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Rusya 07.12.2006 EN

CASE OF SHEYDAYEV v. RUSSIA

Avrupa İnsan Hakları Mahkemesi

Karar Metni

FIRST SECTION

(Application no. 65859/01)

JUDGMENT

STRASBOURG

7 December 2006

FINAL

23/05/2007

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Sheydayev v. Russia,

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

MrC.L. Rozakis, President,
MrL. Loucaides,
MrsF. Tulkens,
MrsN. Vajić,
MrA. Kovler,
MrD. Spielmann,
MrS.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,

Having deliberated in private on 16 November 2006,

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

PROCEDURE

1. The case originated in an application (no. 65859/01) 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 Roman Yakhyabekovich Sheydayev, on 23 January 2001.

2. The Russian Government (“the Government”) are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.

3. On 12 November 2004 the Court decided to communicate the complaint concerning the alleged ill-treatment to the respondent Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. The Government requested the Court to discontinue the application of Article 29 § 3 of the Convention. The Court decided to reject this request.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1978 and lives in Derbent, the Republic of Dagestan.

5. The applicant at the material time was performing contractual military service in a military unit in the Republic of Dagestan. On 16 December 1999 he was examined by the Military Medical Commission in Kislovodsk (военно-врачебная комиссия ОВГ г. Кисловодск) and found fit for military service. The only illness recorded was mild myopia of the left eye.

1. Alleged ill-treatment of the applicant

(a) Detention in the Town Police Station

6. On 21 December 1999, at 9.30 a.m., the applicant was taken by police officers to the Derbent Town Police Station (Дербентское ГОВД) to be questioned, apparently as a witness, in connection with an investigation of an incident of violent hooliganism.

7. The applicant submits that during his stay in the police station from 21 to 24 December 1999 he was continuously beaten by up to five police officers who were trying to coerce him to confess of having committed the above offence.

8. The police officers punched the applicant in the area of his left ear and neck. They pushed him down on the floor, kicked him and hit him with a chair-leg. During the beatings the police officers threatened the applicant that a harsh sentence would be imposed on him and that they would physically abuse and sodomise him.

9. On the second day, the police officers tied the applicant up and started to punch him in his face and body and hit him with a chair-leg. They undressed the applicant and tried to seat him with his naked rear on a bottle which they put on the floor, whereupon the applicant agreed to their demands and wrote a confession letter. Furthermore, it appears that there was no transcript of the applicant's arrest drawn up throughout the whole duration of his stay in custody.

(b) The applicant's release and medical examination

10. On 24 December 1999, at 6.00 p.m., the applicant was handed over to three fellow servicemen who accompanied him to his military unit. Upon arrival in his unit the applicant reported to the chief of the headquarters (начальник штаба). At about 8.00 p.m. the applicant was examined by a doctor of the medical unit. The doctor's report contained, inter alia, the following conclusions:

“...A scabbed abrasion of skin, 0.5 x 1.0 cm, and a yellow-green bruise are displayed on the left ear. Palpation of the left part of the body is painful. Yellow-green bruises are displayed on the right side and in the middle of the anterior surface of the chest, 4 x 6 cm and 4 x 5 cm. [P]alpation of the anterior surface of the chest is painful. Diagnosis: Soft tissue bruises on the head and body.”

11. It appears that on 25 December 1999 the applicant was examined by the head of the medical unit who confirmed the findings made in the doctor's report and entered them into the applicant's medical chart.

12. Following the transfer of the criminal case against the applicant to the relevant Military Prosecutor's Office, it appears that the applicant complained orally to the investigator dealing with his case about the ill-treatment in police custody and presented copies of the above medical report and medical chart. It appears, however, that his complaints remained unexamined.

13. On 23 March 2000 the applicant's counsel and his father complained in writing to the Derbent Town Prosecutor (прокурор г. Дербента) that, at the time of his arrest, the applicant had on him certain personal belongings which had not been returned to him and requested that these belongings be returned. They also submitted that following his arrest the applicant had been ill-treated and coerced to confess by police officers, including police officer S.

14. Copies of this complaint were also forwarded to the Dagestan Republic Prosecutor and the Chief Military Prosecutor (прокурор Республики Дагестан и Главный Военный Прокурор). It appears that no reply was received to this complaint. It further appears that the applicant's counsel and his father lodged numerous similar complaints with various prosecutor's offices.

15. By letter of 20 April 2000 the applicant's father was informed by the Regional Military Prosecutor's Office (Военная прокуратура Краснознаменного Северо-Кавказского регионального управления) that the allegations of ill-treatment were being examined in an objective and thorough manner in the course of the court proceedings (see below).

16. By letter of 3 May 2000 the applicant's father was informed by the Military Prosecutor of the Makhachkala Garrison (Военный прокурор Махачкалинского гарнизона) that his complaint about the applicant's ill-treatment had been forwarded to the head of the Derbent Town Police Station.

17. On 22 May 2000 the applicant's counsel and his father inquired with the Derbent Town Prosecutor about the destiny of their complaint of 23 March 2000. The applicant alleges that no reply was received to this inquiry.

18. The Government submitted that the applicant's requests concerning his complaint of 23 March 2000 were examined by the domestic authorities repeatedly in 2004 and 2005. They referred to a copy of the decision of the Derbent Town Prosecutor of 21 January 2005 which read as follows:

“...The Derbent Town Prosecutor's Office, at request of the Prosecutor's Office of the Republic of Dagestan, carried out an inquiry of the arguments set out by Mr Sheydayev in his application to the European Court of Human Rights concerning the violations of his rights and lawful interests by the policemen of the Derbent Town Police Station during his detention [...] between 21 and 24 December 1999.

The inquiry established that on 11 September 1999 the Department of Investigations of the Derbent Town Police had instituted criminal case No 904386 on suspicion of [robbery] and that on 21 December 1999 [the applicant] had been apprehended in this connection.

Investigator [...] A. O., in charge of the case, submitted that [...] during the investigative actions [the applicant] had never complained about the ill-treatment by the policemen of the Derbent Town Police.

Policemen G. and E. who had arrested [the applicant] submitted that [...] during his stay in the building of the Derbent Town Police no physical or mental coercion had been used and that [the applicant] had never made any such complaints.

The parents of [the applicant] confirmed his arguments about the ill-treatment by the policemen.

According to the records of the Derbent Interdistrict Department of Medical Forensic Examinations [...] [the applicant] had not addressed himself to that institution during the period between 1999 and 2000.

From the judgment of Makhachkala Garrison Military Court [of 27 May 2000] it follows that [the applicant's] arguments about the coercion by the policemen were examined during the examination of the case but were rejected by the court as unfounded.

By decision of 29 December 2004 the Deputy of the Derbent Town Prosecutor refused to institute criminal proceedings on account of allegedly unlawful actions in respect of [the applicant] with reference to [lack of evidence of a crime] in the actions of G., S., A.

This decision was quashed by the Prosecutor's Office of the Republic of Dagestan on 14 January 2005 and the case was remitted for an additional inquiry.

In the course of additional inquiry into the circumstances of the case the instructions of the Prosecutor's Office of the Republic of Dagestan were complied with fully. In particular, additional interviews of [the applicant's parents, relatives and neighbours] took place. All of them confirmed that they had had hearsay knowledge of the allegations of torture from the applicant. The [applicant's] Chief of Military Unit submitted that during [the applicant's] detention he had been away on mission and that during their first subsequent meeting he had noticed no signs of violence. As regards [the applicant's] fellow servicemen, at the moment of the additional inquiry their location could not be established.

[It was apparently impossible to interview the applicant because he changed his residence and moved from Dagestan to the Moscow Region].

From the report of the medical unit of [the applicant's] military unit dated 24 December 1999 it follows that he had had [certain injuries] the origins of which [the applicant] and his relatives and neighbours, on the basis of [the applicant's] allegations, explained by the police violence during [the applicant's] detention. This was, however, not confirmed by the policemen. It was impossible to interview the applicant because his residence could not be established. It was equally impossible to examine the registry of the persons detained in the Derbent Town Police at the relevant time, the registry of those interviewed and to carry out some other investigative actions because of a serious lapse of time from the time of events in question and the destruction of the relevant documents [...].

The analysis of the available documents shows that the inquiry had failed to obtain sufficient data confirming the arguments of [the applicant] concerning violence by the policemen, apart from the medical report [of 24 December 1999] and the submissions of the relatives and neighbours which should be assessed critically because of [the conflict of interests]. The medical report and the submissions of the above persons are insufficient for the prosecution of policemen. In addition, [the applicant's] arguments were examined by the Makhachkala Garrison Military Court [...] and declared unfounded.”

2. Criminal proceedings against the applicant

19. While the applicant was in police custody, the investigating authority conducted an identification parade with the participation of the applicant, two other persons and two attesting witnesses. Following the line-up the applicant was identified as one involved in the incident of violent hooliganism.

20. On an unspecified date, the applicant was charged with hooliganism committed by a group of people.

(a) Court proceedings at first instance

21. On 25 January 2000 the case was brought before the Makhachkala Garrison Military Court (Махачкалинский гарнизонный военный суд), presided over by judge R.

i. Alleged bias episode

22. The applicant submits that the presiding judge R. tried to extort a bribe from his father, promising to acquit him in return. It appears that the applicant's father paid the amount demanded by the judge but the judge later changed his mind and demanded more money. The applicant's father refused to pay additional money and demanded that the judge return the amount already paid which led to a conflict between them.

ii. Evidence concerning the alleged ill-treatment

23. In the proceedings before the Garrison Military Court the applicant complained in detail about the ill-treatment during the police custody and submitted that his confession had been made under duress.

24. The court heard four police officers who had been present at the time when the applicant wrote his confession, all of whom denied using physical force against the applicant. They stated that the applicant had made his confession voluntarily.

25. It further heard the doctor who had examined the applicant on 24 December 1999 and the head of the medical unit who confirmed their previous findings.

26. The court also heard the servicemen who had accompanied the applicant from the police station following his release. Serviceman G. submitted that the applicant had had injuries and that he had told them, on their way to the military unit, about having been ill-treated in police custody. Serviceman S., on the other hand, denied these allegations.

27. The court further heard the chief of the headquarters to whom the applicant reported upon his arrival at the military unit who stated that he had not noticed any injuries on the applicant's face from a distance of 3-4 metres. The chief of the headquarters and the commander of the military unit submitted in court that the applicant reported to them about having been ill-treated in police custody.

iii. Challenge of the results of the identification of parade

28. The applicant further challenged the results of the identification parade as inadmissible evidence. The court dismissed this challenge. In doing so, the court took into account the testimonies given by both victims who stated that they had clearly seen the applicant's face at the time of the incident, they had immediately and without hesitation recognised his face, constitution and height during the line-up and that the investigator had not made any hints to them.

29. The first victim added that the other participants had not had a substantially different look from the applicant, while the second victim stated that nobody had ever persuaded her to testify against the applicant. The court finally heard the two other participants of the line-up and one of the attesting witnesses who confirmed these statements.

iv. First instance judgment

30. On 27 May 2000 the Makhachkala Garrison Military Court found the applicant guilty as charged and imposed a two-year suspended sentence of imprisonment.

31. As to the applicant's allegations of ill-treatment, the court found:

“According to the entry in the medical file of [the applicant] and the medical report following his examination of 24 December, [the applicant] was found to have bruises on the left helix, the right and the middle zone of his chest.

[...]

Witnesses A., G. and S. – policemen of the Derbent Town Police – stated that no physical or mental coercion had been used in respect of [the applicant], the latter voluntarily told them that on 11 September of that year at 20 p.m. [...] he took part in the beating of the victim and in particular punched him once on the back.

[...]

Having assessed [the applicant's] statements about the beatings by the policemen of the Derbent Town Court as well as the statements of the commander of the military unit, the [...] chief of the headquarters, the head of the medical unit, the court reaches the conclusion that they are partial.

[...]

The statements by [serviceman G.] who said that [the applicant] on 24 December during the trip to the military unit in UAZ car had told him [about the coercion by the policemen] were fully refuted by serviceman S., who accompanied [the applicant] and [serviceman] G. in the said car.

[Serviceman] S. in this respect stated that during that trip in UAZ car at the relevant time no such talk had taken place between [the applicant] and G. and that he had seen no traces of violence on [the applicant's] face.

Having analysed the statements [of serviceman S.] and having compared them to all other evidence in the case, the court finds them objective and unbiased.

[...]

[The doctor] gave the evidence that during the examination of the [applicant's] body he had discovered the bruises on the chest and the helix. This fact, even though it was supported by the medical report, was questioned by the statements of the chief of headquarters and serviceman S.

[The applicant] failed to submit persuasive evidence establishing the causal link between [his] injuries and the actions of policemen A., G. and S. who had been accused of beating to prove in court [this] version of events.

32. As to the applicant's identification, the court found on the basis of the witness testimonies given in this respect that the identification had been conducted in compliance with the law.

33. On 29 May 2000 the President of the Makhachkala Garrison Military Court (председатель Махачкалинского гарнизонного военного суда) pardoned the applicant on the basis of an amnesty act adopted by the State Duma on 26 May 2000.

(b) Appeal proceedings

34. On 27 June 2000 the applicant lodged an appeal against the judgment of 27 May 2000.

35. In his appeal he complained in detail about the ill-treatment in police custody. He also briefly indicated that his identification had been conducted in flagrant violation of the law and that the court's dismissal of his counsel's motion, seeking to exclude the results of the identification as inadmissible evidence, had been unfounded.

36. On 27 July 2000 the North Caucasus Circuit Military Court (Северо-Кавказский окружной военный суд) dismissed the applicant's appeal. The court found, inter alia, the applicant's statement that his confession had been made under physical ill-treatment unsubstantiated. The court also dismissed the applicant's allegations of unlawfulness of his identification.

37. According to applicant, on 17 August 2000 he lodged a supervisory review complaint in which he outlined all of his previous arguments, including the complaint about the alleged ill-treatment with the President of the North Caucasus Circuit Military Court.

38. On 11 November 2000 the President rejected the complaint as groundless and refused to institute supervisory review proceedings.

II. RELEVANT DOMESTIC LAW

1. Criminal law remedies against illegal acts of public officials

39. Article 21 § 2 of the Constitution provides that no one may be subjected to torture, violence or any other cruel or degrading treatment or punishment.

40. Section 117 § 2 (f) of the Criminal Code penalises an act of torture with a sentence of up to seven years' imprisonment.

41. Under Section 286 § 3 (a) and (c) of the Code the abuse of official power with the use of violence or entailing serious consequences is punishable by up to ten years of imprisonment.

2. Legal provisions on investigation of crimes

42. Under Section 108 and 125 of the 1960 Code of Criminal Procedure (in force until 2002), a criminal investigation could be initiated by a prosecutor ex officio or at the request of a private individual.

43. Where an investigating body refused to open or terminated a criminal investigation, a reasoned decision was to be provided. Such decisions could be appealed to a higher-ranking prosecutor or to a court (Sections 113 and 209).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

44. The applicant complained under Article 3 of the Convention that he had been subjected to ill-treatment by police officers while kept in custody from 21 to 24 December 1999. This provision reads as follows:

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

A. Admissibility

45. The Government maintained that the applicant had not instituted any supervisory review proceedings against the court decisions in his case and thus failed to exhaust the available domestic remedies.

46. The applicant submitted that, contrary to the Government's objections, he had availed himself of the right to bring supervisory review proceedings in respect of the decisions in his case and was unsuccessful. On 11 November 2000 the President of the North Caucasus Circuit Military Court rejected his complaint as groundless.

47. The Court observes that the Government entered a plea of non-exhaustion with reference to the applicant's alleged failure to bring supervisory review proceedings against the court decisions in his criminal case. The Court recalls that an application for supervisory review under the 1960 Code of Criminal Procedure did not constitute an effective remedy within the meaning of Article 35 § 1 of the Convention. In any event, it is clear from the case file that the applicant availed himself of the remedy at issue and was unsuccessful. His supervisory review complaint was examined and refused by the President of the North Caucasus Circuit Military Court on 11 November 2000.

48. The Court further observes that, apart from the aforementioned objection, the Government did not argue that the domestic avenues chosen and employed by the applicant to bring his grievances to the attention of the domestic authorities were ineffective or otherwise inappropriate. Accordingly, the Court rejects the Government's objection.

49. The Court finds this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

50. The Government submitted that an additional examination of the applicant's complaint about the alleged ill-treatment had been carried out by the prosecution office repeatedly in 2005. The applicant's request to bring criminal proceedings against the alleged offenders was refused. Overall, the Government argued that the applicant's allegations of ill-treatment had been thoroughly examined by the domestic courts at two instances in the course of the criminal proceedings against the applicant and reasonably rejected as unfounded.

51. The applicant maintained his complaints.

52. The Court has held on many occasions that the authorities have an obligation to protect the physical integrity of persons in detention. Where an individual is taken into custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused (see Ribitsch v. Austria, judgment of 4 December 1995, Series A no. 336, § 34; see also, mutatis mutandis, Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII). Otherwise, torture or ill-treatment may be presumed in favour of the claimant and an issue may arise under Article 3 of the Convention (see Tomasi v. France, judgment of 27 August 1992, Series A no. 241-A, pp. 40-41, §§ 108-11, and Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V). The Court further recalls that being sensitive to the subsidiary nature of its role and cautious about taking on the role of a first-instance tribunal of fact the Court nevertheless is not bound by the findings of domestic courts and may depart from them where this is rendered unavoidable by the circumstances of a particular case (see, for example, Matyar v. Turkey, no. 23423/94, § 108, 21 February 2002 and, by contrast, Edwards v. the United Kingdom, judgment of 16 December 1992, Series A no. 247‑B, p. 12, § 34 and Vidal v. Belgium, judgment of 22 April 1992, Series A no. 235‑B, p. 32-33, § 33-34).

53. The Court notes that the parties did not dispute the validity of the medical report drawn up at about 8.00 p.m. on 24 December 1999, which was only two hours after the applicant's release from custody, and confirming the presence of various injuries on the applicant's head and chest. The Government were accordingly under an obligation to provide a plausible explanation of how the applicant's injuries had been caused.

54. At the outset the Court observes the applicant's allegations of ill-treatment were examined first by the domestic authorities in the criminal proceedings against the applicant in the judgment of 27 May 2000, as upheld on 30 January 2001, and then in the course of the criminal investigation initiated upon the applicant's complaints in the decision of the Derbent Town Prosecutor of 21 January 2005. The judgment of 27 May 2000, as upheld on 30 January 2001, in its relevant parts, stated as follows:

55. The decision of the Derbent Town Prosecutor of 21 January 2005, in its relevant parts, read:

“The analysis of the available documents shows that the inquiry had failed to obtain sufficient data confirming the arguments of [the applicant] concerning violence by the policemen, apart from the medical report [of 24 December 1999] and the submissions of the relatives and neighbours which should be assessed critically because of [the conflict of interests]”.

56. The Court observes that on both occasions the authorities accepted the validity of the medical report of 24 December 1999 and thus the existence of the applicant's injuries. On the former occasion, however, the applicant's allegations of ill-treatment were rejected with reference to the lack of causal link between the applicant's injuries and the actions of the policemen, whereas on the latter occasion the authorities cited the lack of further evidence implicating the policemen. The Court notes that the medical report at issue was drawn up by the doctor only two hours after the applicant's release from custody and there is nothing in the case file or the parties' submissions to suggest that the injuries described in the report had been inflicted either before the applicant's arrest on 21 December 1999 or already after his release on 24 December 1999.

57. On the basis of all the material placed before it, the Court finds that neither the authorities at the domestic level, nor the Government in the proceedings before the Strasbourg Court have advanced any convincing explanation as to the origin of the applicant's injuries (see, by contrast, Klaas v. Germany, judgment of 22 September 1993, Series A no. 269, § 29-31). The Court concludes therefore that the Government have not satisfactorily established that the applicant's injuries were caused otherwise than - entirely, mainly, or partly - by the treatment he underwent while in police custody (see the Ribitsch judgment cited above, § 34).

58. As to the seriousness of the acts of ill-treatment, the Court reiterates that in order to determine whether a particular form of ill-treatment should be qualified as torture, it must have regard to the distinction, embodied in Article 3, between this notion and that of inhuman or degrading treatment. It appears that it was the intention that the Convention should, by means of this distinction, attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering. The Court has previously had before it cases in which it has found that there has been treatment which could only be described as torture (see Aksoy v. Turkey, judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, p. 2279, § 64; Aydın v. Turkey, judgment of 25 September 1997, Reports 1997-VI, pp. 1891-92, §§ 83-84 and 86; Selmouni, cited above, § 105; Dikme v. Turkey, no. 20869/92, §§ 94-96, ECHR 2000-VIII, and, among recent authorities, Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 116, ECHR 2004‑... (extracts), as well as Menesheva v. Russia, no. 59261/00, § 58, ECHR 2006‑...).

59. Furthermore , the Court reiterates its well-established case-law that in respect of a person deprived of his liberty, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the Convention. It observes that the requirements of an investigation and the undeniable difficulties inherent in the fight against crime cannot justify placing limits on the protection to be afforded in respect of the physical integrity of individuals (see the Tomasi judgment cited above, p. 42, § 115 and the Ribitsch judgment, §§ 38-40).

60. The acts complained of (see paragraphs 6 to 9) were such as to arouse in the applicant feelings of fear, anguish and inferiority capable of humiliating and debasing him and possibly breaking his physical and moral resistance.

61. The Court finds that in the instant case the existence of physical pain or suffering is attested by the medical report of 24 December 1999 and the applicant's statements regarding his ill-treatment in custody from which it follows that the pain and suffering were inflicted on him intentionally.

62. Having regard to all the circumstances of the case, such as the duration of the treatment, its physical or mental effects, the sex, age and state of health of the victim (see Batı, cited above, § 120), the Court concludes that, taken as a whole and having regard to its purpose and severity, the ill-treatment at issue amounted to torture.

63. Accordingly, there has been a breach of Article 3 of the Convention.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

1. The applicant's arrest on 21 December 1999

64. The applicant complained under Article 5 of the Convention that his arrest on 21 December 1999 had been effected without a reasonable suspicion, that there had been no transcript of his arrest drawn up and that his arrest had lasted more than the 72 hours permitted by the criminal procedure law.

65. The Court observes that the applicant failed to exhaust the domestic remedies as regards this complaint. As it transpires from the case file he did not lodge any complaint about the lawfulness of his arrest or any claim for damages. Even assuming that there were no effective remedies available, the applicant introduced this complaint out of time as his detention terminated on 24 December 1999, whereas the application form was lodged with the Court on 23 January 2001, which is more than six months later.

66. Accordingly, this part of the application was introduced too late and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

2. Alleged bias of judge R.

67. The applicant complained under Article 6 of the Convention that the presiding judge R. in the Makhachkala Garrison Martial Court had not been impartial because of the bribe incident that allegedly had taken place between judge R. and his father.

68. The Court observes that the applicant did not challenge the impartiality of the presiding judge, nor did he raise this issue in his appeal lodged with the North Caucasus Circuit Military Court and he thus failed to exhaust the domestic remedies available to him. This complaint must therefore be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

3. Alleged irregularity of the identification parade

69. Lastly, the applicant complained that the identification parade had been conducted in violation of domestic law. In particular, he submitted that, prior to the actual line-up, he had been shown to the victims in private by the police officers so that the victims would know whom they should identify. He further submitted that two other participants of the line-up had a substantially different look from him in terms of their constitution and clothing.

70. The Court observes that there is nothing in the case file to substantiate the applicant's allegations that prior to the actual line-up he was shown to the victims in private. In any event, he never complained about this to the prosecutor's office during the investigation or challenged the admissibility of the results of the identification parade before the trial court in this respect. He thus failed to exhaust the domestic remedies available to him. This part of the application must therefore be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

71. 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

72. The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage.

73. The Government argued that the applicant had failed to specify his claims.

74. The Court observes that it has found above that the authorities have subjected the applicant to torture in breach of Article 3 of the Convention. Having regard to all these considerations, the Court awards the applicant, on an equitable basis, EUR 20,000 for non-pecuniary damage, plus any tax that may be chargeable on that amount.

B. Costs and expenses

75. The applicant did not submit any claims under this head and the Court accordingly makes no award in respect of costs and expenses.

C. Default interest

76. The Court considers it appropriate that the default interest 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 complaint concerning the ill-treatment in the police custody between 21 and 24 December 1999 admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 3 of the Convention;

3. 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, EUR 20,000 (twenty thousand euros) in respect of non-pecuniary damage, to be converted into Russian roubles at a rate applicable at the date of settlement, plus any tax that may be chargeable on that amount;

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

4. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 7 December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren NielsenChristos Rozakis
RegistrarPresident

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