CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 14 septembre 2023

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RUSSIA (Applications nos.   30389/19 and 9 others – see appended list)           JUDGMENT   STRASBOURG 14 September 2023     This judgment is final but it may be subject to editorial revision.   In the case of Golovachev and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of:   Peeter Roosma , President ,   Ioannis Ktistakis,   Andreas Zünd , judges , and Viktoriya Maradudina, Acting Deputy Section Registrar, Having deliberated in private on 13 July 2023, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in applications against Russia lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2.     The Russian Government (“the Government”) were given notice of the applications. THE FACTS 3.     The list of applicants and the relevant details of the applications are set out in the appended table. 4.     The applicants complained of the torture or inhuman or degrading treatment. Some applicants also raised other complaints under the provisions of the Convention. THE LAW JOINDER OF THE APPLICATIONS 5.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. JURISDICTION 6.     The Court observes that the facts giving rise to the alleged violations of the Convention occurred prior to 16 September 2022, the date on which the Russian Federation ceased to be a party to the Convention. The Court therefore decides that it has jurisdiction to examine the present applications (see Fedotova and Others v. Russia [GC], nos.   40792/10 and 2 others, §§   68 ‑ 73, 17 January 2023). ALLEGED VIOLATION OF ARTICLE 3 of the Convention 7.     The applicants complained principally of the torture or inhuman or degrading treatment. They relied, expressly or in substance, on Article 3 of the Convention. 8.     The Court held in Bouyid v. Belgium ([GC], no. 23380/09, §§   81-90 and 114-23, ECHR 2015), that presumptions of fact was in favour of applicants claiming   to be victims of a violation of Article   3 of the Convention, if they demonstrate that the alleged ill-treatment was inflicted when they were under the control of the police or a similar authority. Moreover, in the context of detainees, the Court has emphasised that persons in detention are in a vulnerable position and that the authorities have a duty to protect their physical well-being and that any recourse to physical force which has not been made strictly necessary by the applicants’ own conduct diminishes human dignity and in principle constitutes a violation of the right enshrined in Article 3 of the Convention (see Sheydayev v. Russia , no.   65859/01, § 59, 7 December 2006). The burden of proof rests on the Government to show that the use of force, which resulted in the applicants’ injuries, was not excessive (see, for example, Dzwonkowski v.   Poland , no.   46702/99, § 51, 12 April 2007, and compare with Kursish and Others v.   Russia   [Committee], nos. 62003/08 and 5 others, § 84, 5 July 2022). 9.     Furthermore, in the cases of Lyapin v. Russia, no. 46956/09, §§   128 ‑ 40, 24   July 2014 and Samesov v. Russia, no. 57269/14, §§ 54-63, 20 November 2018, as well as in Kuchta and Mętel v. Poland , no. 76813/16, § 88, 2   September 2021, the Court has already found, in particular, that the authorities’ refusal to open a fully-fledged criminal investigation into the credible allegations of ill-treatment, as well as the lack of assessment of the necessity and proportionality of the use of lawful force by the police were indicative of the State’s failure to fulfil its procedural obligation under Article   3 of the Convention. 10.     Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. The Court therefore finds these complaints admissible and observes that there has been a violation of the substantive and procedural limbs of Article 3 of the Convention in respect of all the applicants. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 11.     In applications nos. 54938/19, 36460/20 and 15519/22 the applicants submitted other complaints which also raised issues under the Convention, in the light of the well ‑ established case-law of the Court (see the attached table). These complaints are not manifestly ill-founded within the meaning of Article   35 §   3   (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Turbylev v.   Russia , no.   4722/09, § 90, 6 October 2015; Aleksandr Konovalov v.   Russia , no.   39708/07, §§ 13-14 and 54, 28 November 2017; Gorlov and   Others v.   Russia , nos. 27057/06 and 2 others, § 100, 2 July 2019; and Firstov v.   Russia [Committee], no. 67312/12, 2 June 2020. REMAINING COMPLAINTS 12.     Some applicants also submitted additional complaints under various Articles of the Convention. Having examined all the material before it, and given its findings in paragraphs 10-11 above, the Court concludes that there is no need to examine separately these complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 7848/08, ECHR 2014; Aleksandr Andreyev v. Russia , no. 2281/06, § 71, 23 February 2016; and Leonid Petrov v. Russia , no. 52783/08, § 86, 11 October 2016). APPLICATION OF ARTICLE   41 OF THE CONVENTION 13.     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.” 14.     Having regard to the documents in its possession and to its case ‑ law (see   Ksenz and Others v. Russia , nos. 45044/06 and 5 others, § 120, 12   December 2017; and, for similar situations, Zagaynov and Others v.   Russia [Committee], nos. 5666/07 and 4 others, 15 June 2021, and   Dauberkov and Others v. Russia [Committee], nos. 60844/11 and 2   others, § 64, 22 March 2022), the Court considers it appropriate to award the sums indicated in the appended table. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Decides to join the applications; Holds that it has jurisdiction to deal with the applicants’ complaints as they relate to facts that took place before 16 September 2022; Declares the applicants’ complaints about torture or inhuman and degrading treatment at the hands of State officials, and other complaints raised under the well-established case-law of the Court (see appended table) admissible, and finds that it is not necessary to examine separately the remaining complaints raised by some of the applicants; Holds that these applications disclose a breach of the substantive and procedural limbs of Article 3 of the Convention related to the applicants’ torture or inhuman or degrading treatment; Holds that there has been a violation of the Convention as regards the other complaints raised under the well-established case-law of the Court (see appended table); Holds (a)   that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 14 September 2023, pursuant to Rule   77   §§   2 and   3 of the Rules of Court.     Viktoriya Maradudina   Peeter Roosma   Acting Deputy Registrar   President   APPENDIX List of applications raising complaints under Article 3 of the Convention (torture or inhuman or degrading treatment) No Application no. Date of introduction Applicant’s name Year of birth   Representative’s name and location Factual information Medical evidence of ill-treatment Date of first complaint Decision issued in response to complaint of ill-treatment Decision under Article 125 of the CCrP Appeal decision Information relating to conviction Other complaints under well ‑ established case-law Amount awarded for pecuniary and non ‑ pecuniary damage and costs and expenses per applicant (in euros) [1]     30389/19 22/05/2019 Andrey Grigoryevich GOLOVACHEV 1967     On 31/12/2016 the applicant was ill ‑ treated by prison guards of remand centre no. IZ-4 of Shakhty in the Rostov Region. He was handcuffed with his hand behind his back and hit and kicked on his chest and back. The guards threatened to set a dog on him. The applicant was refused access to a doctor until his transfer to remand centre no.   IZ ‑ 1 in Volgograd on 17/01/2017.   Medical records of medical unit no. 11 in IZ-1 in Volgograd on 17/01/2017: bruise on the applicant’s chest. On 18/01/2017 complaint to the Shakhty Investigative Committee / Seven refusals to open a criminal case, the first on 19/02/2017, the   last on 27/12/2019. The   investigator examined the medical evidence and questioned several guards from IZ-4. On 28/02/2019 the Shakhty Town Court rejected the applicant’s complaint as the refusal of 08/11/2018 had been overruled by the investigator’s superiors / No   appeal. Sentenced to life imprisonment for attempted rape, several counts of murder on 13/05/2002 by the Supreme Court of the Komi Republic/ upheld on appeal on 17/04/2003. Sentenced to eighteen years’ imprisonment for two counts of murder on 22/05/2022 by the Sergiyev-Posad Town Court / upheld on appeal on 28/07/2022.       26,000     54938/19 12/10/2019 Artem Andreyevich SERGEYEV 1994 Alferova Larisa Valentinovna Perm In the evening on 20/09/2018, officers of police department no.   2 in Perm arrested the applicant in his flat. Then they knocked him down and punched him all over the body. Later on the same date, at the police station they subjected him to further beatings to make him confess to a sexual assault. Record at medical unit no. 59 in remand prison SIZO-6 in the Perm Region of 02/10/2018 (on the medical examination of 22/09/2018: right elbow abrasion, right knee abrasion, submandibular abrasion). On 21/09/2018 complaint to the Tver investigative committee /Refusals to open a criminal case of 22/10/2018, 14/01/2019, 29/04/2019. On 05/07/2019 the Industrial District Court in Perm rejected the applicant’s complaint as the refusal of 29/04/2019 had been overruled by the investigators’ superiors on 25/06/2019 /   no appeal. On 11/04/2019 the Industrial District Court in Perm convicted the applicant of three episodes of sexual assault and sentenced him to 18   years’ imprisonment/ upheld on appeal by the Perm Regional Court on 11/06/2019. Art. 6 (1) - lack of fair hearing - Conviction of sexual assault of a minor, 7-th Cassation Court on 18/01/2022 (no second-tier cassation appeal to the Supreme Court). The applicant was deprived of a possibility of confidential communication with his lawyer during the proceedings which included: i)   inability to have confidential communication in a remand prison since, due to the COVID-restrictions, all meetings with the lawyer were organised in a room with a glass partition and were supervised by the convoy officers who passed all written communications between then; ii)   inability to have confidential communications during the hearings, since the convoy officers were present and passed all the written communications between the applicant, confined in a glass cabin, and his lawyer (Firstov v. Russia [Committee], no.   67312/12, 2 June 2020). 26,000     11733/20 15/02/2020 Sergey Yevgenyevich PEGUSHIN 1975 Alferova Larisa Valentinovna Perm In the evening on 04/11/2018 police officers of the Solikamsk Police Department arrested the applicant. One of the officers punched him during the arrest although the applicant was handcuffed. Then the officers took the applicant to the police station where they pushed him to the floor and repeatedly kicked him to make him confess to a sexual assault.   Record of physical injuries, medical ward no. 324 of temporary detention centre IVS at the Solikamsk Police Department of 20/07/2019 (on the medical examination of 05/11/2018: thorax and right elbow abrasions). Forensic medical report no. 1818 м/д of 23/10/2019 by the Solikamsk Forensic Bureau: thorax and right elbow abrasions. The injuries could have been caused by a hard blunt object. The exact time of infliction of the injuries could not be determined.               On 08/11/2018 complaint to the Solikamsk investigative committee /Refusals on 05/04/2019, 16/05/2019, 19/09/2019. On 10/02/2020 the Solikamsk Town Court rejected the applicant’s complaint as the refusal of 19/09/2019 had already been overruled by the investigators’ superiors / no   appeal. Conviction of sexual assault of minors by the Solikamsk Town Court on 26/06/2019/ upheld on appeal by the Perm Regional Court on 22/08/2019.   26,000     31869/20 08/07/2020 Ivan Vladimirovich FALKOV 1985     On 01/09/2015 correctional officers of IK-8 in Labytnangi, Yamalo-Nenetsk Region, where the applicant was serving his 8-year sentence, beat him and sprayed tear gas in his face. Extract from the inmate’s medical card at medical ward of IK ‑ 8 on 01/09/2015: abrasion on the left shoulder blade, haematoma on the chest and right inner shin, circular hyperaemia of both wrists. On 02/09/2015 complaint to the Yamalo-Nenetsk investigative committee/ Refusal to open a criminal case of 05/10/2015, which the applicant received only two and a half years after and therefore he only challenged it before a prosecutor in March 2018. Then, two more recent refusals to open a criminal case, on 17/10/2018 and 26/11/2018 were issued.           On 30/10/2019 the Labytnangi Town Court rejected the applicants’ appeals against the refusals of 17/10/2018 and 26/11/2018 respectively/ On 06/02/2020 that decision was upheld by the Yamalo-Nenetsk Regional Court. The applicant was convicted on 14/08/2014 by the Yekaterinburg Town Court. He arrived at IK-8 Yamalo-Nenetsk Region on 19/05/2015   26,000     36460/20 08/07/2020 Aleksandr Alekseyevich SHCHERBATOV 1976     On 15/05/2017 in Lesnikovo, Kurgan Region, officers of the Kurgan Regional department of the Federal Security Service (FSB) subjected the applicant to beatings in their office. Report drawn upon the applicant’s admission to the IVS in Kurgan on 15/05/2017: abrasions on the head, left elbow, and forehead, bruises on the right cheek, under both eyes, on the inner thighs, broken jaw. Certificate of the Kurgan Regional Hospital of 16/05/2017 (broken jaw). Report drawn upon the applicant’s admission to SIZO-1 in Kurgan on 17/05/2017; abrasion on the head, left elbow, and the forehead, bruises on the right cheek and under both eyes.   In November 2017 the applicant was interviewed by an investigator regarding the report from SIZO-1 describing the applicant’s injuries. Fearing negative repercussions from the FSB officers, the applicant told the investigator that he had fallen from the roof on 14/05/2017. First complaint to the prosecutor’s office on 01/03/2018/Refusals to open a criminal case on 09/04/2018, 26/10/2018, 24/05/2019, 09/09/2019. On 11/12/2019 the Chelyabinsk Garrison Military Court / upheld on 04/06/2020 by the Tsentralniy Circuit Military Court On 01/03/2018 the Ketovskiy District Court of Kurgan Region convicted the applicant of attempted sale of drugs and sentenced him to eleven years’ imprisonment. No information about appeal Art. 8 (1) - permanent video surveillance of detainees in pre ‑ trial or post-conviction detention facilities - Since 23/07/2019 and pending on the date when the application was lodged with the Court, in IK-29 Kirov Region: opposite-sex operators, detention in different cells with video surveillance, video surveillance in a lavatory and/or shower room 26,000     38545/21 19/07/2021 Tatyana Nikolayevna TSERENKOVA 1979 Toreyeva Svetlana Anatolyevna Moscow On 23/04/2019 a police officer from the Smolensk police station no.2 arrived at the applicant’s home to take her husband to the police station. In the presence of her children, the officer twisted the applicant’s arms trying to grab the keys to the flat. Forensic medical examination report no. 437 of 24/04/2019 by the Smolensk Regional Forensic Bureau: bloodstain and abrasion on the applicant’s right forearm. On 25/04/2019 complaint to the Smolensk Regional prosecutor / Refusals to open a criminal case due to the lack of corpus delicti on 30/04/2019 and 24/06/2019. On 20/01/2021 the Zadneprovskiy District Court in Smolensk discontinued the examination of the complaint as the impugned refusals had been overruled by the investigators’ superiors / Upheld on 22/03/2021 by the Smolensk Regional Court.                             6,500     59318/21 10/02/2022 Dmitriy Aleksandrovich KLIMOV 1981     At about 8.30 a.m. 17/10/2017 the applicant, a former law-enforcement agent, was blindfolded, handcuffed and taken to a car at gunpoint by five plainclothes officers who took him to the Samara Regional Police Department. There he was subjected to ill ‑ treatment by the officers who hung him up in a folded position, electrocuted and suffocated him in order to make him confess to a crime. Medical records of 17/10/2017 by the IVS of the Samara Regional Police Department: bruises, swellings and bloodstains on arms and legs, abrasion on the right shoulder. Forensic medical examination no.   04 ‑ 8m/3603 of 27/10/2017 by the Samara Regional Forensic Bureau: hematomas on the arms, shoulders and left leg, abrasions and injuries on the legs, palms of the hands and arms, as well as burns on fingers; injuries likely caused by a hard blunt object and a hot object within 6 to 14   days prior to the examination.     On 19/10/2017 at the trial against the applicant / On 13/12/2017 first refusal to open a criminal case for the lack of corpus delicti, last refusal on 22/10/2018. On 01/07/2021 the Samara Town Court rejected the applicant’s complaint against the last refusal/on 17/09/2021 the Samara Regional Court upheld it on appeal. On 05/08/2020 the applicant was convicted of banditry/No   information about appeal.   52,000     6531/22 25/01/2022 Zarifzhon Nurulloyevich MIRZONAZAROV 1981 Sadovskaya Olga Aleksandrovna Nizhniy Novgorod On 16/06/2020 the applicant, an Uzbek national awaiting deportation in the Belyaevsk District Temporary Detention Centre for Foreign Nationals of the Orenburg Region, was handcuffed and subjected to beatings with rubber truncheons by wardens in reprisal for the detainees’ obstruction of CCTV cameras in their cells. Forensic medical report no. 186 of 09/07/2020 by the Saraktashsk Forensic Bureau of the Orenburg Region: haematoma on the left thigh which may have been caused by a hard blunt object in time relevant to the circumstances of the case. On 17/06/2020 complaint to the Orenburg Regional Investigative Committee/ Refusals to open criminal file on 18/07/2020, 30/09/2020, and 11/11/2020, overruled by the investigator’s superiors. Latest - 16/12/2020, the investigators considered that the use of force against the applicant during the incident on 16/06/2020 was lawful.             On 03/08/2021 the Belyaevskiy District Court of the Orenburg Region dismissed the applicant’s complaint against the decision of 16/12/2020 having considered that the impugned decision was lawful, reasoned and duly motivated. / On 05/10/2021 the Orenburg Regional Court upheld it on appeal.     26,000     15519/22 28/02/2022 Murat Aliyevich BUDAYEV 1995 Shukhardin Valeriy Vladimirovich Moscow On 02/06/2019 the applicant was arrested in Kabardino-Balkaria with the use of force (he was kicked and threatened with a gun) on suspicion of murder. He was then taken to a police station where he was beaten up by police officers with the view to force him to confess. On 04/06/2019 he was also beaten up by officers of SIZO-1 in Nalchik. Medical examination no.   348-A on 04/06/2019 by the Nalchik Forensic Bureau: bruising of the right iliac region, left subscapular region, anterior surface of the right lower leg, caused by blunt objects 1 ‑ 3   days prior to the examination. Expert examination act no. 359-A of 13/06/2019 by the same bureau: bruising of the lower eyelid of the right eye and haemorrhage in the sclera of the right eye; bruising of the left lumbar region and anterior surface of the knee joints. The injuries could have been inflicted 5-7 days before the date of the examination and could have been caused by fists and feet. On 04/06/2019 complaint to the Kabardino-Balkaria Investigative Committee / Refusals to open a criminal case of 09/01/2020, 25/03/2020, 25/04/2020, 28/05/2020, 30/06/2020, 13/08/2020, 24/08/2020, 14/09/2020, all overruled by the investigators’ superiors. Last refusal on 30/10/2020. The applicant did not contest the refusals under Art. 125 of the CCrP, however, he raised the ill ‑ treatment complaint at his trial. The courts examined the merits of his complaint and the respective medical documents but dismissed the complaint because it considered the injuries to have been self ‑ inflicted. On 21/09/2020 the Supreme Court of Kabardino-Balkaria convicted the applicant of robbery and murder. The court based the conviction, inter   alia , on the applicant’s confession of 07/06/2019. The applicant claimed that he had given his confession under duress/upheld by the Third Court of Appeal on 25/01/2021 and by the Supreme Court of Russia on 07/09/2021. Art. 6 (1) - and Art. 6 (3) (c) - unfair criminal proceedings due to lack of legal representation – Admission, as evidence, of the applicant’s confession statements obtained as a result of ill-treatment rendered the proceedings, as a whole, unfair. This finding applies irrespective of the probative value of the statements and irrespective of whether their use was decisive in securing the defendant’s conviction (see Ryabov v. Russia, no. 2674/07, § 57, 17 July 2018).   26,000   56089/22 07/11/2022 Oleg Aleksandrovich TSVETKOV 2000     At 6 p.m. on 13/09/2019 the applicant was apprehended in a street and taken to police department no. 9 in Irkutsk where police officers beat him all over the body, suffocated him with a gas mask and threatened to rape him to make him confess to a crime. After 9 p.m. on the same day he was released without any charges. Medical certificate of 14/09/2019 by Irkutsk State Hospital no.   3: hematomas all over the head, brain concussion. Forensic medical examination act no.   1558 of 10/03/2020: brain concussion and multiple abrasions on the body and shoulders probably caused by hard blunt objects on 13/09/2019.   On 14/09/2019 a doctor who examined the applicant reported to police department no.   9 in Irkutsk that the applicant had been ill-treated by their officers   / Refusal to open a criminal case: 16/10/2019, 13/12/2019, 09/02/2020, 11/04/2020, 21/10/2020 / The criminal case against the police officers was opened on 13/01/2021 / Termination of the case on 13/12/2021. The applicant appealed against the termination of the case. On 04/04/2022 the Oktyabrskiy District Court in Irkutsk declared the termination unlawful/The decision was quashed on appeal on 08/06/2022 and remitted to the first instance for re-examination/ On 02/08/2022 the same District Court dismissed the complaint/on 12/10/2022 the Irkutsk Regional Court upheld the decision. -   26,000   [1] Plus any tax that may be chargeable to the applicants.