CASE OF SERGEY RYABOV v. RUSSIA

THIRD SECTION

CASE OF SERGEY RYABOV v. RUSSIA

(Application no. 2674/07)

JUDGMENT

STRASBOURG

17 July 2018

FINAL

17/10/2018

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Sergey Ryabov v. Russia,

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

Helena Jäderblom, President,
Branko Lubarda,
Helen Keller,
Dmitry Dedov,
Pere Pastor Vilanova,
Alena Poláčková,
María Elósegui, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 19 June 2018,

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

PROCEDURE

1. The case originated in an application (no. 2674/07) 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 Sergey Yevgenyevich Ryabov (“the applicant”), on 18 December 2006.

2. The applicant was represented by Ms K. Moskalenko and Ms. A. Maralyan, lawyers from the International Protection Centre, an NGO based in Moscow, Russia. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3. The applicant alleged, in particular, that he had been subjected to ill‑treatment in police custody and that the use of confession statements made as a result of his ill-treatment in securing his conviction had rendered his trial unfair.

4. On 14 March 2013 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1980. He is currently serving a prison sentence in Bezhetsk, Tver Region.

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

6. On 10 July 2005 the body of B., a police driver with the Ruza District Police Department of the Moscow region (ОВД Рузского района Московской области), was found with multiple injuries near the village of Baranovo in the Ruza District. The next day the Ruza town prosecutor’s office opened criminal investigation into B.’s murder.

7. On 11 July 2005 at night the applicant was arrested in P.’s house by three police officers. According to him, he did not resist the arrest, but the police officers kicked and punched him on the legs, in the kidneys and around the groin region at least seven times. After the arrest he was taken to a temporary detention facility (IVS) located on the premises of the Ruza district police department. Then two police officers took him out of the cell and led him to a room. There one of the officers hit the applicant with a rubber truncheon all over his body about twelve times. Then they brought him back to the IVS cell. Soon afterwards another officer entered the cell and punched the applicant in the face and body about five times. During the ill-treatment the officers demanded that the applicant confess to B.’s murder.

8. At 4.05 a.m. on 11 July 2005 in the IVS, L., an investigator with the Ruza town prosecutor’s office, drew up a record of the applicant’s arrest. Between 3.05 p.m. and 5.20 p.m. the applicant was examined as a suspect in the presence of a State-appointed lawyer, K., in the IVS. The applicant confessed to the crime, stating that he had inflicted several blows to the victim’s body. It was stated in the record of the interview that the applicant had been informed of his right under Article 51 of the Constitution not to incriminate himself.

9. On the same day the applicant’s family members were notified of his arrest. They retained a lawyer, R., who came to see the applicant on the same day. According to the applicant, the prosecutor of the Ruza district denied R. access to him on the grounds that the latter was being examined as a suspect in the presence of the State-appointed lawyer at that moment.

10. On the evening of 11 July 2005 the applicant’s mother saw the applicant appearing in a television programme, Vremechko. According to her, he could hardly move and bore evident signs of ill-treatment. At 10.35 p.m. on the same day, R. sent a telegram to the Ruza district prosecutor’s office asking for a meeting with the applicant. He also requested the medical examination of the applicant, who had been allegedly subjected to ill-treatment in the IVS. The next day R. repeated these requests in another telegram sent to the Moscow Region prosecutor’s office.

11. On 12 July 2005 the applicant was brought before a judge of the Ruza District Court, who ordered that he be placed in pre-trial detention. R., who represented the applicant at the hearing, submitted that the latter had been subjected to ill-treatment by the police officers from the moment of his arrest. The prosecutor responded that the telegrams sent by R. containing these allegations had been received and that there would be an inquiry into them.

12. According to the applicant, during the hearing on 12 July 2005 he had informed the judge and the prosecutor of his ill-treatment by police officers and had showed them traces of the beatings. However, they had remained unresponsive, not reacting to his allegations. After the hearing the escorting guards had taken the applicant to the first floor of the courthouse and subjected him to ill-treatment. They had punched him in the kidney region, demanding that he confess to the crime. The beatings had continued for about ten minutes, with breaks; afterwards the applicant had been taken to the IVS.

13. On 13 July 2005, following a meeting with the applicant, R. lodged an application with the Ruza district prosecutor’s office for the applicant’s immediate transfer to a remand centre in Mozhaysk, Moscow Region. He stated that the applicant had been subjected to ill-treatment by the police at the Ruza district police department and that the implicated police officers could interfere with the investigation of this incident. He sent a similar complaint to the Moscow Region prosecutor’s office on the following day, adding that three of B.’s brothers had worked at the Ruza district police department at the time of the applicant’s detention in that facility. According to the applicant, he was transferred to remand centre IZ‑50/4 in Mozhaysk, Moscow Region only on 24 July 2005.

B. Pre-investigation inquiry into the applicant’s complaint of ill‑treatment

14. On 12 and 13 July 2005 the applicant complained to the Moscow regional prosecutor of his alleged ill-treatment by police officers during his apprehension, while in police custody and while in the courthouse.

15. On 14 July 2005 a forensic medical expert from the Ruza Forensic Medical Bureau examined the applicant at the request of an investigator from the prosecutor’s office. The expert recorded the following injuries: (i) two bruises on the eyelids measuring 3 cm by 2.5 cm and 2.5 cm by 1.5 cm; (ii) a bruise on the chin measuring 3 cm by 3 cm, with abrasions on its surface 1.5 cm by 1.5 cm in size; (iii) eleven bruises on the back measuring from 0.3 cm by 0.7 cm to 7 cm by 1.5 cm; (iv) nineteen bruises on the chest and stomach measuring from 1 cm by 1 cm to 2 cm by 13 cm; (v) two abrasions on the left leg (from the knee to the foot) measuring 1 cm and 5 cm long, respectively, and (vi) a 6-cm-long abrasion on the internal side of the left hip. The applicant stated that the injuries had been inflicted during his arrest and while he had been in police custody by police officers who had punched and kicked him and beaten him with a truncheon. The expert concluded that the injuries could have been inflicted on the date and in the circumstances described by the applicant with a hard blunt object of limited surface area. He specified that bruises could have been inflicted with a hard blunt object of an elongated shape, and that the applicant’s injuries were unlikely to have been caused by his falling from his own height.

16. On 21 July 2005, following a pre-investigation inquiry, a deputy prosecutor of Ruza refused to institute criminal proceedings against two police officers, Sh. and D.K., for lack of the elements of a crime in their actions, and against unidentified police officers for lack of evidence of a crime in their actions. He found, in particular, that the applicant’s injuries could have been the result of the lawful use of force by Sh. and D.K. when apprehending the applicant, who had resisted arrest. They stated that they had used force lawfully during the applicant’s arrest and submitted that they had had to lay him down on the floor, and while handcuffing him, had pressed their knees into his back to keep him still. The decision stated that P., who had been present during the applicant’s arrest, had not confirmed the applicant’s allegations of ill-treatment. The deputy prosecutor also considered that the applicant’s alleged ill-treatment in the IVS by unidentified police officers had not been confirmed. He relied on the statements of officers U., B. and V.P. (who had been on duty in the IVS on 11 July 2005) and denied any malpractice in respect of the applicant.

17. In August 2005 the Ruza town prosecutor made a submission (представление) to the head of the Ruza district police department, requiring him to conduct an internal inquiry into the applicant’s ill-treatment by unidentified police officers in the IVS and to subject those responsible to disciplinary proceedings.

18. R. lodged an appeal against the decision of 21 July 2005 with the Ruza District Court. On 16 August 2005 the Ruza town prosecutor annulled the decision of 21 July 2005 and ordered an additional inquiry into the applicant’s allegations of ill‑treatment. In his decision the prosecutor held that the investigator should adduce the results of the ongoing internal inquiry into the alleged unlawfulness of the applicant’s detention in the IVS, verify the applicant’s allegations, and assess them.

19. By an order of 22 August 2005 the head of the Ruza district police department reprimanded officers U. and B., who had been on duty in the IVS when the applicant had been brought there, for lack of diligence. He found that – in breach of the law on the pre-trial detention of suspected and accused persons – on 11 July 2005 two unidentified police officers had taken the applicant out of the cell and subjected him to ill-treatment.

20. On 26 June 2006 R. lodged a request with the Ruza town prosecutor to inform him of the results of the additional inquiry. On 30 June 2006 the prosecutor provided him with a copy of a decision issued by an investigator of the Ruza town prosecutor’s office dated 23 August 2005 refusing to open criminal proceedings against the police officers. The investigator of the Ruza town prosecutor’s office, N., maintained the findings made in the decision of 21 July 2005.

21. In August 2006 R. lodged an appeal against the decision of 23 August 2005 with the Ruza Town Court. He argued that the investigating authority had failed to explain the origin of the applicant’s injuries.

22. On 9 October 2006 the Ruza District Court decided that the above‑mentioned decision had been unlawful and unsubstantiated and that an additional inquiry was needed. It held that the investigator had failed to address the instructions given by the prosecutor in his decision of 16 August 2005 – in particular, to take all necessary measures to identify the culprits and to hold them criminally responsible.

23. According to the Government, on 26 October 2006 the investigator of the Ruza Town Prosecutor’s Office issued a new decision refusing to institute criminal proceedings against police officers. However, they failed to produce a copy of this decision. According to the applicant, neither he nor his lawyer was notified about it.

C. The applicant’s trial

24. On 28 February 2006 a jury trial against the applicant and his co‑defendant began before the Moscow Regional Court. The applicant pleaded not guilty. At the hearing of 14 March 2006, L., who represented the applicant during the trial, requested that the record of the applicant’s interview as a suspect be declared inadmissible and excluded from the body of evidence. He submitted that the statements made in the course of that interview had been obtained by means of the applicant’s ill-treatment and in the presence of a State-appointed lawyer, who had not acted in the applicant’s best interests. L. also requested to examine the report of 14 July 2005 containing the results of the applicant’s forensic medical examination.

25. The trial court refused both requests, noting that the allegations of ill-treatment by the police officers were unconfirmed. It relied on the refusal of 23 August 2005 to open a criminal case on account of the alleged ill‑treatment (see paragraph 20 above), which had gone unchallenged at the time. The court also noted that the applicant had not objected to the participation of K., the State-appointed lawyer, in the proceedings and had made no remarks in the interview record to the effect that he had rejected his services. Furthermore, the court considered that the contents of the report by forensic medical expert did not constitute part of the factual circumstances to be determined by the jury. It therefore allowed to be read out before the jury the record of the applicant’s interview as a suspect of 11 July 2005.

26. On 11 April 2006 the jury found the applicant guilty of battery, the misappropriation of a car, murder, the causing of intentional damage to property, and the acquisition of property obtained in a criminal manner. The Moscow Regional Court sentenced him to eighteen years’ imprisonment.

27. The applicant lodged an appeal against the judgment with the Russian Supreme Court, complaining, inter alia, that the initial statements that he had given during the investigation had been inadmissible.

28. On 13 July 2006 the Supreme Court of Russia dismissed the applicant’s appeal and upheld the judgment of the Moscow Regional Court. It stated that the trial court had duly assessed the applicant’s allegations of ill-treatment, noting that the applicant had never denied the use of force by the police to restrain him during his apprehension.

29. On 12 October 2007, at the applicant’s lawyer’s request, the Ruza prosecutor’s office re-opened the criminal case on account of newly discovered circumstances – namely certain information in the victim’s medical records. However, the proceedings were terminated on 25 October 2007, and (following an appeal by the applicant’s lawyer) by a final decision of 18 February 2008 the Supreme Court upheld that decision.

II. RELEVANT DOMESTIC LAW

30. Article 413 of the Code of Criminal Procedure sets out the procedure for the reopening of criminal cases and reads, in so far as relevant, as follows:

“1. Court judgments and decisions which became final should be quashed and proceedings in a criminal case should be reopened [in the light of] new or newly discovered circumstances.

...

4. New circumstances are:

...

(2) a violation of a provision of the European Convention for the Protection of Human Rights and Fundamental Freedoms committed by a court of the Russian Federation during an examination of a criminal case and established by the European Court of Human Rights, pertaining to:

(a) the application of a federal law which runs contrary to provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms;

(b) other violations of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms; ...”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

31. The applicant complained that he had been subjected to ill-treatment during his arrest and while in police custody by the police officers with a view to obtaining his confession to a crime. He further complained under Articles 3 and 13 of the Convention that no effective investigation into his complaint had been carried out.

32. The Court will examine both aspects of the complaint under Article 3 of the Convention, which reads as follows:

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

33. The Government pleaded non-exhaustion of domestic remedies, arguing that the applicant had not appealed against the investigator’s decision of 26 October 2006. They also submitted that the documents relating to the domestic inquiry into the applicant’s allegations of police ill‑treatment had been destroyed on 15 December 2011. Furthermore, the Government stated that it was impossible to establish the place of the applicant’s detention from the moment of his arrest at 4.05 a.m. on 11 July 2005 until the delivery of the detention order on the next day because the IVS of the Ruza district police department had been closed down in 2010.

34. The applicant maintained his complaints and noted that he had appealed against two decisions refusing to open a criminal case against police officers. Both decisions had been annulled, either by a prosecutor or by a court. The applicant also submitted that he had not been served with a copy of the last decision (of 26 October 2006). Hence, he had not been able to appeal against it.

A. Admissibility

35. As regards the Government’s plea of non-exhaustion of domestic remedies, the Court notes that the applicant appealed against the investigator’s decisions of 21 July and 23 August 2005 to the domestic courts. Both decisions were subsequently annulled. The last decision (that is to say the decision of 23 August 2005) supported the same findings as those set out in the decision of 21 July 2005 and did not address the defects indicated by the prosecutor when annulling the earlier one. In these circumstances, the Court is not convinced that an appeal to a court by the applicant against the investigator’s decision of 26 October 2006, which could only have had the same effect – that is to say the annulment of the decision – would have offered the applicant any redress (see Mikhail Nikolayev v. Russia, no. 40192/06, § 76, 6 December 2016).

36. Moreover, in the present case the Court is unable to establish whether it was possible for the applicant to challenge the investigator’s decision of 26 October 2006. Neither party produced a copy of that decision; the applicant argued that he had never received such a copy. The Court cannot therefore accept that the appeal against the investigator’s decision was readily available or accessible to the applicant (see Mostipan v. Russia, no. 12042/09, §§ 39-40, 16 October 2014). It finds that the applicant was not obliged to pursue that remedy, and that the Government’s objection should therefore be dismissed.

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

B. Merits

38. The relevant general principles were reiterated by the Court in the case of Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-88, ECHR 2015). In particular, where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. The burden of proof is then on the Government to provide a satisfactory and convincing explanation by producing evidence establishing facts which cast doubt on the version of events given by the victim. In the absence of such an explanation, the Court can draw inferences which may be unfavourable for the Government. That is justified by the fact that those in custody are in a vulnerable position and the authorities are under a duty to protect them (ibid., § 83).

39. The Court further reiterates its established case-law that the use of force by the police in the course of arrest operations will not be in breach of Article 3 of the Convention if such force is indispensable and not excessive. The burden of proving this rests on the Government (see Rehbock v. Slovenia, no. 29462/95, §§ 72-78, ECHR 2000‑XII, and, among recent authorities, Boris Kostadinov v. Bulgaria, no. 61701/11, §§ 52-54, 21 January 2016).

1. Credibility of the applicant’s allegations of ill-treatment in police custody and the presumption of fact

40. The Court observes that the applicant was arrested as a suspect in criminal proceedings on 11 July 2005 in the morning and brought to the temporary detention facility. Although there is no official record confirming his admission to the IVS of the Ruza District Police Department, the officers on duty did not deny that the applicant had been detained in that facility on 11 July 2005 (see paragraph 16 above). Moreover, according to the results of the internal inquiry at the Ruza district police department, at some point the applicant was taken by two unidentified police officers out of his IVS cell and subjected to ill-treatment (see paragraph 19 above). The forensic medical expert found that the applicant had multiple injuries which could have been inflicted on 11 July 2005 with a hard blunt object; the bruises could have been the result of impact with a hard blunt object of an elongated shape. The Court considers that these injuries could arguably have resulted from blows allegedly delivered to the applicant’s body by police officers (see paragraph 15 above).

41. The fact that victim B. was a police driver with the Ruza District police department at the time that he was killed (see paragraph 6 above) indicates that the applicant was vulnerable vis-à-vis police officers.

42. The above-mentioned factors are sufficient to give rise to a presumption in favour of the applicant’s account of events and to satisfy the Court that the applicant’s allegations of ill-treatment in police custody were credible. The State was therefore obliged to carry out an effective official investigation (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000‑IV).

2. Whether an effective investigation was carried out into the applicant’s allegations of police ill-treatment

43. The Court further observes that the applicant’s allegations of his injuries being the result of police ill-treatment were dismissed by the domestic investigating authorities. The investigators based their findings on the results of the pre-investigation inquiry, which is the initial stage in dealing with a criminal complaint under Russian law and should normally be followed by the opening of a criminal case and the carrying out of an investigation if the information gathered has disclosed elements of a criminal offence (see Lyapin v. Russia, no. 46956/09, § 129, 24 July 2014). Two investigator’s decisions refusing to open a criminal case were each time annulled by either a higher prosecutor or following a court’s decision for having been based on an incomplete inquiry, and a fresh inquiry was ordered. The third and last investigator’s decision, also refusing to open a criminal case, has apparently never been communicated to the applicant.

44. 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 fully fledged criminal investigation in which a full range of investigative measures are carried out (ibid., §§ 129 and 132-36).

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

3. Whether the Government provided explanations capable of casting doubt on the applicant’s version of events

46. The Government maintained the conclusions of the investigating authorities to the effect that all of the applicant’s injuries had been the result of the lawful use of force by the police in arresting the applicant, owing to his active resistance.

47. The Court observes that the investigating authorities based their conclusions almost exclusively on the general statements made by police officers that they had used force lawfully. The investigators did not establish any specific acts undertaken by the police officers when using force or any actions on the part of the applicant which could have justified the use of force – that is to say they did not assess whether such force had been indispensable and not excessive. Moreover, the police officers’ explanation that they had laid the applicant down on the floor and pressed their knees into his back during his arrest sits ill with the number and the nature of injuries recorded by the forensic medical expert (thirty-three bruises and three abrasions on the face, back, chest, stomach and left leg).

48. Furthermore, it was acknowledged in the internal inquiry by the head of the Ruza district police department that on 11 July 2005 two police officers had subjected the applicant to ill-treatment (see paragraph 19 above).

49. Given that the Government’s explanations were provided as a result of the superficial domestic inquiry which fell short of the requirements of Article 3 of the Convention (see paragraph 45 above), the Court finds that they cannot be considered satisfactory or convincing. It holds that the Government have failed to discharge their burden of proof and produce evidence capable of casting doubt on a part of the applicant’s account of events that is supported by medical evidence, and which it therefore finds established.

4. Legal classification of the treatment

50. The Court reiterates that it has deemed “inhuman” any treatment that was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering. Treatment has been held to be “degrading” when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance, or when it was such as to drive the victim to act against his will or conscience (see Gäfgen v. Germany [GC], no. 22978/05, §§ 89-90, ECHR 2010, and the cases cited therein).

51. Having regard to the level of violence and the type of injuries that the applicant had, the Court finds that the police subjected him to inhuman and degrading treatment.

5. Conclusion

52. There has accordingly been a violation of Article 3 of the Convention under its substantive and procedural limbs.

II.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

53. The applicant complained that his conviction had been based on the self-incriminating statements he had made as a result of his ill-treatment, and in the absence of a lawyer of his choice. He relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows:

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

54. The Government contested that argument, referring to the findings of the judicial authorities. They pointed out that the applicant’s allegations of ill-treatment had been unconfirmed and that his injuries had been the result of the lawful use of force by the police in the course of his apprehension. The applicant had been interviewed as a suspect in the presence of a State‑appointed lawyer, whose services he had not declined. The disputed evidence had not been the sole evidence on which the applicant’s conviction had been based. The Government therefore considered that the complaint was manifestly ill‑founded.

55. The applicant maintained his complaint. He claimed that the State‑appointed lawyer had not acted in his best interests, and that in particular, he had not noticed the applicant’s multiple bruises and abrasions, and that his presence during the applicant’s interview as a suspect could not be regarded as constituting a sufficient safeguard against the violation of his rights.

A. Admissibility

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

B. Merits

57. The Court reiterates that the admission of confession statements obtained as a result of torture or of other ill-treatment in breach of Article 3 as evidence to establish the relevant facts in criminal proceedings renders the proceedings, as a whole, unfair. This finding applies irrespective of the probative value of the statements and irrespective of whether their use was decisive in securing the defendant’s conviction (see Gäfgen, cited above, § 166, with further references, and, among recent authorities, Turbylev v. Russia, no. 4722/09, § 90, 6 October 2015).

58. The Court has found that the applicant was subjected to inhuman and degrading treatment in police custody (see paragraph 51 above). It observes that on 11 July 2005 the applicant gave self-incriminating statements in the course of his interview as a suspect. Those statements formed part of the evidence adduced against him. The Moscow Regional Court did not find them inadmissible, and the jury took them into account when finding the applicant guilty. The court failed to carry out its own independent assessment of the relevant medical and other evidence with a view to ascertaining whether there were reasons to exclude from evidence those statements, which had allegedly been obtained in breach of Article 3 of the Convention. Instead, it relied on the investigating authorities’ decision, which the Court has found to have been based on an inquiry falling short of Article 3 requirements. This lack of a careful assessment of the quality of the impugned evidence and the circumstances in which it was obtained was not remedied by the Supreme Court of the Russian Federation.

59. In such circumstances, the Court is not convinced by the Government’s argument that the applicant’s self-incriminating statements should be regarded as having been given voluntarily. It concludes that, regardless of the possible impact of the applicant’s statements, which were obtained under duress, on the outcome of the criminal proceedings against him, their use in evidence rendered the applicant’s trial unfair (see, for similar reasoning, Tangiyev v. Russia, no. 27610/05, § 76, 11 December 2012, and Zamferesko v. Ukraine, no. 30075/06, §§ 70-71, 15 November 2012). This finding makes it unnecessary to examine separately the applicant’s complaint that the legal assistance provided to him by K., the State-appointed lawyer, had rendered his trial unfair (see Aleksandr Konovalov v. Russia, no. 39708/07, § 55, 28 November 2017).

60. There has therefore been a violation of Article 6 § 1 of the Convention.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

61. The applicant raised additional complaints under Article 6 of the Convention. However, having regard to all the material in its possession, and in so far as these complaints fall within the Court’s competence, it 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.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

62. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

63. The applicant claimed 10,000 euros (EUR) in respect of non‑pecuniary damage in the event that the State quashed his conviction and started a new trial, excluding from the body of evidence his self‑incriminating statements given after arrest. In the event that the State refused to start a new trial, the applicant claimed EUR 150,000 in respect of non-pecuniary damage. The applicant also asked that the domestic authorities be obliged to carry out an effective investigation into his complaints of ill-treatment by the police.

64. The Government contested the claims as unsubstantiated, pointing out that they are linked to the alleged unlawfulness of the applicant’s conviction. In their view, the satisfaction of the applicant’s claims would amount to setting aside the judgment in respect of the applicant and acquitting him of all criminal charges, which falls beyond the Court’s competence.

65. The Court notes that it has found violations of Articles 3 and 6 of the Convention in the present case. In those circumstances, the Court considers that the applicant’s suffering and frustration cannot be compensated for by the mere finding of a violation. Having regard to its well-established case‑law and making its assessment on an equitable basis, the Court awards the applicant EUR 10,000, plus any tax that may be chargeable.

66. Furthermore, the Court refers to its settled case-law to the effect that when an applicant has suffered an infringement of his rights guaranteed by Article 6 of the Convention, he should, as far as possible, be put in the position in which he would have been had the requirements of that provision not been disregarded. The most appropriate form of redress would, in principle, be the reopening of the proceedings, if requested (see, mutatis mutandis, Öcalan v. Turkey [GC], no. 46221/99, § 210 in fine, ECHR 2005‑IV, and Sakhnovskiy v. Russia [GC], no. 21272/03, § 112, 2 November 2010). This applies to the applicant in the present case. The Court notes, in this connection, that Article 413 of the Code of Criminal Procedure provides a basis for the reopening of the proceedings if the Court finds a violation of the Convention (see paragraph 30 above).

B. Costs and expenses

67. The applicant also claimed 150,000 Russian roubles for the legal costs incurred at the preliminary investigation, before the domestic courts in the criminal proceedings against him, and before the Court.

68. The Government contested the claims on the ground that there was no proof that they had actually been incurred.

69. 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. The Court is satisfied that the contract for legal services (in respect of the domestic proceedings and those before the Court) concluded with the applicant’s lawyer created legally enforceable obligations to pay the amounts indicated therein. The Court also notes that not all of the complaints submitted by the applicant were declared admissible. Regard being had to these considerations, the documents in its possession, and the above-mentioned criteria the Court considers it reasonable to award the sum of EUR 2,000 for the domestic proceedings and the proceedings before it, plus any tax that may be chargeable.

C. Default interest

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

FOR THESE REASONS, THE COURT, UNANIMOUSLY

1. Declares the complaints concerning the applicant’s alleged ill-treatment, the ineffectiveness of the ensuing investigation and the use at the trial of the confession statements allegedly obtained under duress admissible and the remainder of the application inadmissible;

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

3. Holds that there has been a violation of Article 6 § 1 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final, in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;

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

Done in English, and notified in writing on 17 July 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stephen PhillipsHelena Jäderblom
RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Keller, Pastor Vilanova and Elósegui is annexed to this judgment.

H.J.
J.S.P.

JOINT CONCURRING OPINION OF JUDGES KELLER, PASTOR VILANOVA AND ELÓSEGUI

71. We fully agree with the majority in their finding of a violation of Article 3 (see paragraph 52 of the judgment), although we cannot join them in their classification of the ill-treatment suffered by the applicant as inhuman and degrading treatment (see paragraphs 50-51 of the judgment). For the reasons below, we consider that it should instead be classified as torture.

72. Our case-law has primarily attached weight to two factors when classifying ill-treatment as torture. First, the Court has had regard to the “intensity” of the suffering (see Ireland v. the United Kingdom, 18 January 1978, § 167, Series A no. 25). Therefore, the special stigma of torture should be attached to “deliberate inhuman treatment causing very serious and cruel suffering” (see Aksoy v. Turkey, 18 December 1996, § 63, Reports of Judgments and Decisions 1996-VI; Selmouni v. France [GC], no. 25803/94, § 96, ECHR 1999‑V; and Gäfgen v. Germany [GC], no. 22978/05, § 90, ECHR 2010). Second, the Court has noted the “purposive” element in torture, namely “the aim, inter alia, of obtaining information, inflicting punishment or intimidating” (see Akkoç v. Turkey, nos. 22947/93 and 22948/93, § 115, ECHR 2000‑X, and Gäfgen, cited above, § 90; see also Article 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment).

73. The Court has to balance these elements against each other in every particular case. Some forms of ill-treatment might not be sufficient to constitute torture by themselves, but might be so when attached to a particular purpose such as extracting information from a suspect. When the ill-treatment has been inflicted with the purpose of obtaining a confession, the Court has paid particular attention to that fact (see Aksoy, cited above, § 64; Dikme v. Turkey, no. 20869/92, §§ 95-96, ECHR 2000‑VIII; Salman v. Turkey [GC], no. 21986/93, § 115, ECHR 2000‑VII, in which the Court had regard not only to the “nature and degree of the ill-treatment” but also to the “strong inferences that [could] be drawn from the evidence that it [had] occurred during interrogation”; and Selmouni, cited above, § 98).

74. We think this approach should have been followed in this case. It appears from the applicant’s account of the facts (which was found to be credible by the Court, see paragraph 42 of the judgment) that the aim of the ill-treatment was to obtain information from the applicant and force him to confess to his alleged crime (see paragraph 7 of the judgment). This should be viewed in conjunction with the fact that the treatment he suffered was severe enough to place it, in our view, at the boundary of what constitutes torture: according to his account of events, he was kicked and punched several times all over his body (see paragraph 7 of the judgment). The applicant’s account was confirmed by a forensic medical expert who noted, inter alia, the existence of eleven bruises on his back and a further nineteen on his chest and stomach (see paragraph 15 of the judgment).

75. The severity of this ill-treatment, viewed in the light of its purpose of extracting a confession, should have prompted the Court to classify it as torture under Article 3.

 

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