European Court of Human Rights

 

 

THIRD SECTION

CASE OF SANNIKOV v. RUSSIA

(Application no. 16480/10)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

11 May 2021

 

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

In the case of Sannikov v. Russia,

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

          Darian Pavli, President,
          Dmitry Dedov,
          Peeter Roosma, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 16480/10) 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 Denis Germanovich Sannikov (“the applicant”), on 18 January 2010;

the decision to give notice to the Russian Government (“the Government”) of the complaints concerning the lawfulness of the applicant’s detention, his alleged ill-treatment by police, the lack of an effective investigation into his complaints and the use of his confession statements at his trial, and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated in private on 30 March 2021,

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

INTRODUCTION

1.  The application concerns the lawfulness of the applicant’s deprivation of liberty, his alleged ill-treatment by police, the lack of an effective investigation into his complaint and the use of his confession statements at his trial.

THE FACTS

2.  The applicant was born in 1979 and lives in Kimry, the Tver Region. The applicant, who had been granted legal aid, was represented by Ms Y.V. Yefremova and Ms D.M. Bakhareva, lawyers with the Centre of Assistance to International Protection based in Moscow.

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

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

I.        The applicant’s arrest and alleged ill-treatment

5.  From 2006 onwards the applicant was wanted on suspicion of robbery.

6.  On 9 June 2008 the Kimry inter-district investigation unit of the investigative committee at the Tver regional prosecutor’s office (“the Kimry investigative committee”) opened an inquiry into an arson attack and the death of a certain U. that had occurred on that day. Operational-search activities were carried out and the applicant’s possible involvement in the crime was established.

7.  The applicant’s account of the subsequent events is as follows. At around 10 p.m. on 17 June 2008 he was arrested on the porch of his home by officers of the Kimry police department. Before being taken away he was allowed to see his neighbour. He told her about his arrest. He was driven to Kimry police station, where police officers interviewed him about the circumstances of the crimes against U. They handcuffed his hands behind his back and made him sit on a chair. Five or six police officers started physically assaulting him, punching and kicking him. They also gave him electric shocks with a special device and placed a plastic bag over his head in order to prevent him from breathing for short intervals. The police officers requested him to provide self-incriminating statements about the crimes; he then started to lose consciousness and fell off the chair onto the floor. The police officers continued to kick him. When the applicant regained consciousness, he found that he was wet. The police officers insulted him using offensive language, threatened him with sexual abuse and attempted to take off his trousers. The ill-treatment continued until around 2 a.m. or 3 a.m. on 18 June 2008. The applicant was then placed in a temporary detention cell in the same building. At around 8 a.m. or 9 a.m. on 18 June 2008 the police officers drove the applicant to another police station in Kimry (Savelovskoye). They demanded that he confess to the crimes in question, and subjected him to more ill‑treatment using similar methods to those used previously. When he was allowed to use the toilet, he attempted to abscond by climbing through an open window in the toilet. He was weak and the policemen caught him soon afterwards, outside the police station. They beat him in front of the police station, demanding that he sign a confession and threatening to shoot him if he did not.

8.  According to the records of the Kimry police department, the applicant was apprehended at 12.50 a.m. on 18 June 2008. It was stated in the records that that the applicant had been found in an inebriated state in the street, using foul language, and that a record of an administrative offence had been drawn up. The records indicated that the applicant had left Kimry police station at 9 a.m. on 18 June 2008.

9.  According to the records of the Kimry sobering-up centre, the applicant was not taken there.

10.  The record of the applicant’s “statement of surrender and confession” (явка с повинной) was drawn up by a police officer of the Kimry police department, V., at 12.30 p.m. on 18 June 2008 at the Savelovskoye police station. The applicant confessed to the crimes against U. (namely robbing him, tying him up and leaving him in his flat after setting it on fire). According to the record, the applicant stated that he had confessed without any physical or psychological coercion.

11.  In his report of 18 June 2008 to the head of the Kimry police department, Officer V. stated that the applicant had been taken to the Savelovskoye police station, where he had confessed to the crime. He had escaped from a window in the toilet but had been found near the police station. He had put up resistance and V. had used sambo techniques (a form of martial art) to apprehend him.

12.  At 8.25 p.m. on 18 June 2008 an investigator from the Kimry investigative committee, recorded the applicant’s arrest on suspicion of the robbery and murder of U.

13.  From 8.35 p.m. to 9.20 p.m. that day the applicant was interviewed as a suspect in the presence of a State-assigned lawyer. The applicant reiterated his confession statements about the crimes against U. According to the record of his questioning, he stated that he had given his “statement of surrender and confession” without any physical or psychological coercion.

14.  According to the applicant, after his interrogation had finished and he had been taken back to the temporary detention facility at Kimry police station, he complained of feeling unwell (headache and pain all over his body) to an on-duty officer. The officer had allegedly noted down visible signs of injuries.

15.  At 2.20 p.m. on 19 June 2008 a verification of the applicant’s statements was carried out at the scene of the crime in the presence of the lawyer, two witnesses, an expert and three police officers, including V.

16.  According to the applicant, an on-duty officer at the temporary detention facility at Kimry police station called an ambulance for him. The ambulance paramedics had allegedly noted down his injuries. According to the records of the ambulance unit of Kimry district hospital, at 10.05 p.m. on 19 June 2008 an ambulance was called to the temporary detention facility at Kimry police station.

17.  On 20 June 2008 the applicant’s detention on remand was ordered by the Kimry Town Court.

18.  On the same day the applicant lodged a complaint with the head of the Kimry investigative committee. He stated that on 18 June 2008 he had been severely beaten up by police officers, that his visible injuries (in particular, abrasions and haematomas) had been recorded, and that as a result of his beatings he had been coerced into writing a “statement of surrender and confession”. He asked to undergo a forensic medical examination. The investigative committee registered his complaint on 25 June 2008.

19.  On 25 June 2008, during his interview as an accused in the presence of a lawyer, the applicant confirmed his earlier statements that he had robbed U. and tied him up. However, he denied committing arson and therefore murdering U. He claimed that he had given those statements because of threats from police officers.

20.  According to the applicant’s medical records of 2 July 2008 at pre‑trial detention facility IZ-69/2 in Kashin, the applicant complained of pain under his ribs on his right side. He had bruises on his abdomen, which were healing, and a swollen left ankle. It was stated in the records that the applicant had explained to the doctor that on 18 June 2008 he had received blows while being apprehended.

21.  On 25 July 2008 an investigator from the Kimry investigative committee ordered a forensic medical examination in connection with the applicant’s allegations that on 18 June 2008 police officers from the Kimry police department had beaten him up in order to obtain a “statement of surrender and confession” from him, had placed a plastic bag over his head and had given him electric shocks. On 5 August 2008 a forensic medical expert examined the applicant’s medical records of 2 July 2008 and concluded that the bruises on the applicant’s abdomen had originated from a blow with a hard, blunt object or objects, and had not caused him any “health damage”. The expert stated that the absence of any detailed description of the applicant’s bruises in the medical records had made it impossible to determine the exact time of their infliction.

II.     decisions not to open a criminal case and their judicial review

22.  An investigator from the Kimry investigative committee carried out a pre-investigation inquiry into the applicant’s complaint of 20 June 2008. The applicant was interviewed. He complained that he had been arrested at 10 p.m. on 17 June 2008 and taken to the police station by five officers from the criminal search unit of the Kimry police department who had then subjected him to ill-treatment (placing a plastic bag over his head, giving him electric shocks and physically assaulting him) with the aim of obtaining his confession to a murder which he had not committed. The ill-treatment had lasted about three hours. He had then been placed in the temporary detention facility. At around 8 a.m. the next morning V. and another police officer had taken him to Savelovskoye police station, where, together with several other police officers, they had continued his ill-treatment by the same methods until he had confessed. He stated that he could identify the police officers who had subjected him to ill-treatment.

23.  Officer V. was interviewed and gave the following “explanations”. It had been established, as a result of operative activities within the framework of the criminal case concerning U.’s murder, that the applicant had been involved in that crime. On 18 June 2008 the applicant’s location had been established and he had been taken to Savelovskoye police station, where he had confessed to the murder voluntarily and without any coercion. He had then asked to be taken to the toilet, from where he had escaped through a window. V. had found the applicant about 300 metres away from the police station. When the applicant had seen V. approaching him, he had tried to run away and had not obeyed V.’s order to stop. V. had then caught up with him, grabbed his shoulders from behind and fallen to the ground with him. The applicant had fallen to the ground face down. V. had not delivered any blows to the applicant. He had taken the applicant back to the police station, where the applicant had written his statement of surrender and confession.

24.  On 7 July, 28 July and 6 August 2008 the investigator refused to institute criminal proceedings against Officer V. under Article 24 § 1 (2) of the Code of Criminal Procedure (“the CCrP”) owing to the absence of the constituent elements of a crime under Article 286 of the Criminal Code on abuse of powers. Relying on the applicant’s statement that he denied any coercion in the record of his “surrender and confession”, on the absence of any complaints on his part in the records of his arrest and questioning as a suspect, and on the report and explanations by Officer V., the investigator explained the applicant’s injuries (recorded on 2 July 2008) as having resulted from the lawful use of force by Officer V. during the applicant’s attempted escape. Those decisions were revoked as unsubstantiated and unlawful.

25.  An appeal by the applicant under Article 125 of the CCrP against the decision of 6 August 2008 was examined by the Kimry Town Court of the Tver Region. According to the court records of 27 November 2008, the court heard V. and two other police officers, who confirmed that they had arrested the applicant on the porch of his home and taken him to Kimry police station. They denied using violence and stated that the applicant had given his confession voluntarily. One of them stated that he did not remember the date of the arrest. The applicant insisted that he had been arrested on 17 June 2008 (while his arrest as a suspect had been recorded on 18 June 2008), beaten up during the night and taken to Savelovskoye police station in the morning. V. stated that he had taken the applicant to Savelovskoye police station, where the applicant had voluntarily confessed and written the statement of surrender and confession. When asked about the origin of the applicant’s injuries, V. stated that the applicant could have received them during his escape from the police station and during his subsequent apprehension.

26.  In a decision of 27 November 2008 the Kimry Town Court found the refusal to open a criminal case of 6 August 2008 unsubstantiated and unlawful for the following reasons: the investigator had only interviewed V. and had not interviewed the other three police officers who had arrested and allegedly ill-treated the applicant, despite the applicant’s assertion that he could identify them; the investigator had not checked the circumstances indicated by the applicant, notably that his injuries had been recorded by an on-duty officer of the temporary detention facility and by the ambulance; and he had not examined the circumstances in which he had been provided with medical assistance from the ambulance paramedics after his arrest.

27.  On 15 January 2009 an investigator from the Kimry investigative committee refused to institute criminal proceedings against the police officers on the same grounds as before, relying on the explanations by V. (see paragraph 23 above) and similar explanations by three other police officers, who had all denied ill-treating the applicant. The investigator noted the applicant’s medical records of 2 July 2008 and the conclusions of the forensic medical expert of 5 August 2008. He also noted that according to records from the Kimry temporary detention facility (in which the applicant had been detained from 18 to 25 June 2008), no complaints had been received from him. He concluded that the applicant’s injuries had resulted from the lawful application of force during his attempt to abscond.

28.  Under Article 125 of the CCrP, the applicant appealed against the investigator’s decision of 15 January 2009. During the examination of his appeal, the applicant’s neighbour stated that on 17 June 2008 the applicant had asked her to inform his mother of his arrest. She had not noticed any injuries on him. The applicant’s mother stated that on 17 June 2008 the neighbor had called and informed her of her son’s arrest. She had returned home next day after a night shift. She had called the police to find out the place of the applicant’s detention.

29.  On 12 May 2010 the Kimry Town Court dismissed the applicant’s appeal, finding that his complaint had been properly examined during the pre‑investigation inquiry. The court did not assess the issue of the applicant’s alleged deprivation of liberty from 17 to 18 June 2008, which the applicant had also raised, and did not assess the witnesses’ statements.

30.  On 14 July 2010, in a brief judgment, the Tver Regional Court upheld that decision on appeal. As to the applicant’s record of arrest, which had been drawn up on 18 June 2008, the appeal court concluded that it could not be subject to examination under Article 125 of the CCrP.

III.  Criminal proceedings against the applicant

31.  At trial, the applicant admitted his guilt in respect of the robbery and pleaded not guilty with regard to the arson and murder. He submitted that his self-incriminating statements had been made as a result of his ill‑treatment by police officers. Those statements included: his “statement of surrender and confession” (record of 18 June 2008); the self‑incriminating statements made during his examination as a suspect (record of 18 June 2008); and the self-incriminating statements made during the official visit to the scene of the crime (record of 19 June 2008).

32.  On 2 June 2009 at the preliminary hearing the applicant made an application to the trial court to exclude the above-mentioned records from the evidence because they had been obtained in breach of the applicable criminal procedure. The trial court dismissed his application, stating that it saw no grounds for excluding those documents as evidence without examining them at the hearing. The court did not address other issues raised by the applicant, in particular the extraction of the applicant’s “statement of surrender and confession” in the absence of a lawyer; the fact that he had had no meeting with his State-assigned lawyer before his examination as a suspect; or the applicant’s unrecorded detention from 17 to 18 June 2008.

33.  On 16 June 2009 the applicant also made an application to the trial court for the police officers who had allegedly subjected him to ill-treatment to be examined. The prosecution objected, stating that the alleged ill‑treatment had been the subject of an inquiry and had not been confirmed. The trial court dismissed that application.

34.  On 17 June 2009 the Tver Regional Court convicted the applicant of, inter alia, the robbery and murder of U. and arson, and sentenced him to sixteen years’ imprisonment (which was to include the period of his detention from 18 June 2008). The court based its judgment on the applicant’s self-incriminating statements, holding that they had been received in accordance with criminal procedure and had been confirmed by other evidence. It noted that the applicant’s allegations that he had been coerced into making the confessions had been the subject of an inquiry and had not been confirmed.

35.  On 26 August 2009 the Supreme Court of Russia upheld that judgment on appeal. In respect of the applicant’s allegations of coerced confession and police ill-treatment, the Supreme Court stated that they had been the subject of an inquiry during the preliminary investigation, as a result of which a decision on the matter had been taken; that his application for exclusion of his confession statements from the evidence at the preliminary hearing had been examined and a decision on the matter had been taken; and that the applicant, who had been provided with a lawyer during the preliminary investigation and the trial, had not explained how the alleged violation of his right to legal assistance had occurred.

RELEVANT LEGAL FRAMEWORK

36.  Following the escorting of an arrested person before the investigating authority or the prosecutor, it was necessary to draw up, within three hours, an arrest record, noting that the person had been apprised of his or her procedural rights. The arrest record had to indicate the time and date it had been drawn up; the time, date, place and grounds for the arrest; and other circumstances of the arrest. It had to be signed by the official who had drawn it up and by the suspect (Article 92 §§ 1 and 2 of the Code of Criminal Procedure).

THE LAW

I.        ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

37.  The applicant complained that he had been arrested at 10 p.m. on 17 June 2008. However it was only at 8.25 p.m. on 18 June 2008 that his arrest as a suspect in the criminal proceedings had been recorded, in breach of Article 5 § 1 of the Convention, the relevant parts of which read as follows:

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

...

(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...”

38.  The Government disagreed. They submitted that on 18 June 2008 the applicant had been taken to the police station, where he had given his statement of surrender and confession and had then been arrested as a suspect. There had been lawful grounds for his arrest, since he had been on the federal list of wanted people from 2006. There was no evidence of his detention in police custody on 17 June 2008.

39.  The applicant argued that the fact that he had been arrested on 17 June 2008 had been confirmed by witnesses at the court hearing (see paragraph 28 above). He also noted that according to police records, he had been arrested on 18 June 2008 in an inebriated state. In reality, he had never been taken to a sobering-up centre and tested for the presence of alcohol (see paragraph 9 above). Even assuming that he had been arrested at 12.50 a.m. on 18 June 2008, as indicated in police records, his detention had in any event been unlawful because his arrest had been recorded later than the maximum period of three hours provided for by domestic law.

A.    Admissibility

40.  The Government stated that the applicant had not complained about the unlawfulness of his arrest “within the said period” and had thus failed to exhaust domestic remedies.

41.  The Court notes that the Government’s argument is at odds with the facts of the case. The applicant complained to the investigating authority and courts that he had actually been arrested on 17 June 2008 (see paragraphs 22, 25, 28-30 and 32 above). His arrest as a suspect in the criminal proceedings was recorded at 8.25 p.m. on 18 June 2008. The domestic investigating and judicial authorities did not assess the issue of the lawfulness of the applicant’s deprivation of liberty as raised in his complaints. The Government’s objection should be dismissed.

42.  The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.     Merits

43.  The Court reiterates that any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law, but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrariness. What is at stake is both the protection of the physical liberty of individuals and their personal security in a context which, in the absence of safeguards, could result in subversion of the rule of law and place detainees beyond the reach of the most rudimentary forms of legal protection (see Kurt v. Turkey, 25 May 1998, § 123, Reports of Judgments and Decisions 1998‑III, and Fartushin v. Russia, no. 38887/09, § 50, 8 October 2015).

44.  The Court observes that in the course of the inquiry opened on 9 June 2008 the applicant’s possible involvement in the arson attack and U.’s death was established (see paragraphs 6 and 23 above). The following sequence of ensuing events emerges from the statements of the police officers and records of the domestic authorities. The applicant was arrested on the porch of his home and taken to Kimry police station. He was subsequently taken to Savelovskoye police station, where his “statement of surrender and confession” was recorded. He was then arrested on suspicion of the robbery and murder of U. (see paragraphs 25, 10 and 12 above).

45.  According to police records, the applicant was arrested and taken to Kimry police station at 12.50 a.m. on 18 June 2008 and remained there until 9 a.m. on 18 June 2008 (see paragraph 8 above). At 12.30 p.m. on 18 June 2008 he confessed to the crimes against U. at Savelovskoye police station. At 8.25 p.m. on 18 June 2008 his arrest as a suspect in the proceedings concerning those crimes was recorded. The Government did not dispute the accuracy of those official records in respect of the timing of the above events.

46.  It transpires from the above that the applicant’s deprivation of liberty related to his being suspected of the crimes against U. Insofar as the Government seemed to attribute the applicant’s arrest to his being registered on the list of wanted people, they did not produce any official record in which the applicant’s arrest would be so documented. Furthermore the Government did not comment on the fact that the grounds for the applicant’s arrest and overnight detention at Kimry police station were indicated by police as relevant to an administrative offence committed by him. Nor was that fact explained in the domestic authorities’ decisions.

47.  It follows that the applicant’s deprivation of liberty on suspicion of the crimes against U. before his formal arrest as a suspect in that case was significantly in excess of the maximum three-hour period allowed by domestic law (see paragraph 36 above), and was therefore unlawful on that ground.

48.  The foregoing considerations are sufficient to enable the Court to find that there has been a violation of Article 5 § 1 of the Convention.

II.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

49.  The applicant complained that he had been subjected to ill-treatment by police officers with the aim of obtaining his confession to U.’s murder, and that the State had failed to conduct an effective investigation into his complaints. He relied on Article 3 of the Convention, which reads as follows:

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

50.  The Government stated that the applicant had failed to substantiate his complaint. His statements denying any coercion against him or the lack of any complaints on his part of police ill-treatment in the official records (concerning his “surrender and confession”, his arrest and his questioning as a suspect), as well as his failure to complain about his alleged ill-treatment immediately thereafter, had made his allegations doubtful. The Government stated that the ambulance records for 2008 had been destroyed upon expiry of the three-year period of retention.

51.  The applicant maintained his complaint.

A.    Admissibility

52.  The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.     Merits

53.  The Court notes that after a period of time in police custody, on 20 June 2008 the applicant (who was detained on remand) complained that he had been ill‑treated while in police custody with the aim of extracting a confession from him. He stated that his injuries, including abrasions and haematomas, had been recorded and he requested an examination by forensic medical experts.

54.  No explanation was offered by the authorities for the investigators’ failure to promptly check the circumstances of the alleged recording of the applicant’s injuries by an on-duty officer at the temporary detention facility on 18 June 2008 and by the ambulance on 19 June 2008, or to try to obtain those records, an omission which was one of the grounds for declaring the decision dispensing with prosecution unfounded and unlawful by the relevant court (see paragraphs 14, 16, 18 and 26 above). There is also no indication in the case file that the investigators made an effort to establish whether a medical examination of the applicant was carried out upon his transfer from the temporary detention facility at Kimry police station to the pre-trial detention facility (after his detention on remand had been ordered on 20 June 2008), and to obtain the relevant records.

55.  Nor is there any explanation for the authorities’ failure to promptly carry out a forensic medical examination of the applicant while the traces of his alleged ill-treatment noted by him in his complaint (lodged two days after the alleged ill-treatment) could have still been present. A forensic medical examination in respect of the applicant’s complaint was carried out on 5 August 2008. It consisted in examining his medical records from the pre-trial detention facility, according to which on 2 July 2008 the applicant had complained of pain under his ribs, and a medic recorded bruises that were healing on his abdomen and a swollen ankle. The expert concluded that the bruises recorded on the applicant’s abdomen had originated from a blow by a hard blunt object.

56.  In view of the foregoing, and, in particular, the fact that no injuries were recorded on the applicant by the police after his arrest, and that two weeks later the applicant presented injuries, the Court considers that his allegations of ill-treatment in police custody were credible.

57.  The fact that the alleged ill-treatment took place during the applicant’s unlawful detention (see paragraph 47 above) attests to his particular vulnerability vis-à-vis the police officers and lends further credence to his story. The Court reiterates that it has dealt with many applications against Russia concerning ill‑treatment in police custody that have exposed a systemic problem of delay in documenting the arrest and the status of individuals detained as suspects, during which time those detainees were interviewed without access to a lawyer, were denied other rights due to them as suspects, and fell victim to police abuse (see Olisov and Others v. Russia, nos. 10825/09 and 2 others, § 78, 2 May 2017).

58.  The Court furthermore observes that the applicant’s complaint of police ill-treatment was dismissed on the basis of statements by the police officers denying any violence against him. It was suggested that the bruises recorded on the applicant on 2 July 2008 had been received as a result of the lawful use of force by V. during the applicant’s attempt to abscond. In the Court’s view, not only that explanation for the applicant’s injuries (a fall to the ground) was unreliable because it was based on the version advanced by the officer who had allegedly ill-treated the applicant, but it was also unconvincing and unsupported by a medical opinion. In fact, it was never presented for examination by a forensic medical expert.

59.  The investigating authority’s decision to dismiss the applicant’s allegations of police ill-treatment was the 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 v. Russia, no. 46956/09, § 129, 24 July 2014). The investigators’ three decisions refusing to open a criminal case were set aside as unfounded and unlawful, and a fresh inquiry was ordered. Their last decision maintained the same findings as the earlier decisions.

60.  The Court reiterates its finding that the mere carrying-out of a pre‑investigation inquiry under Article 144 of the Code of Criminal Procedure 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 to conduct a proper criminal investigation in which a full range of investigative measures are carried out (ibid., §§ 129 and 132-36).

61.  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. Moreover, the investigators who carried out the inquiry into the applicant’s complaint of police ill-treatment and the investigators who investigated the criminal case against him were from the same investigating authority, a factor which raises the issue of their impartiality. The Court finds that the authorities have failed to carry out an effective and impartial investigation into the applicant’s allegations of police ill-treatment, as required by Article 3 of the Convention.

62.  Given that the Government’s denial of the State’s responsibility for the applicant’s injuries was based on superficial domestic inquiries that fell short of the requirements of Article 3 of the Convention, the Court holds that the Government have failed to discharge their burden of proof and to produce evidence capable of casting doubt on the applicant’s account of events (see Olisov and Others, cited above, §§ 83-85, and Ksenz and Others v. Russia, nos. 45044/06 and 5 others, §§ 102-04, 12 December 2017).

63.  Having regard to the circumstances of the case and the evidence before it, the Court finds that the applicant’s injuries were attributable to the violence suffered by him at the hands of the police, which amounted to inhuman and degrading treatment for which the State is responsible (see Gäfgen v. Germany [GC], no. 22978/05, § 90, ECHR 2010, and Leonid Petrov v. Russia, no. 52783/08, §§ 65-76, 11 October 2016).

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

III.  ALLEGED VIOLATION OF article 6 of THE CONVENTION

65.  Lastly, the applicant complained under Article 6 of the Convention that the criminal proceedings against him had been unfair, on account of the use of his self-incriminating statements made on 18 and 19 June 2008 as a result of his ill-treatment and in the absence of a lawyer and of effective legal assistance. The relevant parts of Article 6 read as follows:

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

...

3.  Everyone charged with a criminal offence has the following minimum rights:

...

(c)  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

...”

66.  The Government denied a violation of Article 6 of the Convention, relying on the authorities’ findings that the applicant had not been subjected to any ill‑treatment, that he had given his confession statements voluntarily, and that they had been lawfully used in evidence at his trial and had been supported by other evidence.

A.    Admissibility

67.  The Government stated that by failing to complain about the quality of his legal assistance and to seek the replacement of his lawyer, the applicant had failed to exhaust domestic remedies in respect of his complaint under Article 6 § 3 (c).

68.  The Court notes that the applicant raised the issue of the use of his self-incriminating statements at his trial, arguing, inter alia, that he had given his “statement of surrender and confession” in the absence of a lawyer, and that he had had no meeting with a lawyer before his examination as a suspect (see paragraph 32 above). The Government’s objection should be dismissed.

69.  The Court considers that the 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

70.  The Court reiterates that the admission of confession statements obtained in violation of Article 3 renders the criminal proceedings as a whole automatically unfair, irrespective of the probative value of those statements and irrespective of whether their use was decisive in securing the defendant’s conviction (see Gäfgen, cited above, §§ 166 and 173, and, among other authorities, Turbylev v. Russia, no. 4722/09, § 90, 6 October 2015).

71.  The Court has found that the applicant was subjected to inhuman and degrading treatment in police custody (see paragraph 63 above). It observes that the applicant’s confession statements formed part of the evidence adduced against him. The trial court did not find them inadmissible and relied on them when finding him guilty and convicting him. The court had to carry out its own independent assessment of the relevant medical, witness and other evidence with a view to ascertaining whether there were reasons to exclude as evidence those statements, allegedly “tainted” by a violation of Article 3 of the Convention, so as to ensure the fairness of the trial. Instead, it relied on the refusal of the investigating authority to institute criminal proceedings - a decision which the Court has found to have been based on an inquiry which did not meet the requirements of Article 3. This lack of a careful assessment of the quality of the impugned evidence and of the circumstances in which it was obtained was not remedied on appeal.

72.  In such circumstances, the Court concludes that, regardless of the impact the applicant’s statements obtained under duress had on the outcome of the criminal proceedings against him, their use in evidence rendered his trial unfair. This finding makes it unnecessary to examine separately the applicant’s complaint that the absence of a lawyer and of effective legal assistance had made his trial unfair (see Aleksandr Konovalov v. Russia, no. 39708/07, § 55, 28 November 2017).

73.  The foregoing considerations are sufficient for the Court to conclude that there has been a violation of Article 6 § 1 of the Convention in the present case.

IV.  ALLEGED VIOLATION OF article 13 of THE CONVENTION

74.  Lastly, the applicant complained that the authorities had failed to carry out an effective investigation into his complaint of police ill-treatment, thus failing to provide him with an effective remedy as required by Article 13, which 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.”

75.  The Government argued that the applicant had availed himself of effective domestic remedies in respect of his complaint under Article 3 by, in particular, appealing to a court against the refusals to institute criminal proceedings in relation to his complaints of police ill-treatment.

76.  The Court notes that this complaint is linked to the issue raised under the procedural aspect of Article 3 of the Convention and must therefore likewise be declared admissible.

77.  In view of its finding of a violation of Article 3 under its procedural head, the Court does not find it necessary to examine separately, under Article 13 of the Convention, the applicant’s complaint concerning the lack of an effective investigation into his ill‑treatment.

V.    APPLICATION OF ARTICLE 41 OF THE CONVENTION

78.  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.”

79.  The applicant claimed 50,000 euros (EUR) in respect of non‑pecuniary damage and EUR 9,000 in respect of legal services in the proceedings before the Court, to be paid directly to his representatives.

80.  The Government contested the claim in respect of legal costs, noting that Article 41 should be applied in accordance with the Court’s case-law.

81.  Having regard to the violations found, the Court awards the applicant EUR 26,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

82.  The Court notes that the applicant was paid EUR 850 in legal aid by the Council of Europe. It reiterates that according to its case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. It notes that the applicant neither made any payment nor submitted any document establishing his liability to pay for his legal representation. It therefore rejects his claim under this head.

83.  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 application admissible;

2.      Holds that there has been a violation of Article 5 § 1 of the Convention;

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

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

5.      Holds that there is no need to examine separately the complaint under Article 13 of the Convention;

6.      Holds

(a)  that the respondent State is to pay the applicant, within three months, EUR 26,000 (twenty-six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

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

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

Done in English, and notified in writing on 11 May 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova                                                                    Darian Pavli
Deputy Registrar                                                                       President