I incorrectly predicted that there's no violation of human rights in STROGOV AND KIRICHENKO v. RUSSIA.

Judgment

THIRD SECTION
CASE OF STROGOV AND KIRICHENKO v. RUSSIA
(Application no. 43387/09)

JUDGMENT
STRASBOURG
24 May 2022

This judgment is final but it may be subject to editorial revision. In the case of Strogov and Kirichenko v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Darian Pavli, President, Andreas Zünd, Mikhail Lobov, judges,and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 43387/09) 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”) on 5 June 2009 by two Russian nationals, Mr Yuriy Yevgenyevich Strogov and Mr Andrey Nikolayevich Kirichenko, born in 1966 and 1978 respectively and living in Moscow (“the applicants”), who were represented by Mr R.S. Karpinskiy, a lawyer practising in Moscow;
the decision to give notice of the complaints concerning unfairness of the proceedings to the Russian Government (“the Government”), represented by Mr M. Vinogradov, Representative of the Russian Federation to the European Court of Human Rights, and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 3 May 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. On 10 December 2008 the Kuntsevskiy District Court of Moscow (“the District Court”) convicted the applicants to nine years and six months and to nine years, respectively, for drug-related crimes. On 23 March 2009 the Moscow City Court upheld the conviction. 2. The conviction was based, inter alia, on the results of the test purchase operation carried out by the officers of the Moscow Department of the Federal Drug Control Service (FSKN) on 2 October 2007, concluded by the applicants’ arrest and search, and on the testimony of a “test purchaser” Mr N.
3. The latter, interviewed as a witness after the applicants’ arrest, testified that the day before he had taken part in a test purchase with a view to expose the applicants as drug dealers and purchased hashish from them. A few days later, Mr N. retracted these statements on the ground that they had been made under duress, complained of ill-treatment by FSKN officers to the Internal Security Directorate of the FSKN. He stated that there had been no test purchase, and that he had been forced to sign the necessary documents and to make incriminating statements against the applicants only after his apprehension and as a result of the beatings by police. Being examined by a doctor, Mr N. was diagnosed with brain concussion and hematoma, and informed the medical service that he had been beaten by the FSKN officers at the moment of the applicants’ arrest. 4. On 27 October 2007 an investigator refused to institute criminal proceedings into the alleged ill-treatment in respect of Mr N. referring to the materials of the criminal case instituted against the applicants. This decision was referred to by the District Court when it rejected the applicants’ motion for declaring the testimony made by Mr N. inadmissible. 5. The applicants were released after having served their sentences. THE COURT’S ASSESSMENT
6. The applicants complain that their conviction was unfair on account of the use of a witness testimony obtained under duress. The Government consider that this complaint is manifestly ill-founded. 7. The general principles applicable to this complaint have been summarized in the Court’s previous judgments (see Urazbayev v. Russia, no. 13128/06, §§ 60-62, 8 October 2019, and Belugin v. Russia, no. 2991/06, §§ 69-71, 26 November 2019). 8. The Court observes that the applicants’ conviction was based, inter alia, on the testimony of Mr N. made shortly after the “test purchase” operation and subsequently retracted. At trial, the applicants sought to exclude his testimony as inadmissible evidence referring to the credible assertions of his ill‐treatment, corroborated by medical documents (paragraph 3 above). Their motion was rejected by the trial and appeal courts without any independent and comprehensive examination of the credible allegations of ill-treatment in respect of the witness. Both courts limited themselves to a mere reference to the refusal to institute criminal proceedings issued in response to the Mr N.’s complaint (paragraph 4 above). The Court has already found violations in similar circumstances (Urazbayev, cited above, §§ 72-73, and Belugin, cited above, § 80). 9. 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 this complaint. Having regard to its case-law on the subject, the Court considers that in the instant case there was a violation of Article 6 § 1 of the Convention. 10. The applicants further complained under Articles 6 § 1 and 6 § 3 (c) of the Convention about planted evidence and lack of access to a legal counsel from the moment of their arrest. Having regard to the facts of the case, the submissions of the parties, and its findings above, the Court considers that it has examined the main legal questions raised in the present application. It thus considers that the applicants’ remaining complaints are admissible but that there is no need to give a separate ruling on them (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014). APPLICATION OF ARTICLE 41 OF THE CONVENTION
11. The applicants claimed 30,000 euros (EUR) and 40,000 EUR respectively for non-pecuniary damage and 7,145 and 7,131 EUR respectively for costs and expenses incurred before the domestic courts and the Court. 12. The Government contested the claims in full. 13. The Court reiterates that the most appropriate form of redress for a violation of Article 6 of the Convention would, in principle, be the reopening of the proceedings, if requested (Öcalan v. Turkey [GC], no. 46221/99, § 210 in fine, ECHR 2005‐IV). At the same time, it notes that the applicants have already served their sentence, and that the reopening of the proceedings would hardly put them in the position in which they would have been had the requirements of Article 6 not been disregarded. Therefore, making its assessment on an equitable basis, the Court awards the applicants 6,000 EUR each in respect of non-pecuniary damage, plus any tax that may be chargeable to them. 14. Having regard to the documents in its possession, the Court considers it reasonable to award 1,500 EUR covering costs under all heads, plus any tax that may be chargeable, to the applicants jointly. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to each applicant;
(ii) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of costs and expenses, to the applicants jointly;
(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 24 May 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Olga Chernishova Darian Pavli Deputy Registrar President

THIRD SECTION
CASE OF STROGOV AND KIRICHENKO v. RUSSIA
(Application no. 43387/09)

JUDGMENT
STRASBOURG
24 May 2022

This judgment is final but it may be subject to editorial revision. In the case of Strogov and Kirichenko v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Darian Pavli, President, Andreas Zünd, Mikhail Lobov, judges,and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 43387/09) 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”) on 5 June 2009 by two Russian nationals, Mr Yuriy Yevgenyevich Strogov and Mr Andrey Nikolayevich Kirichenko, born in 1966 and 1978 respectively and living in Moscow (“the applicants”), who were represented by Mr R.S. Karpinskiy, a lawyer practising in Moscow;
the decision to give notice of the complaints concerning unfairness of the proceedings to the Russian Government (“the Government”), represented by Mr M. Vinogradov, Representative of the Russian Federation to the European Court of Human Rights, and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 3 May 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. On 10 December 2008 the Kuntsevskiy District Court of Moscow (“the District Court”) convicted the applicants to nine years and six months and to nine years, respectively, for drug-related crimes. On 23 March 2009 the Moscow City Court upheld the conviction. 2. The conviction was based, inter alia, on the results of the test purchase operation carried out by the officers of the Moscow Department of the Federal Drug Control Service (FSKN) on 2 October 2007, concluded by the applicants’ arrest and search, and on the testimony of a “test purchaser” Mr N.
3. The latter, interviewed as a witness after the applicants’ arrest, testified that the day before he had taken part in a test purchase with a view to expose the applicants as drug dealers and purchased hashish from them. A few days later, Mr N. retracted these statements on the ground that they had been made under duress, complained of ill-treatment by FSKN officers to the Internal Security Directorate of the FSKN. He stated that there had been no test purchase, and that he had been forced to sign the necessary documents and to make incriminating statements against the applicants only after his apprehension and as a result of the beatings by police. Being examined by a doctor, Mr N. was diagnosed with brain concussion and hematoma, and informed the medical service that he had been beaten by the FSKN officers at the moment of the applicants’ arrest. 4. On 27 October 2007 an investigator refused to institute criminal proceedings into the alleged ill-treatment in respect of Mr N. referring to the materials of the criminal case instituted against the applicants. This decision was referred to by the District Court when it rejected the applicants’ motion for declaring the testimony made by Mr N. inadmissible. 5. The applicants were released after having served their sentences. THE COURT’S ASSESSMENT
6. The applicants complain that their conviction was unfair on account of the use of a witness testimony obtained under duress. The Government consider that this complaint is manifestly ill-founded. 7. The general principles applicable to this complaint have been summarized in the Court’s previous judgments (see Urazbayev v. Russia, no. 13128/06, §§ 60-62, 8 October 2019, and Belugin v. Russia, no. 2991/06, §§ 69-71, 26 November 2019). 8. The Court observes that the applicants’ conviction was based, inter alia, on the testimony of Mr N. made shortly after the “test purchase” operation and subsequently retracted. At trial, the applicants sought to exclude his testimony as inadmissible evidence referring to the credible assertions of his ill‐treatment, corroborated by medical documents (paragraph 3 above). Their motion was rejected by the trial and appeal courts without any independent and comprehensive examination of the credible allegations of ill-treatment in respect of the witness. Both courts limited themselves to a mere reference to the refusal to institute criminal proceedings issued in response to the Mr N.’s complaint (paragraph 4 above). The Court has already found violations in similar circumstances (Urazbayev, cited above, §§ 72-73, and Belugin, cited above, § 80). 9. 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 this complaint. Having regard to its case-law on the subject, the Court considers that in the instant case there was a violation of Article 6 § 1 of the Convention. 10. The applicants further complained under Articles 6 § 1 and 6 § 3 (c) of the Convention about planted evidence and lack of access to a legal counsel from the moment of their arrest. Having regard to the facts of the case, the submissions of the parties, and its findings above, the Court considers that it has examined the main legal questions raised in the present application. It thus considers that the applicants’ remaining complaints are admissible but that there is no need to give a separate ruling on them (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014). APPLICATION OF ARTICLE 41 OF THE CONVENTION
11. The applicants claimed 30,000 euros (EUR) and 40,000 EUR respectively for non-pecuniary damage and 7,145 and 7,131 EUR respectively for costs and expenses incurred before the domestic courts and the Court. 12. The Government contested the claims in full. 13. The Court reiterates that the most appropriate form of redress for a violation of Article 6 of the Convention would, in principle, be the reopening of the proceedings, if requested (Öcalan v. Turkey [GC], no. 46221/99, § 210 in fine, ECHR 2005‐IV). At the same time, it notes that the applicants have already served their sentence, and that the reopening of the proceedings would hardly put them in the position in which they would have been had the requirements of Article 6 not been disregarded. Therefore, making its assessment on an equitable basis, the Court awards the applicants 6,000 EUR each in respect of non-pecuniary damage, plus any tax that may be chargeable to them. 14. Having regard to the documents in its possession, the Court considers it reasonable to award 1,500 EUR covering costs under all heads, plus any tax that may be chargeable, to the applicants jointly. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to each applicant;
(ii) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of costs and expenses, to the applicants jointly;
(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 24 May 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Olga Chernishova Darian Pavli Deputy Registrar President