I correctly predicted that there was a violation of human rights in LYUTAREVICH v. RUSSIA.

Information

  • Judgment date: 2022-03-22
  • Communication date: 2017-03-13
  • Application number(s): 65395/12
  • Country:   RUS
  • Relevant ECHR article(s): 10, 10-1
  • Conclusion:
    Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment
    Inhuman treatment) (Substantive aspect)
    Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural 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: 0.579153
  • Prediction: Violation
  • Consistent


Legend

 In line with the court's judgment
 In opposition to the court's judgment
Darker color: higher probability
: In line with the court's judgment  
: In opposition to the court's judgment

Communication text used for prediction

The applicant, Mr Valeriy Nikolayevich Lyutarevich, is a Russian national, who was born in 1958 and lives in the Ivanovo Region.
He is represented before the Court by Mr K. Terekhov, a lawyer practising in Moscow.
A.
The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows.
Unhappy about allegations of fraud that marred the elections to the Russian legislature conducted in December 2011, the applicant stencilled a text on the rear windshield of his car that read “United Russia is a party of thieves and crooks”.
United Russia was a political party that won the elections, taking 238 out of 450 seats in the lower house of Russian Parliament, and the phrase had been coined by the investigative blogger Mr Navalnyy who had extensively reported on inordinate and unaccounted-for wealth of the party leadership.
[1] On 17 January 2012 the head of the local branch of the United Russia party spotted the text and complained to the police.
On 14 March 2012 the police of the Rodniki town in the Ivanovo Region filed a report on an administrative offence under Article 5.12 § 1 of the Code of Administrative Offences.
According to the report, the text that the applicant stencilled on his car was a campaigning material (агитационный материал) because at that time the chairman of the United Russia party Mr Putin was standing for the election of the President of Russia.
The material was in breach of electoral legislation since it did not contain information about its circulation, date of issue, the full details of the person who had produced it and the full details of the person or entity who had commissioned its production and paid for it.
On 21 March 2012 the Justice of the Peace of Circuit no.
2 in the Rodniki district found the applicant guilty as charged and fined him 1,000 Russian roubles (RUB).
The Justice endorsed the contents of the police report, without addressing the applicant’s argument that the text was an expression of his personal opinion.
On 10 April 2012 the Rodnikovskiy District Court in the Ivanovo Region upheld the conviction on appeal.
It held that any “activity contributing to shaping the positive or negative attitude of voters to a political party or its candidates” amounted to electoral campaigning.
B.
Relevant domestic law Article 5.12 of the Code of Administrative Offences provides that “production or distribution of printed, audio-visual or other campaigning materials during the preparation or holding of an election in breach of the requirements of electoral legislation” shall be punishable with a fine of between RUB 1,000 and 5,000.
Section 55 of the Russian President Election Act (Law no.
19-FZ of 10 January 2003) reads: “1.
Candidates may freely produce and distribute electoral printed, audio-visual and other campaigning materials in accordance with the procedure established in the legislation of the Russian Federation ... 2.
All distributed electoral printed, audio-visual and other campaigning materials must specify the identity, legal address and taxpayers’ number of the organisation (or the full name and the address of the person) who produced that material, the identity of the organisation (or the full name of the person) who commissioned them, as well as their circulation, date of issue and an indication that they were paid for from the electoral fund.” Section 48 of the Electoral Rights Act (Law no.
67-FZ of 12 June 2002) gives the following guidance on electoral campaigning: “1.
Russian citizens and non-governmental organisations have a right to engage in lawful electoral campaigning by lawful means ... 2.
The following activities during an election campaign should be held to amount to electoral campaigning: (a) calls to vote for a candidate or candidates, a list or lists of candidates, or against him (her, them, it); (b) stating preference for one of candidates or electoral bloc, in particular by specifying the name of the candidate (list of candidates or electoral bloc) for which the voter will vote ... (c) description of possible consequences of the election or defeat of a specific candidate ... (d) distribution of materials with manifest prevalence of information about one candidate, a group of candidates, or an electoral bloc, in combination with positive or negative comments; (e) distribution of information about a candidate’s activities unrelated to his professional occupation or service duties; (f) active participation in shaping of a positive or negative attitude of voters toward a candidate, the electoral bloc of that candidate, or a list of candidates.” In Ruling no.
15-P of 30 October 2003, the Constitutional Court commented on section 48 § 2 of the Electoral Rights Act and expressed the view that “activities which do not seek to push voters towards voting for candidates or against them or, in other words, which do not pursue the objectively confirmed goal to obtain a specific outcome of the election, do not amount to electoral campaigning”.
COMPLAINT The applicant complains under Article 10 of the Convention about a violation of his right to freedom of speech.

Judgment

THIRD SECTION
CASE OF RAGIMOVY v. RUSSIA
(Application no.
54611/18)

JUDGMENT
STRASBOURG
22 March 2022

This judgment is final but it may be subject to editorial revision.
In the case of Ragimovy v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Darian Pavli, President, Peeter Roosma, Mikhail Lobov, judges,and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no.
54611/18) 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 15 November 2018 by two Russian nationals, Mr Murad Firuddinovich Ragimov, born in 1994 and detained in Novo-Tyube, the Republic of Dagestan, and Mr Firuddin Dursun ogly Ragimov, born in 1957 and living in Krasnodar (“the applicants”), who were represented by Ms Y. Vanslova, Mr I. Kalyapin and Ms O. Sadovskaya, lawyers with the Committee against Torture, a non‐governmental organisation based in Nizhniy Novgorod;
the decision to give notice of the complaints concerning Article 3 of the Convention in respect of both applicants and concerning Article 5 and Article 6 §§ 1 and 2 of the Convention in respect of the first applicant to the Russian Government (“the Government”), initially represented by Mr M. Galperin, former Representative of the Russian Federation to the European Court of Human Rights, and later by his successor in that office, Mr M. Vinogradov, and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 1 March 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT-MATTER OF THE CASE
1.
The second applicant is the father of the first applicant. 2. The applicants complained about ill-treatment during arrest and lack of effective investigation in this regard, under Article 3 of the Convention; about the first applicant’s unrecorded detention under Article 5 § 1 and that his conviction had been based on allegedly planted evidence under Article 6 § 1. Finally, the first applicant complained under Article 6 § 2 about a breach of the presumption of innocence. The applicants’ alleged ill-treatment on 30 august 2016 and related inquiry
3.
On 30 August 2016 at 6 a.m. about fifteen armed officers came to the rented flat in Moscow, where the applicants stayed with their family members, Ms A.G., the first applicant’s mother and the second applicant’s wife, and their other relatives. 4. The first applicant provided detailed account of his beating and ill‐treatment, which lasted for about half an hour and included punching and kicking him in different parts of his body. The officers also handcuffed him and applied a taser to him. At some point an officer strangled him with a plastic bag and stuck a knife in his right foot. 5. It appears that during the operation some items of furniture fell to the floor and a mirror broke (see paragraph 18 below). 6. According to the second applicant, two officers came to his room, kicked and punched him in his head fifteen or twenty times, applied a taser to him twice and strangled him with a blanket. According to him, his ill‐treatment lasted about thirty minutes. 7. At around 7.30 a.m. two medical assistants provided assistance to Ms A.G., as requested, and then left. At around 8.30 a.m. two dog trainers arrived with dogs, inspected the flat and then left. 8. At 10 a.m., an investigator, in the presence of two attesting witnesses, carried out a body search of the first applicant and found a foil package in his pocket. Another officer found two plastic cans with drugs in his bag. 9. According to the applicants, the drugs discovered had been planted by the officers during the operation. The second applicant allegedly saw an officer putting the foil package in the pocket of the first applicant’s pants before his body search. 10. At around 1 p.m. the first applicant was taken to a police department in Moscow. 11. From the police department the first applicant was taken to a city hospital twice. 12. According to the forensic report of 7 February 2017, on 30 and 31 August 2016 the first applicant was diagnosed with abrasions and bruises to his head, face, chest and wrists inflicted as a result of at least seven impacts with blunt hard objects, a hematoma on the right side of his head inflicted in a similar manner, and an incised wound to his foot. The expert indicated that other injuries had not been confirmed. 13. On 30 August and 8 September 2016 the second applicant applied for medical assistance. According to the forensic reports of 7 February 2017 and 27 April 2018, the second applicant was diagnosed with abrasions to his shoulders, chest, stomach area, right knee joint inflicted as a result of at least five impacts with blunt hard objects, and a hematoma on the left side of his head. The expert did not confirm other injuries. 14. On 31 August 2016 at 2.40 p.m. the first applicant’s arrest was recorded. 15. On 31 August 2016 the second applicant and the applicants’ relatives lodged a complaint with the prosecutor’s office about the ill-treatment of the applicants. 16. On 9 November and 13 December 2016 an investigator refused to open a criminal a case in respect of the first applicant’s alleged ill-treatment. On 13 February 2017 an investigator refused to open a criminal case in respect of both applicants’ ill-treatment. 17. Between 14 November April 2016 and 16 June 2018 the investigators issued at least ten decisions not to open a criminal investigation that were subsequently set aside by their superiors. 18. On 24 August 2018 an investigator again refused to open a criminal investigation. The officers explained that on 30 August 2016 they had applied force and handcuffs against the first applicant, since he had offered active resistance. In particular, when an officer had tried to enter the flat, the first applicant had tried to push him out, punching and kicking his shield. In the hallway the first applicant had pushed down a cupboard with a mirror, trying to barricade the entry, the mirror had broken and its fragments scattered over the floor. The officers suggested that the first applicant could have been injured by one of those fragments. They further explained that they had not applied force against the second applicant. The investigator concluded that the applicants’ injuries had been sustained as a result of lawful use of force by the officers during the operation, since they had offered active resistance. It does not appear that the investigator made an assessment of the proportionality of the use of force by the officers. 19. It appears from the Government’s submissions that several other decisions not to open a criminal investigation followed, and were then set aside as being incomplete, the latest such decision dated 27 July 2020. The first applicant’s trial
20.
On 18 January 2018 the Tushinsky District Court of Moscow convicted the applicant of possession of illegal drugs on a large scale. 21. The District Court examined the statements of two attesting witnesses who participated in the inspection of the flat as of 7 a.m. and in the applicant’s body search at 10.05 a.m. They described the circumstances in which the drugs had been discovered. Their statements did not confirm the applicants’ allegations in respect of planted evidence (see paragraph 9 above). 22. The District Court questioned dog trainers, who refuted the applicants’ version about planted evidence. The District Court further questioned the expert, who on 30 August 2016 between 7.30 and 10 a.m. participated in the inspection of the flat, who also did not confirm the applicants’ allegations in respect of planted evidence. 23. The District Court questioned the officers who had participated in the operation. Their statements were similar to those given in the course of the inquiry into the applicants’ alleged ill-treatment (see paragraph 18 above). They further submitted that they had not seen any evidence planted and confirmed use of handcuffs upon the second applicant. 24. Relying on the witnesses’ statements (see paragraphs 21, 22 and 23 above), the District Court dismissed the applicants’ allegations in respect of planted evidence. 25. According to the conviction, the period of imprisonment was to be calculated from 30 August 2016, the date of the applicant’s initial arrest. 26. The applicant’s lawyer appealed. He submitted, among other things, that the investigating authorities had not verified all the versions of the crime, in particular, that the drugs discovered could belong to other family members or that they could have been planted. He also complained about alleged bias of the judge of the District Court. In particular, in her decision of 6 July 2017 permitting a visit to the first applicant in remand, the judge of the District Court stated that the first applicant was held there for committing a crime. 27. On 15 May 2018 the Moscow City Court upheld the conviction. The City Court dismissed the applicant’s allegations in respect of planted evidence, as refuted by the witnesses’ statements. The City Court found that the lawyer’s motions alleging the judge’s bias had been lawfully dismissed. THE COURT’S ASSESSMENT
28.
In so far as the Government argued that the applicants had failed to apply to the courts in respect of their alleged ill-treatment, the Court observes that between 2016 and 2020 the investigators issued numerous decisions not to open a criminal investigation that were subsequently set aside for being incomplete. Given a considerable lapse of time and the noted defects of the decisions to dispense with an investigation, an appeal to a court could only have the same effect and would be devoid of any purpose (see Chumakov v. Russia, no. 41794/04, § 91, 24 April 2012). Accordingly, the Court rejects this objection. 29. As regards the Government’s objection about non-exhaustion of domestic remedies in respect of the first applicant’s unrecorded detention, the Court notes that the applicant raised this complaint during his trial and the District Court calculated the applicant’s imprisonment term from 30 August 2016, as claimed by him (see paragraph 25 above). Accordingly, the Court rejects this objection. 30. It is not necessary to examine whether the applicant exhausted the domestic remedies in respect of his complaint under Article 6 § 2, since this complaint is in any event inadmissible for the reasons indicated below. 31. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 32. The Court is satisfied that both applicants made a credible claim of ill‐treatment by State officials, supported by detailed statements and medical evidence. The domestic authorities were therefore under an obligation to carry out an effective investigation into those allegations. 33. The investigating authorities confined themselves to carry out a pre‐investigation inquiry and refused to open a criminal investigation. The Court reiterates that a pre‐investigation inquiry is incompatible with the standards established under Article 3 of the Convention for an effective investigation into credible allegations of ill‐treatment by State officials (see Lyapin v. Russia, no. 46956/09, §§ 125‐40, 24 July 2014). 34. When concluding that the applicants had sustained injuries as a result of lawful use of force by the officials during the operation, the investigator did not make any assessment whether the use of force had been indispensable and not excessive, in particular, in view of the fact that the force had been applied within the framework of planned operation by a group of armed and trained officers (see paragraph 18 above). The investigator’s conclusion concerning the origin of the second applicant’s injuries was not based on any evidence and was inconsistent with the officials’ statements that no force had been applied against him (see paragraph 18 above). 35. The above considerations are sufficient to conclude that no effective investigation, as required by Article 3 of the Convention, has been carried out into the applicants’ allegations of ill-treatment. It follows that the explanations provided as a result of the domestic inquiries cannot be considered satisfactory or convincing, capable of casting doubt on the applicants’ accounts of events. 36. As regards the first applicant’s allegation that his foot had been stabbed with a knife (see paragraph 4 above), the Court rejects it as unsupported. Given that the parties did not contest that a mirror had broken (see paragraph 5 above), the Court accepts that the wound may have been accidentally sustained during the operation. At the same time, in the light of the applicants’ injuries confirmed by medical evidence in the case file (see paragraphs 12 and 13 above), the Court finds that the officials had used excessive force during the operation and had subjected the applicants to inhuman and degrading treatment (see Ksenz and Others v. Russia, nos. 45044/06 and 5 others, §§ 102‐04, 12 December 2017). 37. There has accordingly been a violation of Article 3 of the Convention under its both limbs. 38. The first applicant’s complaint under Article 5 § 1 of the Convention is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 39. The Court notes that it is not contested between the parties that the first applicant was apprehended during the operation on 30 August 2016 (see paragraph 10 above). However, his arrest was recorded only the following day (see paragraph 14 above). The Court finds the first applicant’s unrecorded detention between 30 and 31 August 2016 incompatible with the requirement of lawfulness of Article 5 § 1 of the Convention (see Fartushin v. Russia, no. 38887/09, §§ 49-54, 8 October 2015). Accordingly, there has been a violation of this provision. 40. As regards the first applicant’s complaint under Article 6 § 1 of the Convention about allegedly planted evidence, the Court notes that those allegations were not confirmed by evidence. In particular, the attesting witnesses, dog trainers and an expert witness confirmed the manner in which that evidence had been obtained and refuted the applicant’s allegations (see paragraphs 21 and 22 above). The applicant, assisted by lawyers, was able to challenge that evidence and to present his version of events. The domestic courts verified the applicant’s allegations in this regard and found them unsubstantiated. Having examined the safeguards which surrounded the evaluation of reliability of the evidence concerned, the Court finds that the proceedings in the first applicant’s case, considered as a whole, were not contrary to the requirements of a fair trial (see Bykov v. Russia [GC], no. 4378/02, §§ 95 and 104, 10 March 2009). It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 41. As regards the first applicant’s complaint under Article 6 § 2, the Court finds that the wording of the impugned decision of the District Court did not amount to a pronouncement on the applicant’s guilt. Consequently, the first applicant’s right to the presumption of innocence was not adversely affected. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 42. The first applicant also raised other complaints under various Convention provisions. The Court considers that, in the light of all the material in its possession, these complaints do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention and must be rejected in accordance with Article 35 § 4 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION
43.
The applicants claimed compensation for non-pecuniary damage in the amount to be determined in accordance with the Court’s case-law. The Court awards each of the applicants EUR 26,000 (twenty-six thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable to them. 44. The applicants did not submit a claim for costs and expenses. Accordingly, the Court considers that there is no call to award any sum on that account. 45. The Court further 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 each of the applicants, within three months, EUR 26,000 (twenty-six 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, in respect of non‐pecuniary damage;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above 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 22 March 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Olga Chernishova Darian Pavli Deputy Registrar President

THIRD SECTION
CASE OF RAGIMOVY v. RUSSIA
(Application no.
54611/18)

JUDGMENT
STRASBOURG
22 March 2022

This judgment is final but it may be subject to editorial revision.
In the case of Ragimovy v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Darian Pavli, President, Peeter Roosma, Mikhail Lobov, judges,and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no.
54611/18) 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 15 November 2018 by two Russian nationals, Mr Murad Firuddinovich Ragimov, born in 1994 and detained in Novo-Tyube, the Republic of Dagestan, and Mr Firuddin Dursun ogly Ragimov, born in 1957 and living in Krasnodar (“the applicants”), who were represented by Ms Y. Vanslova, Mr I. Kalyapin and Ms O. Sadovskaya, lawyers with the Committee against Torture, a non‐governmental organisation based in Nizhniy Novgorod;
the decision to give notice of the complaints concerning Article 3 of the Convention in respect of both applicants and concerning Article 5 and Article 6 §§ 1 and 2 of the Convention in respect of the first applicant to the Russian Government (“the Government”), initially represented by Mr M. Galperin, former Representative of the Russian Federation to the European Court of Human Rights, and later by his successor in that office, Mr M. Vinogradov, and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 1 March 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT-MATTER OF THE CASE
1.
The second applicant is the father of the first applicant. 2. The applicants complained about ill-treatment during arrest and lack of effective investigation in this regard, under Article 3 of the Convention; about the first applicant’s unrecorded detention under Article 5 § 1 and that his conviction had been based on allegedly planted evidence under Article 6 § 1. Finally, the first applicant complained under Article 6 § 2 about a breach of the presumption of innocence. The applicants’ alleged ill-treatment on 30 august 2016 and related inquiry
3.
On 30 August 2016 at 6 a.m. about fifteen armed officers came to the rented flat in Moscow, where the applicants stayed with their family members, Ms A.G., the first applicant’s mother and the second applicant’s wife, and their other relatives. 4. The first applicant provided detailed account of his beating and ill‐treatment, which lasted for about half an hour and included punching and kicking him in different parts of his body. The officers also handcuffed him and applied a taser to him. At some point an officer strangled him with a plastic bag and stuck a knife in his right foot. 5. It appears that during the operation some items of furniture fell to the floor and a mirror broke (see paragraph 18 below). 6. According to the second applicant, two officers came to his room, kicked and punched him in his head fifteen or twenty times, applied a taser to him twice and strangled him with a blanket. According to him, his ill‐treatment lasted about thirty minutes. 7. At around 7.30 a.m. two medical assistants provided assistance to Ms A.G., as requested, and then left. At around 8.30 a.m. two dog trainers arrived with dogs, inspected the flat and then left. 8. At 10 a.m., an investigator, in the presence of two attesting witnesses, carried out a body search of the first applicant and found a foil package in his pocket. Another officer found two plastic cans with drugs in his bag. 9. According to the applicants, the drugs discovered had been planted by the officers during the operation. The second applicant allegedly saw an officer putting the foil package in the pocket of the first applicant’s pants before his body search. 10. At around 1 p.m. the first applicant was taken to a police department in Moscow. 11. From the police department the first applicant was taken to a city hospital twice. 12. According to the forensic report of 7 February 2017, on 30 and 31 August 2016 the first applicant was diagnosed with abrasions and bruises to his head, face, chest and wrists inflicted as a result of at least seven impacts with blunt hard objects, a hematoma on the right side of his head inflicted in a similar manner, and an incised wound to his foot. The expert indicated that other injuries had not been confirmed. 13. On 30 August and 8 September 2016 the second applicant applied for medical assistance. According to the forensic reports of 7 February 2017 and 27 April 2018, the second applicant was diagnosed with abrasions to his shoulders, chest, stomach area, right knee joint inflicted as a result of at least five impacts with blunt hard objects, and a hematoma on the left side of his head. The expert did not confirm other injuries. 14. On 31 August 2016 at 2.40 p.m. the first applicant’s arrest was recorded. 15. On 31 August 2016 the second applicant and the applicants’ relatives lodged a complaint with the prosecutor’s office about the ill-treatment of the applicants. 16. On 9 November and 13 December 2016 an investigator refused to open a criminal a case in respect of the first applicant’s alleged ill-treatment. On 13 February 2017 an investigator refused to open a criminal case in respect of both applicants’ ill-treatment. 17. Between 14 November April 2016 and 16 June 2018 the investigators issued at least ten decisions not to open a criminal investigation that were subsequently set aside by their superiors. 18. On 24 August 2018 an investigator again refused to open a criminal investigation. The officers explained that on 30 August 2016 they had applied force and handcuffs against the first applicant, since he had offered active resistance. In particular, when an officer had tried to enter the flat, the first applicant had tried to push him out, punching and kicking his shield. In the hallway the first applicant had pushed down a cupboard with a mirror, trying to barricade the entry, the mirror had broken and its fragments scattered over the floor. The officers suggested that the first applicant could have been injured by one of those fragments. They further explained that they had not applied force against the second applicant. The investigator concluded that the applicants’ injuries had been sustained as a result of lawful use of force by the officers during the operation, since they had offered active resistance. It does not appear that the investigator made an assessment of the proportionality of the use of force by the officers. 19. It appears from the Government’s submissions that several other decisions not to open a criminal investigation followed, and were then set aside as being incomplete, the latest such decision dated 27 July 2020. The first applicant’s trial
20.
On 18 January 2018 the Tushinsky District Court of Moscow convicted the applicant of possession of illegal drugs on a large scale. 21. The District Court examined the statements of two attesting witnesses who participated in the inspection of the flat as of 7 a.m. and in the applicant’s body search at 10.05 a.m. They described the circumstances in which the drugs had been discovered. Their statements did not confirm the applicants’ allegations in respect of planted evidence (see paragraph 9 above). 22. The District Court questioned dog trainers, who refuted the applicants’ version about planted evidence. The District Court further questioned the expert, who on 30 August 2016 between 7.30 and 10 a.m. participated in the inspection of the flat, who also did not confirm the applicants’ allegations in respect of planted evidence. 23. The District Court questioned the officers who had participated in the operation. Their statements were similar to those given in the course of the inquiry into the applicants’ alleged ill-treatment (see paragraph 18 above). They further submitted that they had not seen any evidence planted and confirmed use of handcuffs upon the second applicant. 24. Relying on the witnesses’ statements (see paragraphs 21, 22 and 23 above), the District Court dismissed the applicants’ allegations in respect of planted evidence. 25. According to the conviction, the period of imprisonment was to be calculated from 30 August 2016, the date of the applicant’s initial arrest. 26. The applicant’s lawyer appealed. He submitted, among other things, that the investigating authorities had not verified all the versions of the crime, in particular, that the drugs discovered could belong to other family members or that they could have been planted. He also complained about alleged bias of the judge of the District Court. In particular, in her decision of 6 July 2017 permitting a visit to the first applicant in remand, the judge of the District Court stated that the first applicant was held there for committing a crime. 27. On 15 May 2018 the Moscow City Court upheld the conviction. The City Court dismissed the applicant’s allegations in respect of planted evidence, as refuted by the witnesses’ statements. The City Court found that the lawyer’s motions alleging the judge’s bias had been lawfully dismissed. THE COURT’S ASSESSMENT
28.
In so far as the Government argued that the applicants had failed to apply to the courts in respect of their alleged ill-treatment, the Court observes that between 2016 and 2020 the investigators issued numerous decisions not to open a criminal investigation that were subsequently set aside for being incomplete. Given a considerable lapse of time and the noted defects of the decisions to dispense with an investigation, an appeal to a court could only have the same effect and would be devoid of any purpose (see Chumakov v. Russia, no. 41794/04, § 91, 24 April 2012). Accordingly, the Court rejects this objection. 29. As regards the Government’s objection about non-exhaustion of domestic remedies in respect of the first applicant’s unrecorded detention, the Court notes that the applicant raised this complaint during his trial and the District Court calculated the applicant’s imprisonment term from 30 August 2016, as claimed by him (see paragraph 25 above). Accordingly, the Court rejects this objection. 30. It is not necessary to examine whether the applicant exhausted the domestic remedies in respect of his complaint under Article 6 § 2, since this complaint is in any event inadmissible for the reasons indicated below. 31. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 32. The Court is satisfied that both applicants made a credible claim of ill‐treatment by State officials, supported by detailed statements and medical evidence. The domestic authorities were therefore under an obligation to carry out an effective investigation into those allegations. 33. The investigating authorities confined themselves to carry out a pre‐investigation inquiry and refused to open a criminal investigation. The Court reiterates that a pre‐investigation inquiry is incompatible with the standards established under Article 3 of the Convention for an effective investigation into credible allegations of ill‐treatment by State officials (see Lyapin v. Russia, no. 46956/09, §§ 125‐40, 24 July 2014). 34. When concluding that the applicants had sustained injuries as a result of lawful use of force by the officials during the operation, the investigator did not make any assessment whether the use of force had been indispensable and not excessive, in particular, in view of the fact that the force had been applied within the framework of planned operation by a group of armed and trained officers (see paragraph 18 above). The investigator’s conclusion concerning the origin of the second applicant’s injuries was not based on any evidence and was inconsistent with the officials’ statements that no force had been applied against him (see paragraph 18 above). 35. The above considerations are sufficient to conclude that no effective investigation, as required by Article 3 of the Convention, has been carried out into the applicants’ allegations of ill-treatment. It follows that the explanations provided as a result of the domestic inquiries cannot be considered satisfactory or convincing, capable of casting doubt on the applicants’ accounts of events. 36. As regards the first applicant’s allegation that his foot had been stabbed with a knife (see paragraph 4 above), the Court rejects it as unsupported. Given that the parties did not contest that a mirror had broken (see paragraph 5 above), the Court accepts that the wound may have been accidentally sustained during the operation. At the same time, in the light of the applicants’ injuries confirmed by medical evidence in the case file (see paragraphs 12 and 13 above), the Court finds that the officials had used excessive force during the operation and had subjected the applicants to inhuman and degrading treatment (see Ksenz and Others v. Russia, nos. 45044/06 and 5 others, §§ 102‐04, 12 December 2017). 37. There has accordingly been a violation of Article 3 of the Convention under its both limbs. 38. The first applicant’s complaint under Article 5 § 1 of the Convention is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 39. The Court notes that it is not contested between the parties that the first applicant was apprehended during the operation on 30 August 2016 (see paragraph 10 above). However, his arrest was recorded only the following day (see paragraph 14 above). The Court finds the first applicant’s unrecorded detention between 30 and 31 August 2016 incompatible with the requirement of lawfulness of Article 5 § 1 of the Convention (see Fartushin v. Russia, no. 38887/09, §§ 49-54, 8 October 2015). Accordingly, there has been a violation of this provision. 40. As regards the first applicant’s complaint under Article 6 § 1 of the Convention about allegedly planted evidence, the Court notes that those allegations were not confirmed by evidence. In particular, the attesting witnesses, dog trainers and an expert witness confirmed the manner in which that evidence had been obtained and refuted the applicant’s allegations (see paragraphs 21 and 22 above). The applicant, assisted by lawyers, was able to challenge that evidence and to present his version of events. The domestic courts verified the applicant’s allegations in this regard and found them unsubstantiated. Having examined the safeguards which surrounded the evaluation of reliability of the evidence concerned, the Court finds that the proceedings in the first applicant’s case, considered as a whole, were not contrary to the requirements of a fair trial (see Bykov v. Russia [GC], no. 4378/02, §§ 95 and 104, 10 March 2009). It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 41. As regards the first applicant’s complaint under Article 6 § 2, the Court finds that the wording of the impugned decision of the District Court did not amount to a pronouncement on the applicant’s guilt. Consequently, the first applicant’s right to the presumption of innocence was not adversely affected. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 42. The first applicant also raised other complaints under various Convention provisions. The Court considers that, in the light of all the material in its possession, these complaints do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention and must be rejected in accordance with Article 35 § 4 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION
43.
The applicants claimed compensation for non-pecuniary damage in the amount to be determined in accordance with the Court’s case-law. The Court awards each of the applicants EUR 26,000 (twenty-six thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable to them. 44. The applicants did not submit a claim for costs and expenses. Accordingly, the Court considers that there is no call to award any sum on that account. 45. The Court further 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 each of the applicants, within three months, EUR 26,000 (twenty-six 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, in respect of non‐pecuniary damage;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above 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 22 March 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Olga Chernishova Darian Pavli Deputy Registrar President