I correctly predicted that there was a violation of human rights in BATRAKOV v. RUSSIA.
Information
- Judgment date: 2021-05-11
- Communication date: 2016-09-29
- Application number(s): 9519/10
- Country: RUS
- Relevant ECHR article(s): 3
- 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 6 - Right to a fair trial (Article 6 - Criminal proceedings
Article 6-1 - Fair hearing) - Result: Violation SEE FINAL JUDGMENT
JURI Prediction
- Probability: 0.663633
- Prediction: Violation
Consistent
Legend
Communication text used for prediction
1.
The applicant, Mr Maksim Dmitriyevich Batrakov, is a Russian national who was born on 12 March 1990 and lives in Ulyanovsk.
He is represented before the Court by Mrs Ye.V.
Gorash, a lawyer practising in Ulyanovsk.
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 28 August 2008 a criminal case was opened concerning the physical assault of a man on 25 August 2008, which caused serious damage to his health.
At around 2.30 p.m. on 28 August 2008 the applicant (who was eighteen years old at the time) and K. were arrested in a car near the applicant’s home by two police officers on suspicion of the crime.
They took the applicant out of the car, pushed him to the ground and handcuffed him.
They then started asking him what had happened on 25 to 27 August 2008.
The applicant told them that he did not understand what they were talking about.
Police officer Ya.
then punched him in the head.
The applicant and K. were driven to the Zheleznodorozhniy police station in Ulyanovsk (Железнодорожный РОВД г. Ульяновска).
4.
The applicant was held at the police station from 3 p.m. to 11 p.m.
He and K. were taken to a room on the fourth floor, where police officers covered their heads with sweatshirts and pushed them to the floor.
K. was then taken to a different room.
According to the applicant, police officers L. and K. locked the room from the inside and started threatening him and physically assaulted him by whipping him mainly in the legs, supposedly with a cord.
The police officers forced the applicant to give a “statement of surrender and confession” concerning the physical assault, which he allegedly had not committed.
Under duress the applicant signed the statement, which was dictated to him by police officer L. No lawyer was present.
5.
At around 9 p.m. the applicant was taken to see investigator Ye., who questioned him as a witness in the presence of a lawyer, Ya.
The applicant provided similar statements to the investigator as in his “statement of surrender and confession”, as one of the police officers had been in the room.
No physical force was used on the applicant at that time.
According to the applicant, the police officer warned him that if he told the investigator about any pressure having been exerted on him, he would continue to be physically assaulted.
6.
At around 10.30 p.m. the applicant’s mother – who had found out about her son’s arrest from a neighbour – arrived at the police station and waited for her son in the corridor.
She was then led to the room where he was being held.
She asked him whether he had been beaten up.
According to the applicant, he denied that he had been ill-treated to his mother, because the investigator and police officers were in the room.
At around 11 p.m. he and his mother left the police station.
They saw K., who had been released an hour earlier.
He told them that he had been beaten up by police officers.
7.
At home the applicant told his mother about his ill-treatment at the police station in detail.
According to the applicant’s mother’s statements to the investigator from the Zheleznodorozhniy inter‐district investigation unit dated 12 September 2008, at home she saw numerous bruises on the applicant’s legs and handcuff marks on his wrists.
The applicant told her about his arrest, being forced to the ground and handcuffed, having a sweatshirt placed over his head and being driven to the police station.
According to her statements, two police officers physically assaulted the applicant during his interview at the police station by whipping his legs and back.
Under threat and duress the applicant confessed to the crime which he allegedly had not committed.
B.
The applicant’s injuries 8.
At 10.45 a.m. on 29 August 2008 the applicant went to a traumatology unit for medical help.
He was diagnosed with contusions of both hips, the lower left leg and the lower spine.
He complained of pain in those parts of his body and explained that on 28 August 2008 he had been physically assaulted by police officers at a police station.
9.
According to report no.
5327/432 of a forensic medical examination carried out at 1.50 p.m. on 29 August 2008 at his request, the applicant complained of pain in his legs.
He also explained to the expert that at around 2 p.m. on 28 August 2008 he had been arrested by police officers near his home and driven to a police station.
At around 10 p.m. he was released.
During his arrest one of the police officers punched him in the top of the head.
At the police station he was handcuffed with his hands behind his back and pushed to the floor face down.
The police officers physically assaulted him by striking his legs and lower back with an object, which he could not see.
The applicant had (i) two bruises on the back of his lower right hip; (ii) a bruise on the back of the middle of his left hip; (iii) two abrasions on the front of the upper part of his lower left leg; and (iv) a contusion and a bruise on the front and inside of the middle of his left hip.
According to the expert, the applicant’s injuries had been caused by a hard, blunt object, possibly on 28 August 2008, in the circumstances described by the applicant.
The injuries had not caused him any “health damage”.
10.
On 23 April 2009 the same expert carried out another forensic medical examination in respect of the applicant’s injuries (report no.
1864) on the basis of the order of an investigator dated 5 February 2009 and the applicant’s medical records of 29 August 2008.
The expert came to similar conclusions as in his initial report no.
5327/432.
He also specified that the applicant’s injuries had been caused by no less than six blows with a hard, blunt object.
C. Operational-search activity of the Federal Security Service 11.
On 2 September 2008 police officers K. and Ya.
carried out a search at the applicant’s flat within the framework of criminal proceedings brought against him in respect of the assault.
Police officer Ya.
offered his “help” to have the applicant’s prosecution discontinued in exchange for money.
The applicant’s mother reported the incident to the Ulyanovsk regional department of the Federal Security Service (FSB).
As a result of the operative measures that followed Ya.’s conversations were recorded and on 12 September 2008 he was arrested while receiving money from the applicant’s mother.
On 26 January 2009 he was convicted of attempted fraud and sentenced to two years’ imprisonment.
12.
Following the applicant’s mother’s complaint the FSB carried out an operational-search activity aimed at establishing which police officers had undertaken unlawful actions in respect of the applicant.
On 29 September 2008 the head of the regional department of the FSB found that, according to data received as a result of the operative measure, on 28 August 2008 at the Zheleznodorozhniy police station in Ulyanovsk police officers L. and K. had beaten up the applicant in order to force him to confess to the crime.
13.
On 29 September 2008 the results of the operative measure were communicated to the head of the Ulyanovsk regional investigative committee.
These indicated that the elements of a crime under Article 286 of the Criminal Code (abuse of powers) had been present in respect of the actions of police officers L. and K. D. Ulyanovsk investigative committee’s refusals to open a criminal case against police officers 14.
On 30 August 2008 the applicant lodged a complaint against the police officers with the Zheleznodorozhniy district prosecutor’s office of Ulyanovsk, alleging unlawful deprivation of liberty and ill-treatment.
His mother lodged a similar complaint.
15.
On the dates specified below, and in accordance with Article 24 § 1 (2) of the Code of Criminal Procedure, investigators at the Zheleznodorozhniy investigation unit issued nine refusals to initiate criminal proceedings against the police officers, because none of the elements of a crime under Article 286 of the Criminal Code (abuse of powers) were present in respect of their actions.
The refusals were systematically overruled by the higher authority within the investigative committee as unsubstantiated and/or unlawful, and the investigation authorities were ordered to carry out additional inquiries: Refusal no.
issued on: overruled on: (i) 22 September 2008 27 October 2008 (ii) 7 November 2008 30 November 2008 (iii) 10 December 2008 [unspecified date] (iv) 3 January 2009 30 January 2009 (v) 9 February 2009 13 March 2009 (vi) 23 March 2009 1 April 2009 (vii) 11 April 2009 20 April 2009 (viii) 24 April 2009 5 May 2009 (ix) 15 May 2009 [no information] 16.
On 29 April 2009 the deputy head of the Ulyanovsk regional prosecutor’s office found that the pre-investigation inquiry had been stalled and incomplete and had failed to establish the important circumstances of the alleged ill‐treatment, and that there had been no follow-up to the operative activity carried out by the FSB (see paragraph 13 above).
The prosecutor’s office had previously asked that the investigative committee correct the deficiencies in the pre-investigation inquiry, but the requests were not followed up.
The prosecutor’s office again sent an official request to the head of the Ulyanovsk regional investigative committee, asking that the violations be eliminated without delay and those responsible be subjected to disciplinary proceedings.
17.
The police officers denied subjecting the applicant to any ill‐treatment.
In the most recent refusal to open a criminal case against the police officers dated 15 May 2009, the investigator found that the applicant’s allegations of ill-treatment had not been confirmed.
The quantity, mechanism and location of the applicant’s injuries, as alleged by him, were not consistent with the results of his forensic medical examination.
After examining the applicant’s medical records, explanations by the police officers and his lawyer Ya.
– who had not seen any injuries on his client during his questioning as a witness on the evening of 28 August 2008 shortly after the alleged ill‐treatment – the investigator concluded that the applicant’s injuries (as recorded on 29 August 2008) were unrelated to the investigative measures carried out in relation to the applicant on the earlier date.
The investigator also considered that the applicant’s allegations of ill-treatment had been made to avoid criminal liability for the crime which had been committed, and noted that his mother had found out about the alleged ill-treatment from him.
The investigator therefore concluded that none of the elements of the alleged crime had been present in respect of the police officers’ actions.
E. Criminal proceedings against the applicant 18.
On 25 March 2009 the Zheleznodorozhniy District Court of Ulyanovsk convicted the applicant and sentenced him to five and a half years’ imprisonment.
19.
On 6 May 2009 the Ulyanovsk Regional Court quashed that judgment on appeal and remitted the case to the first-instance court for fresh examination.
20.
On 9 July 2009 the first-instance court re-examined the applicant’s criminal case and convicted and sentenced him to five and a half years’ imprisonment.
21.
On 19 August 2009 the Ulyanovsk Regional Court partly changed that judgment on appeal in the part concerning the civil claim against the applicant.
22.
At trial the applicant denied his guilt.
He alleged that he had given his “statement of surrender and confession” of 28 August 2008 as a result of being physically assaulted by the police officers and requested that the statement be excluded from evidence.
The courts nevertheless used it as evidence in the criminal case against him.
The courts concluded that his allegations of police ill-treatment had not been confirmed, briefly noting that he had not complained of any ill-treatment shortly after he had given his “statement of surrender and confession” at the police station, and that the police officers had denied using any violence against him.
23.
The applicant also complained that incriminating statements against him given by witnesses K. (on 11 December 2008) and V. (on 23 December 2008) had been used as evidence, even though they had been extracted under duress.
The police officers allegedly demanded that they incriminate the applicant, gave electric shocks to K. through wires applied to his fingers, and gave electric shocks to V. in the area of the genitals while he was handcuffed.
V.’s ill-treatment was confirmed by a medical record, issued by the traumatology unit of Ulyanovsk Town Hospital on 23 December 2008, according to which V. was diagnosed with a burn on his genitals shortly after being questioned by police.
24.
The applicant requested that those statements be excluded from evidence.
At trial witnesses K. and V. changed their statements, explaining that they had given the statements incriminating the applicant as a result of the ill-treatment by police officers.
The trial court found that the use of violence against those witnesses had not been confirmed.
In arriving at that conclusion, it relied on the statements provided by the police officers, who denied any ill‐treatment of K. and V. They also found that K. and V. had been the applicant’s long-term friends, and had subsequently changed their statements to help him avoid criminal liability for the crime committed.
25.
The applicant provided the Court with detailed statements from K. and V. to the domestic investigation authorities concerning their ill‐treatment by the police officers with the purpose of extracting their incriminating statements of 11 and 23 December 2008 against the applicant, as well as V.’s medical record.
COMPLAINTS The applicant complains under Article 3 of the Convention that he was subjected to ill-treatment by police officers and that the State failed to conduct an effective investigation into the incident.
He also complains under Article 13 of the Convention, in conjunction with Article 3, that he had no effective domestic remedy.
The applicant also complains under Article 6 of the Convention that the criminal proceedings against him were unfair on account of the use of evidence obtained as a result of his ill-treatment and the duress applied to witnesses K. and V.
Judgment
THIRD SECTIONCASE OF BATRAKOV v. RUSSIA
(Application no. 9519/10)
JUDGMENT
STRASBOURG
11 May 2021
This judgment is final but it may be subject to editorial revision. In the case of Batrakov 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. 9519/10) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Maksim Dmitriyevich Batrakov (“the applicant”), on 1 February 2010;
the decision to give notice to the Russian Government (“the Government”) of the complaints concerning the applicant’s alleged ill‐treatment by the police, the lack of an effective investigation into his complaint and the use of his self-incriminating statements at his trial, and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 30 March 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns the applicant’s alleged ill-treatment by police, the lack of an effective investigation into his complaint and the use at his trial of his confession statements. THE FACTS
2. The applicant was born in 1990 and lives in Ulyanovsk. The applicant was represented by Ms Ye.V. Gorash, a lawyer practising in Ulyanovsk. 3. The Government were represented initially by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then 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 28 August 2008 as a result of operational-search activities of the Zheleznodorozhniy district police department of Ulyanovsk the applicant was identified as a person who might have committed a physical assault. The applicant was apprehended and taken to the Zheleznodorozhniy police station in Ulyanovsk. 6. According to the applicant, during his arrest, which was carried out at approximately 2.30 p.m. on 28 August 2008 near his home, he was pushed to the ground, handcuffed and punched in the head. The applicant provided the following account of events at the police station. Two police officers covered his head with a sweatshirt, pushed him to the floor and delivered blows to his lumbar region and legs, at some point with a heavy object such as a thick rope. His beatings lasted for about two hours, after which the applicant wrote a statement of “surrender and confession” as was dictated to him by the officers. He then gave self-incriminating statements to an investigator, as one of the police officers (who had threatened him with more violence if he complained) had been in the room. For the same reason he denied that he had been ill-treated to his mother who had been allowed to see him in the room where he had been interviewed. His mother asked him to take off his clothes. He did not display any injuries on the upper part of his body. He did not take off his pants. At around 11 p.m. he and his mother left the police station and he told her about his ill-treatment. 7. According to a record drawn up by the police, at 6 p.m. on 28 August 2008 the applicant gave a statement of “surrender and confession” in respect of a physical assault. 8. According to a record drawn up by an investigator from the investigation unit of the Zheleznodorozhniy district police department, from 8.30 p.m. to 9.30 p.m. on 28 August 2008 at the Zheleznodorozhniy police station the applicant was questioned as a witness in the criminal case concerning a physical assault in the presence of a lawyer, N.Ya. 9. According to the applicant’s mother’s statements of 12 September 2008 to an investigator from the investigative committee for the Zheleznodorozhniy district at the Ulyanovsk regional prosecutor’s office (“Zheleznodorozhniy district investigative committee”), after returning home from the police station on 28 August 2008 she saw numerous bruises on the applicant’s legs and handcuff marks on his wrists. 10. At 10.45 a.m. on 29 August 2008 the applicant was examined at a traumatology unit. He was diagnosed with contusions of both hips, the lower left leg and the lumber region. He complained of pain in those areas and explained that on 28 August 2008 he had been physically assaulted by police officers at the Zheleznodorozhniy police station. 11. According to a report on the applicant’s forensic medical examination carried out at 1.50 p.m. on 29 August 2008 at his request, the applicant complained of pain in his legs. He described his ill-treatment by police officers on 28 August 2008 (blows to the parietal region, the lumbar region and legs, and handcuffing behind the back). The applicant had two bruises on the back of his right hip; a bruise on the back of his left hip; two abrasions on the lower left leg; a bruise on the front and inside of the left hip; hyperaemia of both wrists; and painfulness of the parietal region. The expert found that the applicant’s injuries had been caused by a hard, blunt object, possibly on 28 August 2008, in the circumstances described by him. 12. On 23 April 2009 the same expert carried out another forensic medical examination in respect of the applicant’s injuries, this time on the basis of an investigator’s order of 5 February 2009 and the applicant’s medical records of 29 August 2008. The expert came to conclusions similar to those in his initial report. He also specified that the applicant’s injuries had been caused by no less than six blows, possibly as a result of being kicked and receiving blows with an object such as a thick rope, as alleged by the applicant. 13. Following the applicant’s mother’s complaint, on 29 September 2008 the head of the Federal Security Service for the Ulyanovsk region found that their operative activity had indicated that on 28 August 2008 at the Zheleznodorozhniy police station two police officers (whose identity had been established) had beaten up the applicant in order to force him to confess to the crime, and that the elements of a crime under Article 286 of the Criminal Code (abuse of powers) had been present in their actions. That finding was communicated to the head of the Ulyanovsk regional investigative committee. 14. On 30 August 2008 the applicant’s mother lodged a complaint against the police officers with the Zheleznodorozhniy district prosecutor’s office of Ulyanovsk, alleging the applicant’s ill-treatment. On 3 September 2008 the applicant lodged a similar complaint. 15. Investigators from the Zheleznodorozhniy district investigative committee carried out a pre-investigation inquiry into the applicant’s alleged ill-treatment by police. On the dates specified below, and in accordance with Article 24 § 1 (2) of the Code of Criminal Procedure, they issued refusals to initiate criminal proceedings against the police officers, because none of the elements of a crime under Article 286 of the Criminal Code were present in respect of their actions. The refusals were systematically overruled by the higher authority within the investigative committee as unsubstantiated and/or unlawful, and the investigation authorities were ordered to carry out additional inquiries:
Refusal no. issued on:
overruled on:
(i)
22 September 2008
27 October 2008
(ii)
7 November 2008
30 November 2008
(iii)
10 December 2008
24 December 2008
(iv)
3 January 2009
30 January 2009
(v)
9 February 2009
13 March 2009
(vi)
23 March 2009
1 April 2009
(vii)
11 April 2009
20 April 2009
(viii)
24 April 2009
5 May 2009
(ix)
15 May 2009
16. On 29 April 2009 the Ulyanovsk regional prosecutor’s office found that the pre-investigation inquiry had been stalled and incomplete and had failed to establish the important circumstances of the applicant’s alleged ill‐treatment, and that there had been no follow-up to the operative activity carried out by the FSB (see paragraph 13 above) and to the previous requests of the prosecutor’s office to correct the flaws of the inquiry. The prosecutor’s office again sent an official request to the head of the Ulyanovsk regional investigative committee, requesting that the violations be eliminated without delay and those responsible be subjected to disciplinary proceedings. 17. The police officers, interviewed during the inquiry, denied subjecting the applicant to any ill-treatment. An investigator stated that on 28 August 2008 she had been assigned a criminal case into a physical assault. Four police officers had carried out operational-search activities at her request and established the applicant’s involvement in the crime. The applicant had given a statement of surrender and confession, after which she had invited a lawyer on duty, N.Ya., and questioned him. During his questioning she had not received any complaints from the applicant against the police officers and had not noticed any injuries on him. In her presence the applicant’s mother had lifted the applicant’s t-shirt. He had not displayed any injuries. Lawyer N.Ya. stated that she had not seen any injuries on the applicant on 28 August 2008. 18. Following the applicant’s complaint and ensuing disciplinary proceedings against N.Ya., on 4 May 2009 the Council of the Ulyanovsk Regional Bar Association found that N.Ya. had provided the applicant with poor legal assistance during his interrogation by an investigator on 28 August 2008, failing to hold a meeting with the applicant and to provide him with legal advice before his interrogation. Moreover, she had breached the law and the Attorney Professional Ethics Code by giving statements to the investigative committee about the circumstances of the applicant’s interrogation. Those statements had served as one of the grounds for the decision not to open a criminal case against the police officers whose actions the applicant had challenged. They had also contributed to the negative assessment of the applicant’s revocation of his previous self‐incriminating statements. The Council held that the lawyer should be reprimanded. 19. In the most recent refusal to open a criminal case against the police officers dated 15 May 2009 an investigator found that the applicant’s allegations of ill-treatment had not been confirmed, and that his injuries (as recorded on 29 August 2008) were unrelated to the police officers’ activities and investigative measures carried out in relation to the applicant. 20. On 9 July 2009 the Zheleznodorozhniy District Court of Ulyanovsk convicted the applicant of a physical assault and sentenced him to five and a half years’ imprisonment. 21. At trial the applicant denied his guilt and gave statements about his alleged ill-treatment by police officers on 28 August 2008, as a result of which he had written his statement of “surrender and confession” as had been dictated by them. His lawyer argued that the record of the applicant’s statement should be excluded as inadmissible evidence. The court, however, relied on that statement in finding the applicant guilty. Having heard the police officers denying any violence against the applicant, it concluded that his allegations of police ill-treatment had not been confirmed. 22. The applicant’s lawyer also argued that statements against the applicant by two witnesses (on 11 and 23 December 2008) had been extracted under duress by police officers (who had allegedly given electric shocks to one witness through wires attached to his fingers, and to the other witness in the area of the genitals while he was handcuffed) and were therefore inadmissible evidence. The lawyer referred to a medical record, issued by the traumatology unit of Ulyanovsk Town Hospital on 23 December 2008, according to which the witness was diagnosed with a burn on his genitals shortly after being questioned by the police. 23. The court examined statements by the two witnesses that at the preliminary investigation they had incriminated the applicant as a result of their ill-treatment by police officers. One of those witnesses also testified about witnessing the violence suffered by the applicant at the police station on 28 August 2008. Relying on the statements by the police officers denying any wrongdoing, the court found that the use of violence against the witnesses had not been confirmed. 24. The applicant reiterated the arguments about the inadmissibility of his statement of “surrender and confession” and the witness statements in his appeal against the judgment of the trial court. 25. On 19 August 2009 the Ulyanovsk Regional Court partly amended the judgment on appeal in the part concerning a civil claim against the applicant. It upheld the judgment in the remaining part fully endorsing the trial court’s findings in respect of the applicant’s arguments. THE LAW
26. The applicant complained that he had been subjected to ill-treatment by police officers and that the State had failed to conduct an effective investigation into his complaint. 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.”
27. The Government contested the applicant’s claim, relying on the results of the inquiry carried out by the domestic authorities. They stated that the applicant’s allegations of his ill-treatment by police had not been convincing and had not been supported by evidence. Therefore there had been no need to open a criminal case into his complaint. 28. The Government noted that the applicant had not availed himself of a court appeal against the refusals to institute criminal proceedings. 29. The applicant stated that a court appeal would not have led to the opening of a criminal case against the police officers which could only be ordered by an investigator. A court had no authority to order an investigator to open a criminal case, or to carry out specific activities. A court appeal could only lead to the annulment of a refusal to open a criminal case, which the investigating authority had done on its own many times. 30. The Court notes that between October 2008 and May 2009 the refusals to open a criminal case into the applicant’s alleged ill‐treatment were set aside eight times. In these circumstances, the Court is not convinced that an appeal to a court, which could only have had the same effect, would have offered the applicant any redress. It considers, therefore, that an appeal in the particular circumstances of the present case would have been devoid of any purpose (see, mutatis mutandis, Nechto v. Russia, no. 24893/05, §§ 80-82, 24 January 2012, and Devyatkin v. Russia, no. 40384/06, § 30, 24 October 2017). 31. 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. 32. After a period of time spent in police custody on 28 August 2008 the applicant was found to have sustained bodily injuries confirmed by medical evidence. The injuries are consistent with the applicant’s allegations, in particular of being handcuffed and delivered blows to the legs by kicking and using a heavy object such as a thick rope. His allegations are supported by the conclusions of the forensic medical expert (see paragraphs 11-12 above) and the witness statements (see paragraphs 9 and 23 above). 33. The above factors are sufficient to give rise to a presumption in favour of the applicant’s account of events and to satisfy the Court that the applicant’s allegations of ill-treatment in police custody were credible. 34. The Court further observes that the applicant’s allegations of his injuries having been the result of the ill-treatment by police officers were dismissed by the investigating authority on the basis of the denial of the applicant’s ill-treatment by the police officers. It offered no explanation in respect of the applicant’s injuries. Its flawed inquiry was criticised by the prosecutor’s office without, however, leading to any improvement (see paragraph 16 above). 35. The investigating authority based its 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 the carrying out of an investigation if the information gathered has disclosed elements of a criminal offence (see Lyapin v. Russia, no. 46956/09, § 129, 24 July 2014). The 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 conduct a proper criminal investigation in which the whole range of investigative measures may be carried out, including the questioning of witnesses, confrontations and identification parades (ibid., §§ 132-37). 36. The Court has no reason to hold otherwise in the present case. It finds that the investigating authority failed to carry out an effective investigation into the applicant’s allegations of police ill-treatment, as required by Article 3 of the Convention. 37. Given that the Government’s denial of the State’s responsibility for the applicant’s injuries was based on the results of the superficial domestic pre-investigation inquiries, which fall 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, 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). 38. Having regard to the severity of the applicant’s treatment and his injuries, the Court finds that the applicant was subjected to inhuman and degrading treatment at the hands of the police (see Gäfgen v. Germany [GC], no. 22978/05, § 89, ECHR 2010). 39. In view of the foregoing, there has been a violation of Article 3 of the Convention under its substantive and procedural limbs. 40. The applicant complained that the criminal proceedings against him had been unfair on account of the use of his statement of “surrender and confession” at his trial. He also complained about the use in evidence of the statements by the witnesses allegedly obtained as a result of duress by the police. He relied on Article 6 of the Convention, which reads in its relevant part as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
41. The Government argued that the statement of “surrender and confession” had not been the sole evidence of the applicant’s guilt which had also been confirmed by other evidence. 42. The Government submitted that the applicant had not lodged a motion for exclusion of his statement of “surrender and confession” from evidence before the trial court, failing to exhaust domestic remedies. 43. The applicant disagreed, noting that he had argued before the trial court and in his appeal against its judgment that his statement of “surrender and confession” should be excluded from evidence. 44. The Court notes that the applicant raised his complaint before the trial and appeal courts. It cannot therefore be said that the national courts were not afforded the opportunity to prevent or redress the alleged violation of the Convention. The Government’s objection should be dismissed. 45. The Court considers 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. 46. The Court reiterates that the admission of confession statements obtained in violation of Article 3 renders the criminal proceedings as a whole automatically unfair, irrespective of the probative value of those statements and irrespective of whether their use was decisive in securing the defendant’s conviction (see Gäfgen [GC], cited above, §§ 166 and 173, and, among many other authorities, Turbylev v. Russia, no. 4722/09, § 90, 6 October 2015). 47. The Court has found that the applicant was subjected to inhuman and degrading treatment in police custody. It observes that the applicant’s confession statements formed part of the evidence adduced against him. The trial court did not find them inadmissible and relied on them when finding him guilty and convicting him. The court had to carry out its own independent assessment of the relevant medical, witness and other evidence with a view to ascertaining whether there were reasons to exclude from evidence those statements, allegedly “tainted” by a violation of Article 3 of the Convention, so as to ensure the fairness of the trial. Instead, it relied on the statements of the police officers who had allegedly ill-treated the applicant. This lack of a careful assessment of the quality of the impugned evidence and the circumstances in which it was obtained was not remedied on appeal. 48. In such circumstances, the Court concludes that, regardless of the impact the applicant’s statements obtained under duress had on the outcome of the criminal proceedings against him, their use in evidence rendered the applicant’s trial unfair. This finding makes it unnecessary to examine the applicant’s other complaints that the use in evidence of the statements of the witnesses had made his trial unfair. 49. The foregoing considerations are sufficient for the Court to conclude that there has been a violation of Article 6 § 1 of the Convention in the present case. 50. Lastly, the applicant complained that there had been no effective investigation into his complaint of police ill-treatment by the authorities which had not opened a criminal case and had not carried out a proper investigation. He relied on Article 13 which reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
51. The Government contested that argument. 52. The Court notes that this complaint is linked to the issue raised under the procedural aspect of Article 3 of the Convention and must therefore likewise be declared admissible. 53. In view of its finding of a violation of Article 3 under its procedural head, the Court does not find it necessary to examine separately, under Article 13 of the Convention, the applicant’s complaint concerning the lack of an effective investigation into his ill‐treatment by police. 54. 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.”
55. The applicant claimed 75,000 euros (EUR) in respect of non‐pecuniary damage, describing the devastating effect his beatings by police officers, his self-incrimination and the policemen’s impunity had had on his life. The applicant claimed EUR 2,500 in respect of costs and expenses for legal assistance provided to him by Ms Gorash in the proceedings before the Court, to be paid directly to her practice’s bank account. 56. The Government stated that Article 41 of the Convention should be applied in accordance with the Court’s case-law. 57. The Court awards the applicant EUR 26,000 in respect of non‐pecuniary damage, plus any tax that may be chargeable. It also awards him the amount claimed in respect of costs and expenses, plus any tax that may be chargeable to the applicant, to be paid into his representative’s bank account as requested by the applicant. 58. 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, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 26,000 (twenty-six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,500 (two thousand and five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid into his representative’s bank account;
(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 11 May 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Olga Chernishova Darian PavliDeputy RegistrarPresident