND OTHERS v. RUSSIA

(Applications nos. 15367/07 and 3 others – see appended list)

JUDGMENT
 

STRASBOURG

13 July 2021

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

In the case of Orazbayev and Others 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 applications (nos. 15367/07 and 3 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 four 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 22 June 2021,

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

INTRODUCTION

1.  The applications concern the applicants’ alleged ill-treatment in police custody in Chechnya between 2002 and 2006, and the alleged ineffective investigation into the ill-treatment, as well as other complaints under well‑established case-law.

THE FACTS

2.  The applicants are Russian nationals. Their personal details are indicated in the appendix.

3.  The Government were represented initially 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 A. Fedorov.

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

THE CIRCUMSTANCES OF THE CASEOrazbayev v. Russia (application no. 15367/07)Background information

5.  On 30 April 2004 the applicant was arrested in Neftekumsk, Stavropol Region, on suspicion of unlawful possession of arms, of which he was convicted by the Neftekumskiy District Court on 26 November 2004.

6.  On 17 November 2004 the applicant was charged with terrorism and belonging to illegal armed groups in Chechnya. On 19 November 2004 he was interviewed as an accused in the presence of Ms I.O., a lawyer. He refused to testify, relying on his right not to incriminate himself.Alleged ill-treatment

7.  On 19 November 2004 the Neftekumskiy District Court ordered the applicant’s detention during the investigation and authorised his transfer to Chechnya for investigative activities. The applicant was transported by officers of the Operational‑Search Division of the North Caucasus Operations Department of the Chief Directorate of the Russian Ministry of the Interior in the Southern Federal Circuit (ОРБ-2 СКОУ ГУ МВД РФ по ЮФО  “the ORB‑2”).

(a)   Alleged ill-treatment at the ORB-2 between 20 November 2004 and 25 January 2005

8.  On 20 November 2004 the applicant was placed in a temporary detention facility (“IVS”) at the ORB-2 in Grozny. According to him, on their way to the ORB-2, the officers handcuffed him and put a plastic bag over his head. In the IVS the officers beat him and demanded that he confess and sign documents. They handcuffed him to a radiator, punched and kicked him all over his body and hit him with truncheons, subjected him to electric shocks and suffocated him with a plastic bag. The applicant fainted on several occasions. The beatings continued until 23 November 2004.

9.  On 27 November 2004 the officers again beat the applicant, forcing him to confess. According to him, he was afraid of complaining to the authorities because of the officers’ threats of ill-treatment.

10.  On 25 January 2005 the applicant was transferred to remand prison no. 1 in Grozny. According to his medical record of 25 January 2005, he had shrapnel scars.

(b)   Alleged ill-treatment at the ORB-2 on 10 February 2005

11.  On 10 February 2005 the applicant was taken to the ORB-2. According to him, the police officers beat him prior to an investigative activity so that he reiterated his confession.

12.  On 10 February 2005 at 10.30 a.m., during an on-site verification of his statements (проверка показаний на месте), the applicant reiterated his confession statements. He was represented by a lawyer, Mr S.P.

13.  On 16 February 2005 the applicant was transferred back to the remand prison.

(c)   Alleged ill-treatment in the Shelkovskoy IVS between 11 and 21 July 2005

14.  In interviews of 25 May and 1 June 2005, the applicant retracted his earlier confessions, stating that they had been given as a result of ill‑treatment by ORB-2 officers. He also submitted that he had not complained to the authorities earlier as he had feared further ill-treatment.

15.  On 11 July 2005 the applicant was transferred from the remand prison to the IVS of the Shelkovskoy district department of the interior (“ROVD”).

16.  According to the applicant, on 19 July 2005 two officers of the Shelkovskoy ROVD beat him because he had retracted his confession. The officers demanded that he reiterate his initial confession during subsequent investigative activities.

17.  On 20 July 2005, during an on-site verification of his statements, the applicant reiterated his initial confession.Inquiry into the alleged ill-treatment

18.  On 21 July 2005 the applicant’s lawyer requested that the applicant undergo a medical examination. On 28 July 2005 the applicant was examined by a forensic expert. According to report no. 759, the applicant had bruises on his body, a scar on the right side of his chest, and numerous linear scars on his back and lower legs which could have been sustained within two to three weeks before the examination. It was also stated in report no. 759 that the medical records at the remand prison indicated that the applicant had had no injuries on 16 February 2005 and 21 July 2005.

19.  In an interview of 10 August 2005, the applicant retracted his confession statement made on 20 July 2005 and complained that he had been ill-treated by police officers of the Shelkovskoy ROVD and the ORB‑2.

20.  On 12 August 2005 an investigator refused to open a criminal case, referring to the submissions of Ms V., a medical assistant at the remand prison, according to which she had examined the applicant on 21 July 2005 upon his admission to the remand prison. He had had thirty-one cuts on his body and, in particular, on his back and calves. The applicant had explained that the injuries had been inflicted on him by his co-detainees. The decision also contained the submissions of police officers of the Shelkovskoy ROVD and the ORB-2, who had denied having used force against the applicant.The applicant’s trial

21.  On 18 October 2005 the Supreme Court of Chechnya started examining the applicant’s criminal case. The applicant pleaded not guilty and submitted that he had made his confession statements during the investigation under duress. He complained that in November 2004 he had been transferred to the ORB-2 and had been held and ill-treated there for about two months. He also submitted that he had been beaten in the Shelkovskoy ROVD.

22.  On 11 November 2005 the Supreme Court ordered a prosecution inquiry into the applicant’s allegations of ill-treatment.

23.  On 2 December 2005 the court heard Mr K.T., the applicant’s cellmate at the ORB-2. He submitted that in November 2004 he had been held with the applicant in the same cell at the ORB-2 for three days. The applicant had regularly been taken by the officers for interrogations at around midnight and then returned to the cell in the morning. K.T. had seen bruises on the applicant’s body. When the applicant had been brought back to the cell in the mornings, he had barely been able to walk or hold a bottle of water in his hands. K.T. also submitted that there had been no injuries on the visible parts of the applicant’s body, such as his face. Lastly, he submitted that it had been impossible to complain at the ORB-2 about the alleged ill-treatment because of the fear of severe reprisals.

(a)   Refusal to open a criminal case of 2 December 2005

24.  On 2 December 2005, as a result of the inquiry ordered by the trial court, a prosecutor refused to open a criminal case for lack of evidence of a crime. It was stated in the decision, which is partly illegible, that the applicant’s allegations of ill-treatment during the investigation were unfounded. A senior officer of the ORB-2 submitted that no physical force had been applied to the applicant and that he had not made any complaints to the authorities.

(b)   The applicant’s conviction

25.  On 28 April 2006 the Supreme Court of Chechnya found the applicant guilty of belonging to an illegal armed group and other terrorism‑related crimes. The court relied on, among other things, the confession statements he had made during the investigation. The court noted that the applicant had been represented by a lawyer during the investigative activities and found that the applicant’s allegations of ill-treatment were unfounded, referring to the most recent refusal to open a criminal case. The court dismissed K.T.’s statements as unreliable.

26.  On 16 January 2007 the Supreme Court of the Russian Federation upheld the conviction on a subsequent appeal and dismissed the applicant’s complaints about the use of his confession statements and ill-treatment.Satabayev v. Russia (application no. 7927/08)The applicant’s arrest and alleged ill-treatment

27.  On 5 March 2002 law-enforcement authorities carried out a special operation in the Oktyabrskiy district in Grozny aimed at identifying and arresting members of illegal armed groups. The applicant was arrested at 8.45 p.m. in the street. He was found to be carrying a gun. According to the applicant, he was severely beaten during his arrest. He was placed in the IVS at the Department of the Interior of the Chechen Republic (“the UVD”).

28.  According to the applicant, police officers handcuffed him to a radiator and beat him with rubber truncheons on his back, legs and in the groin area, forcing him to confess to having committed acts of terrorism. The applicant’s arrest record was drawn up on 6 March 2002.

(a)   Alleged ill-treatment at the ORB-2 between 7 March and 13 April 2002

29.  On 7 March 2002 the applicant was transferred to the ORB-2. According to him, officers punched and kicked him and hit him with plastic bottles filled with water. They induced suffocation by putting a gas mask over his head, administered electric shocks to his ears and fingers on his right hand. They burnt him twice on his back and once on his forehead with cigarettes. They left him hanging by handcuffs fixed to the door. Unable to withstand the pain, on 15 March 2002 the applicant signed the papers they gave him without reading their contents.

30.  On 13 April 2002 the applicant was transferred from the ORB-2 to the Oktyabrskiy ROVD in Grozny. On 15 April 2002 the applicant was transported to the remand prison in the village of Chernokozovo in the Naurskiy District in Chechnya.

(b)   Alleged ill-treatment at the Leninskiy VOVD between 20 and 22 May 2002

31.  On 20 May 2002 the applicant was transferred to the Temporary Department of the Interior of the Leninskiy District in Grozny (“the Leninskiy VOVD”). According to him, he was beaten there by police officers over a period of two days.

32.  On 6 June 2002 the applicant was taken back to the remand prison.

33.  According to the Government, the copies of the official logs of the Leninskiy VOVD were destroyed following the expiry of the time-limit for their storage.

(c)   Alleged ill-treatment at the ORB-2 between 10 and 16 July 2002

34.  According to the applicant, on 5 July 2002 he was taken to the UVD from where he was regularly taken to the ORB-2 for interviews.

35.  In an interview with an investigator on 10 July 2002 at the ORB-2 the applicant denied his involvement in the crimes of which he was accused and submitted that he had been ill-treated by ORB-2 officers. He identified two ORB-2 officers who were present in the room and who immediately beat the applicant up in the presence of the investigator. The investigator then left the room, and the officers put a gas mask on the applicant’s head and cut off the air flow, hit and kicked him on his body and also administered electric shocks to his ear and a finger of one of his hands. They continued ill-treating him in this way on 11, 12, 15 and 16 July 2002. On 16 July 2002 the applicant was taken back to the UVD.

36.  According to the applicant, he met his lawyer, Ms M.Ya., for the first time on 22 August 2002 during a detention hearing.

(d)   Alleged ill-treatment at the ORB-2 in September and October 2002

37.  On 24 September 2002 the applicant was again taken to the ORB-2. The officers punched and kicked him on his body. The applicant was beaten because of his complaint of 2 September 2002 to the prosecutor about his ill-treatment (see below). The applicant’s ill-treatment continued until 27 September when he was taken back to the remand prison.

38.  On 7 October 2002 the applicant was again transferred to the ORB‑2. According to the applicant the officers ill-treated him until 9 October 2002, punching and kicking him, and beating him with rubber truncheons. They also strangled him and subjected him to electric shocks. Unable to withstand the treatment, the applicant signed the documents he had been asked to sign. On 11 October 2002 the applicant was taken back to the remand prison.

39.  According to the Government, the copies of the official logs of the ORB-2 were destroyed following the expiry of the time-limit for their storage.Inquiry into the alleged ill-treatment

40.  On 2 September 2002 the applicant complained to the Grozny district prosecutor’s office about his ill-treatment by officers of the ORB-2.

(a)   Pre-investigation inquiry

41.  On 9 October 2002 a prosecutor issued a refusal to open a criminal case for lack of evidence of a crime. The parties did not submit a copy of this decision.

42.  On 11 October 2002 the applicant was examined by a doctor in the Chernokozovo remand prison. According to his medical record (акт медицинского освидетельствования), he had two bruises measuring 14 by 10 cm and 10 by 5 cm on his shoulders, a bruise measuring 7 by 4 cm on his right shoulder blade, and a bruise measuring 14 by 10 cm in the collarbone region. All of the bruises were a purple-reddish colour.

43.  According to the Government, the medical records of the ORB-2 for 2002 were destroyed due to the expiry of the time-limit for their storage.

44.  On 25 April 2003 the Rostov Regional Court which examined the applicant’s criminal case ordered his forensic medical examination. According to forensic medical act no. 2466 of 29 April 2003, the injuries indicated in the applicant’s medical record of 11 October 2002 had been caused as a result of blows with hard blunt objects within three days before the examination at the remand prison.

45.  On 2 July 2003 the Rostov Regional Court convicted the applicant, dismissing his arguments of unlawful arrest and ill-treatment. On 8 December 2003 the Supreme Court of Russia upheld his conviction on a subsequent appeal.

(b)   Inquiry carried out following the applicant’s conviction

46.  On 26 February 2007 the applicant’s mother lodged a complaint with a prosecutor about the applicant’s allegedly unlawful arrest and ill-treatment, enclosing a detailed account of the circumstances of his arrest and ill-treatment between March and October 2002 written by the applicant and a copy of the medical examination report of 11 October 2002.

47.  On 29 March 2007 the investigator requested, among other things, information from the Ministry of the Interior in Chechnya concerning the applicant’s arrest and ordered that the officers who had carried out his arrest be identified. He also requested information from the ORB-2 about the applicant’s detention in that facility. Similar requests were sent to the Leninskiy VOVD and Oktyabrskiy ROVD.

48.  On 31 March 2007 an investigator refused to open a criminal case for lack of evidence of a crime, referring to the submissions of a deputy head of the ORB-2 that no physical force had been applied to the applicant during his detention at the ORB-2. It appears from the decision that no significant information was received as a result of the investigator’s requests.

49.  On 11 April 2007 the applicant’s mother complained about the refusal to open a criminal case to the Leninskiy District Court.

50.  On 9 July 2007 the court dismissed her complaint. It found that the applicant had already been convicted and that the circumstances of the alleged unlawful arrest and ill-treatment had been examined at trial. It also noted that the applicant’s mother had no standing to lodge a complaint on her son’s behalf.

51.  On 28 August 2007 the Supreme Court of Chechnya upheld the decision of 9 July 2007 on a subsequent appeal.

(c)   Inquiry carried out following the Government being notified of the applicant’s application to the Court

52.  On 22 January 2013 the Government were notified of the applicant’s complaints.

53.  On 22 February 2013 a prosecutor quashed the refusal of 31 March 2007 and ordered a new inquiry.

54.  On 6 April 2013 the investigator refused to open a criminal case, citing the submissions of a deputy head of the ORB-2 which were similar to those contained in the previous refusal. According to the decision, the applicant’s medical records from the Chernokozovo remand prison did not contain any information about the use of force against the applicant by police officers. The ORB-2 medical records and logs had been destroyed due to the expiry of the time-limit for their storage. The investigator further noted that the injuries mentioned in forensic medical report no. 2466 were “not considered as [entailing] harm to health”. Finally, the investigator referred to the applicant’s conviction judgment of 2 July 2003, in which it was stated that the allegations of ill-treatment he had made during the investigation had not been made out.Chapanov v. Russia (application no. 16321/08)Alleged ill-treatment at the ORB-2

(a)   Alleged ill-treatment on 14 September 2005

55.  Late in the evening of 13 September 2005, a group of armed men in military uniforms without insignia arrested the applicant at his house in Shali in Chechnya. The applicant was taken to the ORB-2. During the night of 14 September 2005, the officers beat him on his head and body with plastic bottles filled with water, subjected him to electric shocks, suffocated him with gas masks, and burnt him on his back with cigarettes.

56.  In an interview as a suspect on 14 September 2005 at 2 p.m., the applicant confessed to having committed a robbery.

57.  According to the applicant, on 17 September 2005 the officers brought his pregnant wife to the police station and threatened to rape her if the applicant refused to give further confession statements.

58.  On 22, 28 and 29 September 2005 the applicant was interviewed as an accused and he confessed to having committed several large-scale robberies. He was represented by State-appointed lawyers.

59.  On 3 and 7 October 2005 during an on-site verification of his statements, the applicant reiterated his confessions.

60.  On 10 October 2005 the applicant was transferred from the ORB-2 to remand prison no. 1 in Grozny. According to the remand prison medical records, the applicant had a scar below his ribs on the right side.

(b)   Alleged ill-treatment at the ORB-2 on 11 November 2005

61.  On 11 November 2005 the applicant was taken to the ORB-2. According to him, officers again threatened him with further ill-treatment should he refuse to cooperate. They burnt his left forearm with a cigarette. On the same day, the applicant was transferred back to the remand prison.

(c)   Alleged ill-treatment at the ORB-2 between 22 November and 1 December 2005

62.  On 22 November 2005 the applicant was again transferred to the ORB-2 where he stayed until 1 December 2005. According to the applicant, police officers interrogated him at night, threatening him with further ill‑treatment.

63.  According to the remand prison medical records of 1 December 2005, the applicant had six cigarette burns in the scapula area.Inquiry into the alleged ill-treatment

64.  On an unspecified date in November 2005 the applicant lodged a complaint with a prosecutor about his ill-treatment at the ORB-2. On 5 December 2005 the applicant reiterated his complaint.

65.  On 19 December 2005 the applicant was examined by a forensic expert. According to report no. 1344, the applicant had eight scars of 1 cm diameter each on his chest, right shoulder and left forearm. The scars had been caused by burns inflicted within one or two months before the examination, and could have been made by a cigarette.

66.  On 23 December 2005 an investigator refused to open a criminal case, relying on the submissions of the ORB-2 police officers who had denied using any force against the applicant. As to his injuries, the investigator referred to the statement of the applicant’s cellmate at the ORB‑2 that the applicant had injured himself with cigarettes.The applicant’s trial

67.  On 16 May 2006 the Supreme Court of Chechnya started examining the criminal case against the applicant and his co-defendants. The applicant pleaded not guilty and submitted that he had confessed as a result of ill‑treatment inflicted by ORB-2 officers.

68.  On 14 June 2006 the court ordered a prosecution inquiry into the applicant’s allegations of ill-treatment.

69.  On 28 June 2006 the prosecutor quashed the refusal of 23 December 2005 in view of the court’s order.

(a)   Refusal to open a criminal case of 7 July 2006

70.  On 7 July 2006 the investigator refused to open a criminal case for lack of evidence of a crime, referring to the submissions of the ORB-2 officers, who had denied the use of force against the applicant.

(b)   Other relevant information from the trial records

71.  On 16 November 2006 the applicant’s cellmate testified as a witness at trial that he had not seen the applicant injuring himself with cigarettes. He submitted that police officers had ordered him under threat to say that the applicant had injured himself. The applicant’s cellmate had been taken to an office where he had reiterated what he had been told to say to an unknown person who had written it down.

(c)   The applicant’s conviction

72.  On 26 December 2006 the Supreme Court of Chechnya convicted the applicant of aggravated robbery and sentenced him to nineteen years’ imprisonment. The court relied, among other things, on the confession statements he had given during the investigation. The court dismissed the applicant’s allegations of ill-treatment as unfounded, referring to the decision of 7 July 2006. It also dismissed the applicant’s cellmate’s statement as unreliable and found that the applicant’s injuries had been self‑inflicted.

73.  On 7 August 2007 the Supreme Court of Russia upheld the conviction on a subsequent appeal.Zulkarnayev v. Russia (application no. 30478/08)The applicant’s arrest and alleged ill-treatment

74.  On 15 April 2006 a group of unidentified police officers arrested the applicant near his house in Soltovo, in the Volgograd Region. They put him in a car and drove away. They took the applicant to an unknown building, where they put a plastic bag over his head and handcuffed him to a radiator in a position which left him unable to stand upright or sit down. The officers who arrested the applicant told him that they belonged to the Main Intelligence Service (“the GRU”). The officers interrogated the applicant and forced him to sign papers the content of which he had not seen. On each occasion when his replies did not satisfy the officers, they hit him on his head.

75.  Shortly after he had signed the papers, the officers took him to the Volgograd Organised Crime Unit (“the Volgograd UBOP”), where they hit him on his head and neck and forced him to confess to terrorism-related crimes.

76.  On an unspecified date in April 2006, the applicant was handcuffed to a radiator for the entire night. The applicant confessed to having committed crimes and signed papers given to him by the officers.

77.  On 25 April 2006 the applicant’s arrest record was drawn up. He was taken to the IVS at the Nozhay-Yurtovskiy VOVD in Chechnya. The applicant was examined by a doctor on duty, who took note of bruises as well as cuts on his body.

78.  On 1, 3 and 4 May 2006 the applicant signed statements (явка с повинной) confessing to having unlawfully possessed arms, and having committed terrorist attacks, explosions and assaults on law-enforcement officials.

79.  In an interview on 17 May 2006, the applicant reiterated his confession. On 22 May 2006 the applicant retracted his confession and stated that it had been given under duress.

80.  On 29 May 2006 the applicant was admitted to remand prison no. 1 in Grozny. Between May and December 2006, the applicant was regularly taken to the ORB-2 and the Nozhay-Yurtovskiy IVS for interviews, where he was regularly ill-treated.

81.  According to a copy of the applicant’s medical records from the remand prison, which were mostly illegible, between May 2006 and 10 January 2007 no bodily injuries were recorded on him.

82.  In interviews on 8 August and 8 September 2006, the applicant retracted his confession. On 19 September 2006 the applicant reiterated his initial confession statements.

83.  According to excerpts from the ORB-2 logbooks, the applicant was held there from 8 to 21 September and from 25 to 27 September 2006. According to the applicant’s medical records from the ORB-2, he only had a scar on his left knee which had been sustained during his arrest in April 2006.The applicant’s trial and inquiry into the alleged ill-treatment

84.  On an unspecified date in 2007, the criminal case against the applicant was sent for trial to the Supreme Court of Chechnya. The applicant pleaded guilty in part, admitting to belonging to an illegal armed group but denying his participation in terrorist attacks. He retracted the confession statements he had given during the investigation in that regard. The applicant complained about his arrest on 15 April 2006 and his ill‑treatment at the ORB-2, the Volgograd UBOP and the Nozhay‑Yurtovskiy IVS. He submitted that the reason the officers of the different authorities had held him on their premises for so long had been to give his injuries time to heal.

85.  The applicant’s wife confirmed at trial that the applicant had been arrested on 15 April 2006, and submitted that on the following day police officers had searched their house and told her that her husband had been arrested because of his membership in illegal armed groups.

86.  The applicant’s cellmates at the Nozhay-Yurtovskiy IVS and remand prison submitted that during his detention the applicant had had many bruises, a wound on his arm, and the other arm had been broken. They also submitted that the officers had repeatedly taken the applicant away overnight and when they had returned him, the applicant had been unable to walk. During the applicant’s detention at the remand prison, he had been ill‑treated on at least four occasions and he had had bruises on his body all the time. On one occasion the applicant had simply been thrown in the cell, he had been unable to move or eat and had had a severe headache. He had been hit with plastic bottles on his head.

(a)   Inquiry into the alleged ill-treatment

87.  On 28 March 2007 the trial court ordered a prosecution inquiry into the ill-treatment to which the applicant, as well as several other persons who had been interviewed as witnesses in his case, had allegedly been subjected.

88.  On 24 April 2007 a prosecutor refused to open a criminal case, finding, among other things, the applicant’s allegations unfounded. According to the decision, the applicant’s cellmates had been convicted and transferred to correctional colonies in other regions to serve their sentences and could not therefore be questioned. Officers of the Nozhay-Yurtovskiy IVS, seconded from other regions in Russia, had left Chechnya due to their secondments coming to an end. The prosecutor referred to medical records from the ORB-2 according to which the applicant had had no injuries apart from a wound sustained during his arrest. The ORB-2 officers denied using force against the applicant.

(b)   The applicant’s conviction

89.  On 16 May 2007 the Supreme Court of Chechnya convicted the applicant as charged, relying, among other things, on his confession statements. The court dismissed the applicant’s and his cellmates’ allegations as unfounded and unreliable, referring to the refusal of 24 April 2007. The court found that the applicant had been detained on 15 April 2006 and ordered that his sentence be counted from that date.

90.  Meanwhile, on 13 August 2007 the Zavodskoy District Court dismissed the applicant’s complaint that he had lodged in separate court proceedings against the refusal of 24 April 2007. The court found his complaint unfounded, referring to his conviction.

91.  On 6 December 2007 the Supreme Court of Russia upheld the conviction on a subsequent appeal.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

92.  For the relevant domestic law on the prohibition of torture and other forms of ill-treatment, procedure for examining a criminal complaint and the rights of suspects, see Ryabtsev v. Russia (no. 13642/06, §§ 48‑52, 14 November 2013); Lyapin v. Russia (no. 46956/09, §§ 96-102, 24 July 2014); and Turbylev v. Russia (no. 4722/09, §§ 46-49, 6 October 2015).

RELEVANT COUNCIL OF EUROPE MATERIAL

93.  The relevant part of the public statement of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) concerning the Chechen Republic of the Russian Federation of 10 July 2003, reads as follows:

“5.  One establishment stands out in terms of the frequency and gravity of the alleged ill-treatment, namely ORB-2 (the Operative and Search Bureau of the North Caucasus Operations Department of the Chief Directorate of the Russian Ministry of Internal Affairs in the Southern Federal District) in Grozny.

ORB-2 has never appeared on any official list of detention facilities provided to the CPT. However, persons certainly are being held there, on occasion for very lengthy periods of time. In the course of its visits in 2002, the CPT received a large number of allegations of ill-treatment concerning this establishment which were supported in several cases by clear medical evidence gathered by its delegation. During the CPT’s most recent visit to the Chechen Republic, in May 2003, further allegations were received, once again supported in some cases by medical evidence.

When the CPT re-visited ORB-2 in May 2003, it was holding 17 persons, some of whom had been there for several months. The persons detained were extremely reluctant to speak to the delegation and appeared to be terrified. From the information at its disposal, the CPT has every reason to believe that they had been expressly warned to keep silent. All the on-site observations made at ORB-2, including as regards the general attitude and demeanour of the staff there, left the CPT deeply concerned about the fate of persons taken into custody at the ORB.

The CPT has repeatedly recommended that a thorough, independent inquiry be carried out into the methods used by ORB-2 staff when questioning detained persons; that recommendation has never been addressed in a meaningful manner. To argue that ‘a formal, written complaint is required for action to be taken’ is an indefensible position to adopt given the climate of fear and mistrust which currently pervades the Chechen Republic, and constitutes a dereliction of responsibility. The CPT calls upon the Russian authorities to put a stop to ill-treatment at ORB-2 in Grozny.”

94.  For the CPT public statements concerning the Chechen Republic of the Russian Federation of 13 March 2007 and 24 January 2013, also mentioning the ORB-2 in Grozny, see Mukayev v. Russia, no. 22495/08, §§ 60‑61, 14 March 2017.

THE LAWJOINDER OF THE APPLICATIONS

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

96.  The Government made a number of preliminary objections.Orazbayev v. Russia (application no. 15367/07)

97.  The Government questioned the date of 31 January 2007 as the date of introduction of the application form.

98.  The Court notes that the applicant sent his first letter alleging a violation of his rights under Article 3 of the Convention on 31 January 2007. The Court requested the applicant to submit a duly signed and completed application form, which he did without undue delay on 15 August 2007. The Court therefore accepts the date of 31 January 2007 as the date of introduction of the application form and dismisses the Government’s objection as to the failure to comply with the six-month time‑limit.Satabayev v. Russia (application no. 7927/08)

99.  The Government submitted that the applicant had failed to exhaust domestic remedies in respect of his complaints under Articles 3 and 5 of the Convention. They argued, in particular, that the applicant had not challenged the prosecutor’s refusal of 9 October 2002 before a court. Instead he had raised the issue before the trial court, which could not be regarded as part of the normal process of exhaustion in respect of his complaint under Article 3 of the Convention. The Government further argued that the applicant’s mother had complained of his ill-treatment in February 2007, that is, more than three years after his conviction. They argued that the decision of 28 August 2007 of the Supreme Court of Chechnya, in which it had dismissed the applicant’s mother’s complaint, could not be considered as a final decision, since she had had no standing to lodge the complaint with that court. As regards Article 5 of the Convention, they argued that the applicant did not raise the issue before the national authorities.

100.  Regarding the first part of the Government’s objection, the Court considers that it is irrelevant whether the conviction judgment of 2 July 2003 constituted a final decision for the purposes of the exhaustion of domestic remedies since, in any event, the applicant lodged his application with the Court more than six months after this decision. It remains to be ascertained whether the decision of 28 August 2007 of the Supreme Court of Chechnya can be considered as “final” within the meaning of Article 35 § 1 of the Convention and whether the applicant complied with the six-month time-limit.

101.  In this regard the Court observes that the applicant’s mother complained about his ill-treatment to the prosecutor three years after the applicant’s conviction. Contrary to the Government’s submission, she also complained about the unlawfulness of the applicant’s arrest (see paragraph 46 above). The Court notes that, despite this delay, after receipt of the complaint, the prosecuting authorities gave instructions to carry out investigative measures. They launched an inquiry, which resulted in a refusal of 31 March 2007 to open a criminal case (see paragraph 48 above). The Court notes that the domestic authorities did not consider investigative efforts to be manifestly futile in view of the time that had elapsed. The Court also notes that the applicant alleged systemic and serious ill-treatment and that he had been subjected to reprisals for attempts to denounce it earlier (see paragraphs 35 and 37 above). In the circumstances of the case, and despite the delay, the ensuing investigation must be taken into account for the purposes of Article 35 § 1 of the Convention (see Velikanov v. Russia, no. 4124/08, § 44, 30 January 2014, contrast Finozhenok v. Russia (dec.), no. 3025/06, 31 May 2011).

102.  The Court further observes that the decision of 31 March 2007 was subject to judicial review by the Leninskiy District Court. In its decision of 9 July 2007, that court did not question her standing. Rather, the court examined and dismissed the complaint on the grounds that the applicant had been convicted and that the allegations of unlawful arrest and ill-treatment had been assessed at his trial and dismissed. On 28 August 2007 the Supreme Court of Chechnya upheld that decision on appeal (see paragraphs 49-51 above). The Court reiterates that the non-exhaustion of domestic remedies cannot be held against the applicant if, in spite of his failure to observe the formalities prescribed by law, the competent authority has nevertheless examined the substance of the claim (see Markaryan v. Russia, no. 12102/05, § 45, 4 April 2013).

103.  Lastly, the Court observes that, following the Government being notified of the applicant’s complaint, in February 2013 the prosecuting authorities quashed the decision of 31 March 2007 and ordered a new inquiry into his alleged ill-treatment. The inquiry resulted in yet another refusal (see paragraphs 52-54 above).

104.  In view of the above, the Court finds that the decision of 28 August 2007 of the Supreme Court of Chechnya can be considered a final decision within the meaning of Article 35 § 1 of the Convention and that the applicant lodged his complaint about his unlawful arrest and ill‑treatment within six months following that decision. The Government’s objection as to the failure to exhaust domestic remedies under Articles 3 and 5 of the Convention and to comply with the six-month time-limit must therefore be dismissed.Chapanov v. Russia (application no. 16321/08)

105.  Firstly, the Government questioned the date of 7 February 2008 as the date of introduction of the application form. Secondly, they argued that the applicant had failed to exhaust domestic remedies in respect of his complaint under Article 3 of the Convention, since he had not challenged the refusal of 23 December 2005.

106.  As to the Government’s first objection, the Court notes that the applicant sent his first letter on 7 February 2008. The Court asked the applicant to submit a completed application form, which he did without undue delay on 28 August 2008. The Court therefore accepts the date of 7 February 2008 as the date of introduction of the application form and dismisses the Government’s objection as to the failure to comply with the six-month time-limit.

107.  Regarding the Government’s second objection, the Court observes the following. On 23 December 2005 an investigator issued the first refusal to open a criminal case to investigate the applicant’s alleged ill-treatment. The applicant did not challenge that decision before a court. During the criminal proceedings, the trial court ordered a prosecution inquiry into the applicant’s allegations of ill-treatment. On 7 July 2006 the second refusal was issued (see paragraph 70 above). On 26 December 2006 the trial court convicted the applicant and rejected his ill-treatment allegations, relying on the refusal of 7 July 2006. The Court further notes that the Supreme Court upheld the trial court’s conclusions on appeal (see paragraphs 72-73 above).

108.  Given that the prosecution inquiry into the applicant’s alleged ill‑treatment was ordered, examined and accepted by the trial court and later reviewed by the appeal court, the Court finds that the applicant made the domestic courts sufficiently aware of his grievances in respect of his alleged ill-treatment (see, in a similar context, Tangiyev v. Russia, no. 27610/05, § 39, 11 December 2012). Accordingly, the Court dismisses the Government’s objection that the applicant failed to exhaust domestic remedies.Zulkarnayev v. Russia (application no. 30478/08)

109.  The Government submitted that the applicant had failed to exhaust domestic remedies in respect of his complaints under Articles 3 and 5 of the Convention.

110.  The Court observes that during his trial, the applicant complained about his arrest and alleged ill-treatment (see paragraph 84 above). On 28 March 2007 the trial court ordered an inquiry into his allegations, which resulted in a refusal of 24 April 2007 to open a criminal case. On 16 May 2007, shortly after the refusal was issued, the trial court, relying on it, convicted the applicant and dismissed his allegations of unrecorded detention and ill-treatment. The conviction was reviewed on appeal and upheld (see paragraphs 89 and 91 above). In such circumstances the Court finds that, similarly to the case of Mr Chapanov (see paragraph 108 above), the applicant made the domestic courts sufficiently aware of his grievances in respect of the alleged unrecorded detention and ill-treatment. Moreover, the Court notes that the applicant challenged the refusal of 24 April 2007 in separate court proceedings. His complaint was, however, dismissed with reference to his conviction (see paragraph 90 above). In view of the above, the Court dismisses the Government’s objection that the applicant failed to exhaust domestic remedies.ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION

111.  The applicants complained that they had been subjected to ill‑treatment at the hands of law-enforcement officers and that no effective investigation into their complaints had been carried out. Mr Orazbayev, Mr Satabayev and Mr Zulkarnayev also complained that there had been no effective remedies available in respect of their complaints of ill-treatment. They relied on Articles 3 and 13 of the Convention, the relevant parts of which 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 ...”Admissibility

112.  The Court notes that the 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.Merits

113.  The applicants maintained their complaints. The Government submitted that there had been no violation of Articles 3 and 13 of the Convention, referring to the conclusions of the inquiries conducted by the domestic authorities.Alleged ill-treatment

114.  The Court observes that the applicants were apprehended by State officers on suspicion of them having committed various terrorism-related crimes (see paragraphs 5, 27, 55 and 74 above). The Court further observes the applicants’ submission that they were subjected to physical and psychological violence. They provided detailed and consistent accounts of the circumstances of the alleged ill-treatment, which involved severe beatings, including with rubber truncheons, administration of electric shocks, suffocation with gas masks and plastic bags, threats of sexual violence, burning with cigarettes (see paragraphs 8, 28, 29, 35, 38, 55, 61, 74-76 above). After spending varying periods of time in the hands of State officers, the applicants were found to have sustained injuries of varying degrees of severity, as recorded by various forensic medical experts and detention facilities (see paragraphs 18, 20, 42, 60, 63, 65 and 77 above).

115.  The Court further notes the submissions of Mr Orazbayev’s cellmate, who submitted at trial that the applicant had been ill-treated in the ORB-2 in November 2004 so badly that he had not been able to hold a bottle of water in his hands (see paragraph 23 above). Similar submissions were given during the trial of Mr Zulkarnayev, whose cellmates testified that he had sustained injuries, including a broken arm, while being detained in the Nozhay-Yurtovskiy IVS (see paragraph 86 above).

116.  The Court observes that between 2002 and 2006 the applicants were detained in the ORB-2 and were allegedly ill-treated there with a view to extracting confession statements. The Court notes that it has previously examined similar complaints of ill-treatment occurring on the premises of the ORB-2 in 2002, 2003 and 2006, and found violations of Article 3 of the Convention on account of torture (see Tangiyev, cited above, § 63; Mukayev v. Russia, no. 22495/08, § 77, 14 March 2017; and Abdulkadyrov and Dakhtayev v. Russia, no. 35061/04, § 71, 10 July 2018). The torture suffered by the applicants in those cases was similar to the treatment described by the applicants in the present case, involving beatings, electric shocks and gas masks. In this regard the Court takes particular note of the observations made by the CPT after their visits in 2003 and 2007 and which qualified ORB-2 as a facility which stood out in terms of frequency and gravity of ill-treatment (see paragraphs 93-94 above).

117.  The Court further observes that the Government failed to provide the applicants’ medical records attesting to their state of health during their detention at the ORB-2 and other detention facilities (see paragraphs 33, 39, 43 and 88 above). This failure is compounded by the fact that during their detention at the ORB-2 without proper medical and legal assistance, the applicants gave confession statements which were used for their conviction. In this regard the Court also notes its case-law concerning similar allegations of ill‑treatment at the ORB-2 at around the same time as the events in issue in the present case (see paragraph 116 above). In view of the above, the Court has sufficient grounds to consider that the applicants’ allegations of ill-treatment by State officers, in particular at the ORB-2, were credible (see Abdulkadyrov and Dakhtayev, cited above, § 62).

118.  The Court 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, § 85, 2 May 2017). It finds that the repeated acts of violence to which the applicants were subjected by ORB-2 officers, given their severity and the aim of obtaining confessions, amounted to torture (see Tangiyev, cited above, § 56).

119.  In view of the above, the Court concludes that there has been a violation of Article 3 of the Convention under its substantive limb.Adequacy of the investigation

120.  The Court observes that the applicants’ credible allegations of their injuries being the result of violence by State officers were dismissed by the investigating authorities as unfounded mainly on the basis of the State officers’ statements denying having ill-treated the applicants or for the alleged absence of the applicants’ injuries (see paragraphs 20, 24, 48, 52, 66, 70 and 88 above).

121.  The Court has previously found that in the context of the Russian legal system in cases of credible allegations of treatment proscribed under Article 3 of the Convention, it is incumbent on the authorities to open a criminal case and conduct a proper criminal investigation. The Court has no reason to hold otherwise in the present cases, which involve credible allegations of particularly serious ill-treatment (see Abdulkadyrov and Dakhtayev, cited above, § 65).

122.  There has, accordingly, been a violation of Article 3 of the Convention under its procedural limb.

123.  In view of the above, 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 Mr Orazbayev, Mr Satabayev and Mr Zulkarnayev.ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

124.  Mr Satabayev and Mr Zulkarnayev complained that they had been held in unrecorded detention following their arrest in breach of Article 5 § 1 of the Convention, the relevant part of which reads as follows:

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

125.  The Government did not comment.Admissibility

126.  The Court notes that the complaints under Article 5 § 1 of the Convention are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.Merits

127.  The Court observes that Mr Satabayev and Mr Zulkarnayev were arrested on 5 March 2002 and 15 April 2006 respectively. Their arrests were recorded on 6 March 2002 and 25 April 2006 respectively (see paragraphs 28 and 77 above). Mr Satabayev was in unrecorded detention for one day and Mr Zulkarnayev for ten days. These facts are confirmed by the material in the case file and have not been disputed by the Government.

128.  The Court finds that the applicants’ unrecorded detention was a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention, and was incompatible with the requirement of lawfulness and with the very purpose of this Article (see Fartushin v. Russia, no. 38887/09, § 54, 8 October 2015). There has accordingly been a violation of Article 5 § 1 of the Convention in respect of Mr Satabayev and Mr Zulkarnayev.ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

129.  Mr Orazbayev, Mr Chapanov and Mr Zulkarnayev complained that their convictions had been based on confession statements obtained as a result of their ill-treatment, which had rendered their trials unfair. They relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows:

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

130.  The Court notes that the 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.Merits

131.  The applicants maintained their complaints. The Government argued that in addition to the applicants’ written confession statements, their convictions had been based on other evidence obtained during the investigations. The trial courts had examined the applicants’ allegations of ill-treatment and had dismissed them as unsubstantiated.

132.  The Court reiterates that the admission of confession statements obtained as a result of torture renders the associated 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).

133.  The Court further reiterates that when dealing with allegations that evidence has been obtained as a result of ill‑treatment, the trial court may be called upon to assess the same facts and elements which had previously been subject to the investigative authorities’ examination. However, its task is not to examine the individual criminal responsibility of the alleged perpetrators but to address through a full, independent and comprehensive review the issue of admissibility and reliability of evidence. Admission in evidence of testimony notwithstanding credible allegations that it was obtained as a result of ill-treatment raises serious issues as to the fairness of the proceedings (see Belugin v. Russia, no. 2991/06, § 74, 26 November 2019).

134.  In the present cases, the Court has already found that the applicants were subjected to torture at the hands of State officers (see paragraph 118 above), as a result of which the applicants gave confession statements, which were subsequently used for their conviction. The domestic courts did not exclude the confession statements as inadmissible evidence, relying on the investigators’ decisions not to open criminal cases into the alleged ill‑treatment (see paragraphs 25, 72 and 89 above), and referred to them when convicting the applicants of crimes to which they had confessed in those statements.

135.  The Court concludes that the trial courts failed to carry out an independent and comprehensive review of the applicants’ credible allegations that their self-incriminating statements had been the result of police violence (see Belugin, cited above, § 81).

136.  In such circumstances, the Court concludes that the domestic courts’ use of the applicants’ confessions obtained as a result of torture, regardless of their impact on the outcome of the criminal proceedings, rendered the applicants’ trials unfair.

137.  Accordingly, there has been a violation of Article 6 § 1 of the Convention in respect of Mr Orazbayev, Mr Chapanov and Mr Zulkarnayev.APPLICATION OF ARTICLE 41 OF THE CONVENTION

138.  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.”Damages, costs and expenses

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

140.  The Court granted legal aid in the amount of 850 euros (EUR) to Mr Chapanov. Mr Chapanov also claimed EUR 800 for expenses allegedly incurred in the national proceedings. He did not provide copies of receipts or other documents in support of his claim.

141.  The applicants provided legal contracts with their representatives.

142.  The Government contested the claims, arguing that a finding of a violation would constitute sufficient just satisfaction.The Court’s assessment

143.  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 findings of violations and make a financial award.

144.  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).

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

146.  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 applications admissible;Holds that there has been a violation of Article 3 of the Convention under its substantive and procedural limbs in that the applicants were subjected to torture in police custody, and that no effective investigation into their complaints was carried out by the authorities;Holds that there has been a violation of Article 5 § 1 of the Convention in respect of Mr Satabayev and Mr Zulkarnayev on account of their unrecorded detention;Holds that there has been a violation of Article 6 § 1 of the Convention in respect of Mr Orazbayev, Mr Chapanov and Mr Zulkarnayev;Holds that there is no need to examine the complaint under Article 13 of the Convention;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 them, 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 13 July 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova Darian Pavli
Deputy RegistrarPresident

APPENDIX

List of cases:

No.

Case name

Application no.

Lodged on

Applicant

Date of birth

Place of residence

Nationality

Represented by

Non-pecuniary damage

Costs and expenses

1

Orazbayev v. Russia

15367/07

31/01/2007

Eldar ORAZBAYEV

1977

Siyezha

Russian

STICHTING RUSSIAN JUSTICE INITIATIVE

Sought by the applicant

EUR 50,000

EUR 6,409

Awarded by the Court

EUR 50,000

(fifty thousand euros)

EUR 3,000[1]

(three thousand euros)

2

Satabayev v. Russia

7927/08

28/01/2008

Timur SATABAYEV

1976

Nizhniy Tagil

Russian

STICHTING RUSSIAN JUSTICE INITIATIVE

Sought by the applicant

EUR 50,000

EUR 7,620

Awarded by the Court

EUR 50,000

(fifty thousand euros)

EUR 3,000[2]

(three thousand euros)

3

Chapanov v. Russia

16321/08

07/02/2008

Umar CHAPANOV

1977

Bor

Russian

Eduard Valentinovich MARKOV

Sought by the applicant

EUR 20,000

EUR 3,890

Awarded by the Court

EUR 20,000

(twenty thousand euros)

EUR 2,150[3]

(two thousand one hundred and fifty euros)

4

Zulkarnayev v. Russia

30478/08

05/06/2008

Muslim ZULKARNAYEV

1977

Yoshkar-Ola

Russian

STICHTING RUSSIAN JUSTICE INITIATIVE

Sought by the applicant

EUR 50,000

EUR 5,147

Awarded by the Court

EUR 50,000

(fifty thousand euros)

EUR 3,000[4]

(three thousand euros)

[1] The amount is to be paid to the bank account of the applicant’s representative.

[2] The amount is to be paid to the bank account of the applicant’s representative.

[3] The amount is to be paid to the bank account of the applicant’s representative.

[4] The amount is to be paid to the bank account of the applicant’s representative.

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