European Court of Human Rights

 

 

 

THIRD SECTION

CASE OF VLADOVSKIYE v. RUSSIA

(Application no. 40833/07)

 

 

 

 

JUDGMENT

STRASBOURG

6 October 2020

 

 

 

 

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

 

In the case of Vladovskiye v. Russia,

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

          Alena Poláčková, President,
          Dmitry Dedov,
          Gilberto Felici, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no.  40833/07) 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 two Russian nationals, Mr Mikhail Aleksandrovich Vladovskiy (“the first applicant”) and his mother Ms Lubov (also spelled “Liubov”) Said-Alievna Vladovskaya (“the second applicant”), on 5 September 2007;

the decision to give notice to the Russian Government (“the Government”) of the complaints concerning the first applicant’s ill‑treatment in 2004, the lack of an effective investigation in that regard, and the lack of effective domestic remedies at the first applicant’s disposal to complain of his ill-treatment;

the observations submitted by the respondent Government and the observations in reply submitted by the applicants;

the comments submitted by the International Centre for the Legal Protection of Human Rights (Interights), which was granted leave to intervene by the President of the Section;

Having deliberated in private on 15 September 2020,

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

INTRODUCTION

1.  The case concerns the first applicant’s complaints that he was ill‑treated at the hands of the police in 2004, that there was no effective investigation into the matter, and that he had no effective domestic remedy at his disposal to complain of the ill-treatment.

THE FACTS

2.  The first and second applicants were born in 1983 and 1955 respectively. The first applicant is the son of the second applicant. The first applicant resides in Austria and the second applicant lives in the town of Grozny in Chechnya, Russia. They were represented before the Court by Ms O. Sadovskaya, Mr A. Ryzhov and Mr I. Kalyapin, lawyers from the Committee Against Torture, a non-governmental organisation based in Nizhniy Novgorod.

3.  The Government were initially represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

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

I. The first criminal case

5.  On 7 May 2003 the first applicant was arrested on suspicion of having committed a criminal offence and was taken into custody. On 9 February 2004 the Supreme Court of Chechnya found him guilty of the unlawful acquisition and storage of an artillery shell and sentenced him to two years’ imprisonment. The applicant served his sentence at remand prison no. 2 in the village of Chernokozovo, Chechnya.

II. The second criminal case

A.    Transfer to the Leninskiy ROVD

6.  On 27 May 2004 D., an investigator from the Leninskiy District police station in Grozny (Ленинский РОВД - hereafter “the Leninskiy ROVD”), obtained information that the first applicant was a member of a criminal group and had committed several crimes as part of that group.

7.  On 8 June 2004, at the request of D., the first applicant was transferred from the remand prison to the temporary detention facility of the Leninskiy ROVD (“the IVS”). Upon his admission to the facility, he was examined by a medical assistant, who noted the absence of any health-related complaints.

B.     Alleged ill-treatment

8.  According to the applicants, upon the first applicant’s transfer to the Leninskiy ROVD, investigator D. met him in one of the Leninskiy ROVD’s offices and demanded that the first applicant confess to having participated in several terrorist attacks, robberies and murders, threatening him with ill‑treatment. Having obtained no confession, D. left the office. Officers R.Kh., I. Abdur. and I.A. then entered it. They put a black plastic bag over the first applicant’s head, strangled him and hit him all over his body, particularly on his legs, using truncheons and plastic bottles filled with water. The officers ordered the first applicant to confess to murders, robberies and terrorist attacks.

9.  According to the IVS logbook, on 9 June 2004 the first applicant complained to a medical assistant of pain and oedema in the area of his right ankle. The medical assistant diagnosed him with disruption of the ligaments in the right ankle and immobilised the joint. A consultation with a general practitioner was prescribed. The next day, on 10 June 2004 the first applicant was taken to the injury care centre in hospital no. 9 in Grozny, where a neighbour saw him. The hospital doctors diagnosed him with partial disruption of the ligaments in the right leg, a sprain of the ligaments in the left leg, and contusion of the soft tissues of the head. The first applicant’s right leg was put in plaster. After the emergency care police officers took the applicant back to the Leninskiy ROVD.

10.  On 11 June 2004 the first applicant prepared a suicide note and hid it underneath his plaster cast. According to him, he named investigator D. as the person responsible for his death.

11.  On 16 June 2004 the first applicant was transferred to operational-search bureau no. 2 (“ORB-2”). According to him, police officers at ORB-2 beat him severely and gave him electric shocks with a view to obtaining his confessions to murders, terrorist attacks and robberies.

12.  The next day the first applicant slit his wrists with a razor. According to him, he did so fearing that his torture would continue. Shortly thereafter he was provided with emergency medical assistance. It appears that at that time a suicide note dated 11 June 2004 was found underneath his plaster cast.

C.    Acquittal and subsequent proceedings

13.  On 25 August and 2 November 2004 the first applicant was charged with several criminal offences, including participation in a criminal armed group, organised terrorist attacks, robberies, the unlawful possession and manufacture of weapons, and assault on law-enforcement officials.

14.  On 30 March 2005 the Supreme Court of Chechnya acquitted him of all charges having declared several statements incriminating him inadmissible. After that he left Russia.

15.  On 14 April 2005 the Chechnya prosecutor’s office appealed against the acquittal to the Supreme Court of Russia, which set aside the impugned judgment and remitted the case for a fresh examination on 1 June 2005. The proceedings were then suspended by the Supreme Court of Chechnya on 1 September 2005 on account of the first applicant’s whereabouts being unknown.

III. Proceedings concerning alleged ill-treatment

16.  On 26 June 2004 the first applicant’s counsel filed a complaint in respect of her client’s ill-treatment with the prosecutor’s office of the Leninskiy District in Grozny (“the district prosecutor’s office”).

17.  On 2 July 2004 investigator D. ordered a forensic medical examination of the first applicant, which was conducted on the same day by a forensic medical expert. The first applicant told the expert that no undue pressure had been put on him and that on 17 June 2004 he had slit his wrists. According to report no. 691 prepared by the expert, the first applicant had the following bodily injuries: scars on both inner forearms, a scar on the left ankle, and scars on the back of the head and on the top of the head. The expert concluded that the injuries on the inner forearms were from cuts, possibly from a razor, and had been inflicted no more than one month before the examination. It was not clear how the remaining injuries had been caused; they had been sustained more than eighteen months before the examination.

18.  By a letter of 3 August 2004 the Chechnya prosecutor’s office informed the second applicant that the investigating authorities had refused to open a criminal case in respect of the first applicant’s alleged ill‑treatment.

19.  The first refusal to open a criminal case was later overruled, and an additional pre-investigation inquiry was ordered. During the inquiry the investigators questioned the investigator D., and six officers from the Leninskiy ROVD and ORB-2. All of them denied having ill-treated the first applicant. The Leninskiy ROVD officers stated that on 9 June 2004 the first applicant had been escorted to the toilet by Officer S.B., and he (the first applicant) had slipped on the stairs and injured his leg. The ORB-2 officers stated that the first applicant had slit his wrists for no apparent reason. The investigators also obtained extracts from the IVS logbook containing the records related to the first applicant’s injuries and a written statement from him dated 9 June 2004 in which he explained that the leg injury had been caused by a fall on the stairs.

20.  Taking into account the above pieces of evidence and medical report no. 691, on 6 August 2004 the investigating authorities refused to open a criminal case. Following subsequent complaints by the applicants new decisions not to open a criminal case were issued on 12 September 2004, 30 October and 28 November 2005, 26 January and 2 March 2006.

21.  On 26 April 2006 the Chechnya prosecutor’s office overruled the refusal of 2 March 2006. It noted that neither the circumstances in which the first applicant had received his injuries nor the motives for his attempted suicide had been clarified. It also held that the pieces of evidence in the case file were in conflict with each other.

22.  On the same day the Deputy Prosecutor of the Chechen Republic instituted criminal proceedings in respect of the first applicant’s alleged ill‑treatment under Article 286 § 3 of the Russian Criminal Code (“aggravated abuse of power”) and entrusted the investigation to the prosecutor’s office of the Chechen Republic.

23.  On various dates in May 2006 the investigators questioned investigator D, Officers R.Kh., I. Abdur. I.A. and the hospital doctor. Investigator D. stated that the first applicant had sustained the trauma when he had slipped on the stairs. The officers stated that no undue pressure had been put on the first applicant and that he had injured his leg when Officer S.B. had been escorting him to the toilet. The doctor submitted that the trauma in question could have been the result of a fall.

24.  On 30 June 2006 the investigators questioned the first applicant’s mother and father respectively. The parents stated that they had learned about their son’s ill-treatment from a police officer. Later, that information had been confirmed by the first applicant’s counsel. After the first applicant’s acquittal, his father had seen scars on his son’s head, thorax and legs. The first applicant had said that those injuries had been inflicted by Officers I.A., R.Kh., I. Abdur and A.A. during torture.

25.  On 30 June 2006 the first applicant’s aunt was questioned. She stated that she was a medical assistant. She had heard about the first applicant’s ill‑treatment from his parents. She had seen him in person in May 2006 when she had taken him to her home to provide him with medical care. According to her, at that time he had been in a very poor state of health; he had had dark circles around his eyes, scars on his arms and legs and an injured kneecap, and his hair had been coming out. He had been lame in his right leg. The first applicant had told her that the injuries had been inflicted by police officers who had ill-treated him under the orders of investigator D.

26.  Lastly, on 30 June 2006 the investigators interviewed a neighbour of the first applicant who had been at hospital no. 9 when the first applicant had been escorted there to receive medical care. She stated that men in camouflage uniforms had supported the first applicant, who had been unable to stand himself. His face had been covered in fresh haematomas.

27.  On 26 July 2006 and 28 May 2007 the investigators suspended the proceedings on account of their inability to question the first applicant or identify the perpetrators of the offence. The suspension orders were set aside on 27 April 2007 and 7 October 2007 respectively.

28.  On 5 November 2007 the investigators suspended the proceedings once again. The investigation is still ongoing.

IV. Court appeals against refusal to institute criminal proceedings

29.  On an unspecified date the first applicant’s counsel challenged the decision not to open a criminal case dated 12 September 2004 before the Leninskiy District Court of Grozny. The court dismissed the challenge on 16 December 2005, finding no grounds for quashing the impugned decision.

RELEVANT LEGAL FRAMEWORK and international material

30.  For a summary of the relevant provisions of the Criminal Code of the Russian Federation and the Code of Criminal Procedure of the Russian Federation, see, in so far as relevant, Lyapin v. Russia (no. 46956/09, §§ 99‑102, 24 July 2014).

31.  On 10 July 2003 and 13 March 2007 the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) made public statements concerning the Chechen Republic of the Russian Federation which mentioned frequent cases of alleged ill-treatment in law-enforcement establishments, notably in ORB-2 (for relevant extracts see Mukayev v. Russia, no. 22495/08, §§ 60, 14 March 2017 and Abdulkadyrov and Dakhtayev v. Russia, no. 35061/04, § 47, 10 July 2018).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

32.  The first applicant complained under Article 3 of the Convention that he had been ill-treated in the period between 8 and 17 June 2004 and that the authorities had failed to carry out an effective investigation into his allegations. Article 3 reads as follows:

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

A.    Admissibility

33.  The Government argued that the first applicant’s complaints were manifestly ill-founded.

34.  The first applicant maintained his complaints.

35.  The Court finds that the first applicant’s 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.

B.     Merits

1.    The parties’ submissions

36.  The first applicant maintained his complaints. He noted that the ill‑treatment at the Leninskiy ROVD and ORB-2 had been well known. He also drew the Court’s attention to the absence of an explanation from the Government regarding the origin of the injuries on his legs. The first applicant claimed that the domestic investigation into the matter had been ineffective, as it had been unable to determine how the injuries had been caused.

37.  The Government submitted that the first applicant had not had an active stance in the investigation. He had not used every opportunity to challenge the investigator’s decisions with which he disagreed. Lastly, the fact that he had absconded had deprived the investigating authorities of a possibility to complete the investigation.

38.  The third party, Interights, submitted observations regarding the State’s positive obligations under Article 3 of the Convention. According to Interights, the Court should expressly recognise that Article 3 imposed a positive obligation on a State to provide a person deprived of his or her liberty with access to a lawyer and a doctor, to notify a person of the detainee’s choice about the arrest, and to inform the arrested person of those rights. Those obligations constituted fundamental safeguards against ill‑treatment, and were recognised among international and regional human rights bodies as effective means of preventing ill-treatment in custody.

2.    The Court’s assessment

(a)    General principles

39.  The relevant general principles have been summarised by the Court in Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-90 and 114-23, ECHR 2015) and Lyapin v. Russia (no. 46956/09, §§ 109-15, 24 July 2014).

(b)    Application of the above principles to the present case

(i) Credibility of the allegation of ill-treatment and presumption of fact

40.  It is not in dispute between the parties that the first applicant received injuries to his ankles and head whilst in the Leninskiy ROVD. Those injuries were recorded in the IVS logbook and confirmed by a doctor from a civilian hospital (see paragraphs 9 and 17 above). The first applicant provided a detailed description of that ill-treatment, which was consistent with those injuries, with the statements of his father, aunt and neighbour obtained after the criminal case in respect of his allegation had been opened (see paragraphs 24-26 above). Furthermore, it cannot be overlooked that police officers who allegedly ill‑treated the applicant, had been implicated in ill-treatment of two other people accused of membership in an illegal armed group (see X and Y v. Russia ([Committee], no. 43411/06, §§ 8, 10 and 67, 1 September 2020), and Chudalovy v. Russia ([Committee], no. 796/07, §§ 11 and 103, 1 September 2020). Lastly, the CPT’s public statements (see paragraph 31 above) lend further credibility to the first applicant’s allegations.

41.  In view of the foregoing, the Court considers that the first applicant’s injuries could arguably have resulted from the violence which he allegedly suffered at the hands of law-enforcement officers. The above factors are sufficient to give rise to a presumption in favour of the first applicant’s account of events and satisfy the Court that the applicants’ allegations of police violence in the Leninskiy ROVD were credible.

(ii) Whether an effective investigation was carried out into the allegations of ill‑treatment by the police

42.  The Court is satisfied that the applicants raised an arguable claim of ill-treatment by the police, and that the authorities were under an obligation to conduct an effective investigation in response to their complaints. Although the authorities opened a criminal case in respect of the alleged ill‑treatment, the Court is not convinced that the ensuing investigation was sufficiently thorough and expeditious to meet the requirements of Article 3 of the Convention.

43.  The first applicant’s consistent allegations that he had been ill‑treated on the premises of the Leninskiy ROVD were summarily rejected several times as a result 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, cited above, § 129). The criminal investigation in question was not opened until 26 April 2006, that is to say more than eighteen months after the alleged ill-treatment. The Court finds such a delay in opening the criminal case unacceptable.

44.  Even after the criminal case had been opened, the investigating authorities did not make a meaningful attempt to establish what had happened to the first applicant in custody.

45.  Although nothing prevented them from ordering a forensic examination of the first applicant’s medical documents to establish the origin of the injuries on his legs and head, the investigators opted not to do so. Instead, they were satisfied with the statement of the hospital doctor, who suggested that the first applicant could have sustained the injuries in a fall on the stairs (see paragraph 23 above). However, that evidence was of little value, because the doctor was not an expert and he gave that statement more than two years after he had seen the injuries in question.

46.  From the case-file material it appears that the only eyewitness to the first applicant’s alleged fall on the stairs - Officer S.B. - was not questioned by the investigators. They also failed to identify and question the police officer who had allegedly told the first applicant’s parents about their son’s ill-treatment. The crime scene was never examined.

47.  Lastly, it should be noted that the investigators did not properly investigate the first applicant’s motives for attempting suicide. They did not attempt to find his suicide note or interview his fellow inmates.

48.  Owing to numerous shortcomings, the investigating authorities have not yet come to any final conclusion about the matter in question. The investigation has been ongoing for more than ten years, and in recent years there have been no significant developments.

49.  The unsatisfactory response of the Russian authorities to the serious allegations of violence used against detainees at the law-enforcement establishments in Chechnya, including the Leninskiy ROVD (see the CPT’s public statements mentioned in paragraph 31 above and the Court’s findings in X and Y v. Russia (cited above, § 67), and Chudalovy v. Russia (cited above, § 103)) resulted in virtual impunity of the alleged perpetrators.

50.  In these circumstances, the Court finds that the State has failed to carry out an effective investigation into the matter as required by Article 3 of the Convention.         

(iii) Whether the Government provided explanations capable of casting doubt on the applicants’ account of events

51.  The Court observes that the Government did not explicitly provide any explanation regarding the first applicant’s injuries. The Court cannot accept the version put forward by the police officers that the applicant had slipped and fallen on the stairs, because it misses out important details regarding the time and exact place of the alleged fall, as well as a description of how the first applicant fell.

(iv) Legal classification of the treatment

52.  The medical documents in the Court’s possession support the first applicant’s allegation that he was beaten by police officers in the Leninskiy ROVD. That treatment amounted to inhuman or degrading treatment prohibited by Article 3 of the Convention. There has accordingly been a violation of that Article under its substantive and procedural limbs.

53.  In view of the above finding, the Court does not consider it necessary to examine separately the merits of the allegations concerning another episode of ill-treatment in ORB-2, which is not supported by medical evidence, and the lack of effective investigation into that episode (for a similar approach see Lyalyakin v. Russia, no. 31305/09, §§ 80-82, 12 March 2015, and Chenchevik v. Ukraine [Committee], no. 56920/10, §§ 93-94, 18 July 2019).

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 3 OF THE CONVENTION

54.  The first applicant complained, under Article 13 of the Convention in conjunction with Article 3, that he had had no effective domestic remedies at his disposal to complain of police ill-treatment. Article 13 reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

55.  The Government contested that claim, arguing that the first applicant had had effective domestic remedies at his disposal, but had not used them. In particular, he had been able to challenge the investigators’ decision to suspend the criminal proceedings.

56.  The first applicant maintained his complaint.

57.  The Court notes that the complaint submitted under Article 13 of the Convention is closely linked to the issue raised under the procedural aspect of Article 3 of the Convention, and therefore this complaint should be declared admissible. However, having regard to the finding of a violation of Article 3 under its procedural head on account of the respondent State’s failure to carry out an effective investigation, it considers that it is not necessary to examine this complaint separately under Article 13 of the Convention in conjunction with Article 3 of the Convention (see Lyapin, cited above, § 144).

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

58.  The applicants raised a number of additional complaints. The first applicant complained under Article 3 of his ill-treatment in 2003 in the context of the first set of criminal proceedings against him and the lack of an effective investigation in that regard. He also complained under Article 5 about his detention from 7 to 10 May 2003, and under Article 13 taken in conjunction with Article 5 that he had not had an effective domestic remedy at his disposal to complain of his unlawful detention. The second applicant complained under Article 3 that she had endured mental suffering because of the first applicant’s ill-treatment and the authorities’ failure to investigate it. Lastly, she claimed that she had not had effective domestic remedies at her disposal for her complaints as required by Article 13 of the Convention.

59.  The Court has examined those complaints. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court 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 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

60.  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

61.  The first and the second applicants claimed 50,000 euros (EUR) and EUR 20,000 respectively in respect of non‑pecuniary damage.

62.  The Government submitted that the finding of a violation would constitute sufficient just satisfaction for the applicants’ suffering.

63.  The Court considers that, in the circumstances of the case, the first applicant’s suffering cannot be compensated for by the mere finding of a violation. Making its assessment on an equitable basis, the Court awards the first applicant EUR 33,800 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

B.     Costs and expenses

64.  The applicants did not claim costs and expenses. Accordingly, there is no call to make an award under this head.

C.     Default interest

65.  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 first applicant’s complaints concerning his ill-treatment and the lack of an effective investigation in that regard, as well as his complaint concerning the lack of an effective domestic remedy to complain of ill-treatment 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 on account of the first applicant’s ill-treatment in the Leninskiy ROVD and the lack of an effective investigation into the matter;

3.      Holds that there is no need to examine the first applicant’s complaint under Article 3 of the Convention concerning subsequent episode of his ill-treatment in ORB-2 and the lack of effective investigation into that episode;

4.      Holds that there is no need to examine the first applicant’s complaint under Article 13 of the Convention taken in conjunction with Article 3 of the Convention;

5.      Holds

(a)   that the respondent State is to pay the first applicant, within three months, EUR 33,800 (thirty-three thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(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;

6.      Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 6 October 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova                                                                 Alena Poláčková
Deputy Registrar                                                                       President