I correctly predicted that there was a violation of human rights in YELCHANINOV v. RUSSIA.
Information
- Judgment date: 2021-03-16
- Communication date: 2014-06-24
- Application number(s): 20179/12
- Country: RUS
- Relevant ECHR article(s): 3, 5, 5-1, 13
- Conclusion:
Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment
Inhuman treatment) (Substantive aspect)
Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention) - Result: Violation SEE FINAL JUDGMENT
JURI Prediction
- Probability: 0.775346
- Prediction: Violation
Consistent
Legend
Communication text used for prediction
1.
The applicant, Mr Oleg Gennadyevich Yelchaninov, is a Russian national, who was born in 1968 and lives in Orenburg.
He is represented before the Court by the Committee Against Torture, a non‐governmental organisation based in Nizhniy Novgorod.
2.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A.
The applicant’s arrest and alleged ill-treatment 3.
On 2 December 2006 at midday the applicant was apprehended at his home by police officers who had received a phone call from the alleged victim of rape.
The applicant was taken to the Leninskiy District police department of Orenburg (Ленинский РОВД г. Оренбурга), where he was beaten up by police officers Mi., B., and Ma.
His arrest was recorded at 7.55 p.m. on 3 December 2006.
4.
On 4 December 2006 at 12.40 a.m. police officers took the applicant to the Orenburg town hospital, where his injuries were recorded.
At 2.45 a.m. on the same day the applicant was placed in the Orenburg temporary detention centre (ИВС).
On 6 December 2006 he was placed in the Orenbourg remand prison IZ-56/1.
B.
The applicant’s injuries 5.
The applicant claims that he received the following injuries as a result of his ill-treatment by police officers, as indicated in the documents listed below, which concern the applicant’s state of health on 4-6 December 2006: (a) Bruises on face (court records of the Leninskiy District Court of Orenburg of 5 December 2006); (b) Bruises on his face, chest and back (medical certificate of Orenburg remand prison IZ-56/1 of 26 June 2007); (c) Bruises on his face, chest, right shoulder, both hips and right buttock (certificate of the Orenburg temporary detention centre of 4 February 2009); (d) Bruises on face (certificate of the Orenburg town hospital).
6.
The applicant raised an issue of his ill-treatment during the court hearing on 5 December 2006 related to his pre-trial detention.
7.
According to the certificate of the Orenburg temporary detention centre dated 4 February 2009, the applicant stated that the injuries were not related to his apprehension and further detention.
According to the applicant, he gave that false statement out of fear because police officers were present at that moment.
8.
According to Mr L., an attesting witness during the search held at the applicant’s home immediately after his apprehension, the applicant had no injuries at that moment.
C. Pre-investigation inquiry into the applicant’s allegation of police ill‐treatment 1.
Refusals to open a criminal case 9.
The Orenburg investigation division of the investigative committee at the Orenburg regional prosecutor’s office (следственный отдел по городу Оренбургу Следственного управления Следственного комитета при прокуратуре Российской Федерации по Оренбургской Области, “the Investigative Committee”) refused to open a criminal case into the applicant’s alleged ill-treatment five times pursuant to Article 24 § 1 (2) of the Code of Criminal Procedure (“CCrP”) for lack of the elements of a crime provided for by Articles 285 and 286 of the Criminal Code in the acts of the police officers.
It concluded that the applicant’s allegations had not been confirmed by any evidence, or had been inconsistent, in view of the applicant’s statement made upon his arrival at the temporary detention centre that he had received his injuries before his arrest.
10.
The first refusal was issued on 14 December 2007 and revoked on 28 February 2008 by higher authorities within the Investigative Committee.
The subsequent refusals were issued on: 9 March 2008 and revoked on 10 April 2008, 20 April 2008 and revoked on 15 September 2009, 18 September 2009 and revoked on 15 January 2010.
The last refusal was issued by the Investigative Committee on 25 January 2010.
It appears that the Investigative Committee had never interviewed the applicant in the course of its inquiry.
2.
Article 125 review of the refusals to open a criminal case 11.
On 12 August 2009 the Leninskiy District Court of Orenburg found the Investigative Committee’s decision of 20 April 2008 to lack reasons.
In particular, the court noted that the Investigation Committee should have questioned the applicant and the police officer who made the first steps in the investigation of the case against the applicant, and that no explanation of the applicant’s injuries had been provided.
12.
On 22 September 2010 the same court dismissed the applicant’s appeal against the last refusal to open a criminal case.
The court found that the refusal was reasonable and lawful and that the allegations of ill‐treatment had been examined in the course of the proceedings in the criminal case against the applicant.
On 29 September 2011 the Orenburg Regional Court upheld that decision on appeal.
D. Criminal proceedings against the applicant 13.
The applicant was found guilty of rape, sexual assault and illegal deprivation of liberty of another person by the judgment of the Leninskiy District Court of Orenburg dated 8 May 2007.
The court dismissed the applicant’s allegations of his ill-treatment by police officers because the investigation authorities had found them to be unsubstantiated and because the applicant had not made any self-incriminating statements.
The judgment was upheld on appeal on 19 June 2007 by the Orenburg Region Court.
The appeal court dismissed the applicant’s complaint of ill-treatment noting that the investigation authorities had found it unsubstantiated.
COMPLAINTS 14.
The applicant complains under Article 5 § 1 (c) of the Convention of his unrecorded detention between midday on 2 December 2006 and 7.55 p.m. on 3 December 2006.
15.
He complains under Articles 3 and 13 of the Convention that he was subjected to ill-treatment by the police officers on 2 December 2006 and that the State failed to conduct effective investigation into those events.
16.
The applicant also complains under Article 13 that in the absence of effective investigation into his complaint a civil claim for damages would have no prospects of success.
Judgment
THIRD SECTIONCASE OF YELCHANINOV v. RUSSIA
(Application no. 20179/12)
JUDGMENT
STRASBOURG
16 March 2021
This judgment is final but it may be subject to editorial revision. In the case of Yelchaninov 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. 20179/12) 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 Oleg Gennadyevich Yelchaninov (“the applicant”), on 29 March 2012;
the decision to give notice to the Russian Government (“the Government”) of the application, in which the applicant complained of his deprivation of liberty, his alleged ill‐treatment by the police and a lack of an effective investigation into his complaints;
the parties’ observations;
Having deliberated in private on 16 February 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns the alleged ill-treatment of the applicant by the police and the alleged lack of an effective investigation into his complaints. THE FACTS
2. The applicant was born in 1968 and lives in Orenburg. He was represented by the Committee against Torture, a non-governmental organisation (NGO) based in Nizhniy Novgorod. 3. The Government were represented initially by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights, and subsequently 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. 5. On 2 December 2006, during the daytime, the applicant was apprehended by police officers at his home on suspicion of rape. According to the applicant, a search was carried out of his apartment by V.I., an investigator from the Leninskiy district prosecutor’s office of Orenburg, in the presence of witnesses. He was then taken to the station of the Leninskiy district police department of Orenburg, where he was interviewed by three police officers. 6. According to the applicant, he spent more than twenty-four hours in police custody, during which time he was repeatedly beaten up by the police officers. In particular, he was allegedly made to sit on a chair with his hands shackled behind it, and the officers delivered blows to his head with a baseball bat, kicked him in the chest, and stifled his breathing by placing a plastic bag over his head and cutting off his access to air. 7. In his written statement to the police of 2 December 2006, the applicant denied having committed the alleged rape. 8. On 3 December 2006 criminal proceedings were brought in connection with the alleged rape. From 6.30 p.m. to 7.30 p.m. V.I. questioned the applicant, in the presence of a lawyer, in respect of the alleged offence. The applicant denied that he was guilty. 9. At 7.55 p.m. V.I. issued a record of the applicant’s arrest as a suspect, stating that he had been arrested at 4.55 p.m. on 3 December 2006. 10. The applicant was taken to Orenburg town hospital no. 1 where he was examined at 12.40 a.m. on 4 December 2006 and diagnosed with bruising to the face and haematomas of the eyelids. He explained that he had fallen over in the street. 11. At 2.45 a.m. on 4 December 2006 the applicant was placed in the temporary detention centre (“the IVS”) of the Orenburg police department. A medic on duty reported the following injuries on him: bruises around both eyes and on the right cheek; an abrasion of the left superciliary arch; and bruises on the chest, right shoulder, both hips and right buttock. The applicant stated that the injuries had been received at home (в быту). 12. According to the applicant, he felt afraid owing to the presence of the police officers who had assaulted him and therefore gave false statements at the hospital and at the temporary detention centre about how his injuries had arisen. 13. On 5 December 2006 the Leninskiy District Court examined a request by V.I. for the applicant’s detention on remand. The investigator stated at the hearing that the applicant’s medical examination had been ordered and that the applicant had explained that “he had fallen over”. The applicant, who was assisted by a lawyer, stated that he had been beaten up by police officers and that he had asked for an examination by an expert to be arranged. The court noted in the record of the hearing that the applicant had injuries “on the head, around the eyes”. 14. On 6 December 2006 the applicant was placed in Orenburg pre-trial detention centre IZ-56/1, where bruises on his face, chest and back and abrasions of the left eyelid were recorded by a medic. 15. According to L., who was present during the search carried out in the applicant’s home on 2 December 2006 (before the applicant was taken to the police station), the applicant had no injuries at the time. A certain R. testified that she had seen the applicant without any injuries at his home at approximately 9 a.m. on the day of his apprehension by the police. The statements by L. and R. were recorded on 19 February and 10 December 2009, respectively, by the NGO Committee against Torture, which provided the applicant with legal assistance. 16. According to a report by a psychologist, based on a psychological assessment of the applicant on 10-13 November 2014, he suffered from post-traumatic stress disorder and had undergone changes in his emotional well-being related to his ill-treatment by the police between 2 and 5 December 2006. 17. On 7 December 2006 the applicant’s allegations of police ill‐treatment (made at the hearing before the Leninskiy District Court on 5 December 2006) were reported by the prosecutor, who had been present at that hearing, to the prosecutor of the Leninskiy district of Orenburg. Consequently, a pre‐investigation inquiry was carried out by V.A., an investigator from the Leninskiy district prosecutor’s office. 18. In his interview, the applicant stated that on 2 December 2006 he had been apprehended by police officers and taken to the police station where they had subjected him to physical violence – delivering about thirty blows to him – and to psychological pressure in order to make him confess to the rape. 19. According to statements by the police officers, at approximately 1 p.m. on 2 December 2006 the applicant’s neighbours alerted the police to a woman’s cries for help coming from the applicant’s flat. The police officers arrived and found two men (the applicant and M.) and a young woman; they took her to the police station. At the station she told them she had been raped. They went back to the flat and apprehended the applicant and, later, M. At that time the applicant had visible injuries on his face. He tried to run away and they stopped him and shackled his hands behind his back. No other force was used. The police officers interviewed the applicant at the police station. 20. Having also noted the applicant’s injuries as recorded at the IVS detention facility and his statement on his arrival there that he had received those injuries at home, V.A., the investigator, concluded in his decision of 18 December 2006 (approved by a deputy prosecutor of the Leninskiy district of Orenburg on the same day) that it had been impossible to refute the police officers’ claims that the applicant had already had the injuries at the time when he was apprehended. He also concluded that in the absence of any objective evidence, no elements of the offences under Article 285 (abuse of authority) or under Article 286 (exceeding authority) of the Criminal Code could be established in the police officers’ actions, and that therefore no criminal proceedings should be brought against them. According to the applicant, he was not informed of the decision of 18 December 2006. 21. The criminal proceedings against the applicant and M. resulted in their conviction for, inter alia, rape and the illegal deprivation of the victim’s liberty (committed between 9 a.m. and 2 p.m. on 2 December 2006), by a judgment of the Leninskiy District Court of Orenburg of 8 May 2007. There is no indication in the judgment that the applicant received injuries from the rape victim. At the trial the applicant stated that he had been ill-treated by the police officers in order to make him confess to the offence. The court held that the applicant’s allegations of being beaten up by the police officers were unconvincing because his complaints had been examined by the prosecutor’s office and found to be unsubstantiated. It also noted that the applicant had consistently denied his involvement in the offence at the preliminary investigation stage and at the trial and therefore no external influence on his statements could be discerned. The applicant was sentenced to seven years’ imprisonment, to run from the time of his actual arrest on 2 December 2006. On 19 June 2007 the Orenburg Regional Court upheld the judgment on appeal, endorsing the District Court’s finding in respect of the applicant’s allegations of police ill-treatment. 22. On 4 December 2007 the NGO Committee against Torture lodged a criminal complaint against the police officers on the applicant’s behalf. 23. Investigators from the Orenburg investigation division of the investigative committee at the Orenburg regional prosecutor’s office carried out several rounds of a pre‐investigation inquiry and refused five times (see the table below for dates) to bring criminal proceedings concerning the applicant’s alleged ill-treatment by the police pursuant to Article 24 § 1 (2) of the Code of Criminal Procedure as the elements of the offences under Articles 285 and 286 of the Criminal Code could not be established in respect of the police officers’ actions. They relied on explanations by the police officers and by V.I., the investigator, all of whom denied any violence against the applicant. One of the police officers also stated that the applicant, who was suspected of rape, had been taken to the police station where he had been interviewed and had given statements. V.I. stated that, following the reporting of the rape, he had gone to an address to carry out initial investigative inquiries and to establish the identity of the offenders, that is, the applicant and M. He had then opened a criminal case. All investigative actions had been carried out in the presence of a lawyer. He could not explain how the applicant’s injuries had arisen. 24. It was concluded that the applicant’s allegations were refuted by the police officers’ statements. Moreover, the applicant’s allegations were unconvincing in view of the statements he gave at the hospital and at the IVS detention facility, in which he explained that he had sustained the injuries during normal day-to-day activities. The first four refusals were revoked as unfounded, having been based on an incomplete inquiry. One of those refusals (dated 20 April 2008) was declared to be unfounded and based on an incomplete inquiry by the Leninskiy District Court on 12 August 2009 following the applicant’s appeal under Article 125 of the Code of Criminal Procedure. The applicant’s appeal against the fifth refusal dated 25 January 2010 was dismissed by the Leninskiy District Court’s decision of 22 September 2010; that dismissal was in turn upheld by the Orenburg Regional Court on 29 September 2011, on the grounds that the applicant’s allegations of police ill-treatment had been assessed at his trial and that the investigator had dismissed his allegations in a lawful and well‐founded decision. 25. On 19 August 2014 an acting head of the procedural supervision unit of the Orenburg regional investigative committee revoked the refusal of 25 January 2010 as unfounded. New rounds of a pre-investigation inquiry were carried out during which a forensic medical expert’s opinion was received and the police officers and a number of individuals were interviewed about the events of 2 December 2006. 26. The forensic medical expert concluded in his report of 17 September 2014 that the applicant’s injuries, which had been recorded by the detention facilities on 4 and 6 December 2006 (bruises on the face, torso, right shoulder and both hips, as well as abrasions of the left superciliary arch), could have been received by the applicant as a result of repeated impacts of a hard blunt object “some time before his examination” at the detention facilities. 27. One of the police officers stated that after being informed of his arrest on suspicion of rape, the applicant had voluntarily proceeded to the police car without any resistance. No force had been applied to him. He had not had any injuries on his face, arms or any visible parts of his body. He had been taken to the Leninskiy district police department and handed over to the police officers on duty. 28. The other two police officers gave similar statements, denying that they interviewed the applicant at the police station. V.I., the investigator, denied that the injuries had been inflicted on the applicant during the investigative actions, noting that all those actions had been carried out in the presence of a lawyer. 29. The rape victim stated that, after being raped, she had been at the police station where she had seen the applicant accompanied by police officers. He had not had any injuries or blood on him. She further stated that, while being raped, she had resisted and in doing so might have inflicted injuries on the applicant. 30. Two individuals, Sh. and V., stated that they had been present during the search of the applicant’s flat, which had been carried out by law‐enforcement officials on 2 December 2006. They saw the applicant sitting on a chair, with his head hung low. They could not remember whether there had been any injuries on him. 31. On the dates indicated in the table below, an investigator from the Orenburg Southern administrative circuit investigation unit of the Orenburg regional investigative committee issued three refusals to bring criminal proceedings against the police officers and against V.I., the investigator. The refusals were issued on the same grounds as before, concluding that the applicant’s allegations had not been confirmed. No explanation as to the cause of the applicant’s injuries was given. No. Refusal to bring criminal proceedings issued on:
revoked on:
1. 18/12/2006
unspecified
2. 14/12/2007
28/02/2008
3. 09/03/2008
10/04/2008
4. 20/04/2008
15/09/2009
5. 18/09/2009
15/01/2010
6. 25/01/2010
19/08/2014
7. 26/09/2014
27/09/2014
8. 27/10/2014
27/10/2014
9. 26/11/2014
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
32. The applicant complained that he had been subjected to ill-treatment by the police officers and that no effective investigation had been conducted into his allegations. 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.”
33. The Government, relying on the findings of the domestic authorities, denied that there had been any violation of Article 3. 34. The Court notes that these 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. 35. The relevant general principles were reiterated by the Court’s Grand Chamber in Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-88, ECHR 2015). In particular, where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of individuals within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. The burden of proof is then on the Government to provide a satisfactory and convincing explanation by producing evidence establishing facts which cast doubt on the version of events given by the victim. In the absence of such an explanation, the Court can draw inferences which may be unfavourable for the Government. That is justified by the fact that those in custody are in a vulnerable position and the authorities are under a duty to protect them (ibid., § 83). 36. The Court observes that the following sequence of events commencing on 2 December 2006 is not in dispute between the parties and is supported by the evidence in the case file (see paragraphs 5-16 above). The applicant, who was suspected of having committed the offence of rape, spent approximately twenty-four hours in police custody – without his arrest having being recorded – being interviewed, without a lawyer present, by the police officers about his involvement in the offence. The fact that he had actually been arrested on 2 December 2006 and not (as was stated in the official arrest record) on 3 December 2006 was acknowledged by the trial court in its judgment (see paragraph 21 above). After his time spent in police custody he was found to have certain injuries. From the police station he was taken to a local hospital, where his injuries were certified. They were also recorded at the IVS detention facility and at the pre-trial detention facility. Statements by witnesses, who confirmed seeing the applicant without injuries before his arrest, were recorded by the applicant’s lawyer. 37. The Court would note that it is entirely plausible that while still under the control of the police officers who had assaulted him, all the more so in their presence, the applicant was reluctant to accuse them when asked at the hospital and the IVS detention facility about how his injuries had arisen. He gave confused and vague statements to the effect that he had fallen over in the street or had received the injuries at home (see paragraphs 10-11 above). What is important, however, is that the next day the applicant, who was assisted by a lawyer, complained before the court about his ill‐treatment by the police officers (see paragraph 13 above). 38. Having regard to the above circumstances and the evidence of the applicant’s injuries in the records of the hospital, the detention facilities and the court and in the psychologist’s and forensic medical expert’s reports (see paragraphs 10-11, 13-14, 16 and 26 above), which is consistent with his allegations of violence sustained at the hands of the police on 2 December 2006, the Court finds the applicant’s allegations of police ill‐treatment to be credible. 39. The Court further observes that the applicant’s allegations that his injuries had been the result of ill-treatment by the police officers were dismissed by the investigating authorities, essentially on the basis of the statements by those same police officers denying any wrongdoing. Their statements, which were changed over the course of the inquiry – and the investigators’ decisions based on them – were full of unexplained inconsistencies (for example, the applicant supposedly had injuries on his face, yet there were no injuries on the applicant at the time of his arrest; and the fact that the police officers interviewed the applicant after his arrest, yet they denied having participated in any actions involving him – see paragraphs 19, 23, 27 and 28 above). This did not prevent the domestic courts from relying on the investigators’ conclusions in dismissing the applicant’s allegations as unconvincing in the judgment in the criminal case against him – (see paragraph 21 above) or from considering the investigators’ findings lawful and well-founded, on the applicant’s appeal against the refusal to bring criminal proceedings, without any thorough assessment of his allegations or of the evidence supporting them (see paragraph 24 above). No explanation as to how the applicant’s injuries had arisen was offered by the investigating authority in its most recent refusal (see paragraph 31 above). 40. The investigating authorities based their findings on the results of the pre-investigation inquiry, which is the initial stage in dealing with a criminal complaint under Russian law and should normally be followed by the opening of a criminal case and 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 mere carrying-out of a pre‐investigation inquiry under Article 144 of the Code of Criminal Procedure of the Russian Federation is insufficient if the authorities are to comply with the standards established under Article 3 of the Convention for an effective investigation into credible allegations of ill-treatment in police custody. It is incumbent on the authorities to institute criminal proceedings and to conduct a proper criminal investigation in which the whole range of investigative measures may be carried out, including confrontations, identification parades or the questioning of witnesses (ibid., §§ 132-37). 41. In view of the foregoing, the Court finds that the authorities failed to carry out an effective investigation into the applicant’s credible allegations of police ill‐treatment, as required by Article 3 of the Convention. 42. Accordingly, there has been a violation of Article 3 of the Convention under its procedural limb. 43. Given that the Government’s denial of the State’s responsibility for the applicants’ injuries was based on the outcome of the cursory domestic pre‐investigation inquiry, which 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 produce evidence capable of casting doubt on the applicant’s account of events in so far as it is supported by medical evidence, and which it therefore finds established (see Olisov and Others v. Russia, nos. 10825/09 and 2 others, §§ 83-85, 2 May 2017, and Ksenz and Others v. Russia, nos. 45044/06 and 5 others, §§ 102-04, 12 December 2017). 44. The Court considers that the applicant’s ill-treatment by the police officers, notably repeated blows with a hard blunt object (see paragraph 26 above), amounted to inhuman and degrading treatment. 45. There has accordingly been a violation of Article 3 of the Convention also under its substantive limb. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
46. The applicant complained that he had no effective domestic remedies in relation to his ill-treatment by the police, as the authorities had failed to carry out an effective investigation into his complaints, which meant that there was no prospect of receiving compensation. He relied on Article 13 of the Convention, 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.”
47. The Government contested that argument. 48. The Court notes that this complaint is linked to the issue raised under the procedural limb of Article 3 of the Convention and must therefore likewise be declared admissible. 49. Having regard to the finding of a violation of Article 3 under its procedural limb on account of the respondent State’s failure to carry out an effective investigation, the Court considers that it is not necessary to examine this complaint separately under Article 13. 50. Lastly, the applicant complained that he had been unlawfully detained during the time between his actual arrest on 2 December 2006 and his formal arrest on 3 December 2006, in breach of Article 5 § 1 of the Convention, the relevant parts of which read as follows:
“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 ...”
51. The Government submitted that the applicant had failed to exhaust domestic remedies as he had not complained about his unlawful detention to a prosecutor or to a court. 52. The Court notes that the applicant complained to the prosecutor’s office that he had been apprehended by the police officers on 2 December 2006 (see paragraph 18 above). Furthermore, the police officers’ statements received during the inquiry left no doubt that they had arrested the applicant on suspicion of rape on 2 December 2006 (see paragraphs 19, 23, 27 and 28 above). The authorities’ decisions, however, passed over that point in silence. The fact remains that the authorities were made aware, by way of the criminal‐law remedy, that the applicant had been deprived of his liberty on 2 December 2006 while his formal arrest had been carried out on 3 December 2006 (see Golubyatnikov and Zhuchkov v. Russia, nos. 44822/06 and 49869/06, § 76, 9 October 2018). 53. The Court further notes that the Leninskiy District Court held in its judgment in the criminal proceedings against the applicant that his prison sentence should start running from 2 December 2006 (see paragraph 21 above). In so far as the Government can be understood as suggesting that the applicant could have sought damages for his unrecorded detention, the Court reiterates that where lawfulness of detention is concerned, an action for damages against the State is not a remedy to exhaust because the right to have the lawfulness of detention examined by a court is different from the right to obtain compensation for any deprivation of liberty incompatible with Article 5 of the Convention (see Ivan Kuzmin v. Russia, no. 30271/03, § 79, 25 November 2010, and Fortalnov and Others v. Russia, nos. 7077/06 and 12 others, § 66, 26 June 2018). 54. Thus, the Government’s objections should be dismissed. 55. 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. 56. Having regard to the Leninskiy District Court’s judgment, mentioned above, the Court finds that the applicant was unlawfully detained during the time between his actual arrest after 2 p.m. on 2 December 2006 (see paragraph 21 above) and his formal arrest at 4.55 p.m. on 3 December 2006 (see paragraph 9 above). 57. There has accordingly been a violation of Article 5 § 1 of the Convention. 58. 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.”
59. The applicant stated that he would leave the determination of the amount of just satisfaction in respect of non-pecuniary damage to the Court’s discretion. 60. The Government submitted that any award should be made in accordance with the Court’s case-law. 61. The Court awards the applicant 34,000 euros in respect of non‐pecuniary damage, plus any tax that may be chargeable. 62. 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,
(a) that the respondent State is to pay the applicant, within three months, in respect of non-pecuniary damage, EUR 34,000 (thirty four thousand euros), plus any tax that may be chargeable, 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. Done in English, and notified in writing on 16 March 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Olga Chernishova Darian PavliDeputy RegistrarPresident