- Alleged violation of Article 3 of the Convention on account of the alleged ill-treatment
- The applicant complained that on 24 February 2015 he had been beaten by police officers at the detention centre for aliens and that there had been no meaningful domestic investigation into the incident. He relied on Article 3 of the Convention.
- The parties’ submissions
- The Government
- The Government contested that argument. They submitted that, according to the information provided by the administration of the detention centre for aliens, the applicant had not complained of alleged violence or his state of health and that he had not been medically examined since February 2015. There had been no cameras installed on the detention centre’s premises.
- The detention centre for aliens had employed only civilian guards to ensure order on the premises. There had been no information concerning police involvement in the activities of those civilian guards on 24 February 2015.
- Measures were being taken to investigate the beatings of the applicant.
- The applicant
- The applicant emphasised at the outset that the Government had not provided the entire investigation file in connection with the alleged ill-treatment as the Court had requested.
- In support of his allegations the applicant submitted two photos — one picturing him sitting and wearing a striped T-shirt and another showing his back with the T-shirt pulled up so that large purple-red hematomas in the shape of long stripes were visible.
- The applicant pointed out that the investigation had been flawed from the very beginning as the authorities had failed to interview him and to carry out a medical examination after the alleged beatings. Moreover, the applicant had not been informed which organisation had been in charge of the investigation nor had he been notified of any progress thereof.
- The applicant asserted that he had been in a vulnerable position while in the detention centre for aliens and that his complaints about his state of health could have been ignored by its administration.
- Lastly, the applicant invited the Court to shift the burden of proof to the respondent Government and, in the absence of a satisfactory and convincing explanation as to the origins of his injuries obtained while in detention, to find violations of Article 3 of the Convention in its substantive and procedural limbs.
- The Court’s assessment
- The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
(a) Substantive limb of Article 3 of the Convention
- The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. Indeed the prohibition of torture and inhuman or degrading treatment or punishment is a value of civilisation closely bound up with respect for human dignity. Unlike most of the substantive clauses of the Convention, Article 3 makes no provision for exceptions, and no derogation from it is permissible under Article 15 § 2 of the Convention even in the event of a public emergency threatening the life of the nation. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned (see, with further references, Bouyid v. Belgium [GC], no. 23380/09, § 81, 28 September 2015).
- Turning to the circumstances of the present case, the Court notes that it is at dispute between the parties whether the applicant sustained injuries from officers belonging to the special police squad while in the detention centre for aliens. It considers that an issue arises as to the burden of proof in this case and in particular as to whether it should shift from the applicant onto the Government (see El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 154, ECHR 2012).
- The Court reiterates in this connection that allegations of ill-treatment must be supported by appropriate evidence. In assessing evidence, the Court has generally applied the standard of proof «beyond reasonable doubt» (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events at issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons under their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. The burden of proof is then on the Government to provide a satisfactory and convincing explanation by producing evidence establishing facts which cast doubt on the account of events given by the victim (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII). In the absence of such an explanation, the Court can draw inferences which may be unfavourable for the Government (see, among other authorities, El-Masri, cited above, § 152). That is justified by the fact that persons in custody are in a vulnerable position and the authorities are under a duty to protect them (see Bouyid, cited above, § 83).
- The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). However, where allegations are made under Article 3 of the Convention, the Court must apply a particularly thorough scrutiny (see Georgiy Bykov v. Russia, no. 24271/03, § 51, 14 October 2010). In the absence of any findings by the domestic investigation authorities in respect of the alleged proscribed treatment, it thus becomes incumbent on the Court to establish the basic facts of the case at hand.
- Turning to the circumstances of the instant case, the Court notes that it does not have at its disposal any medical certificate confirming the fact that on 24 February 2015 the applicant sustained any injuries. It recognises, however, that it may prove difficult for detainees to obtain evidence of ill-treatment by their warders (see, mutatis mutandis, Labita v. Italy [GC], no. 26772/95, § 125, ECHR 2000-IV). Bearing in mind that the applicant’s lawyers informed the investigation authorities of refusals by the medical staff of the detention centre for aliens to duly record injuries reported by the detainees (see paragraph 24 above), the Court considers it plausible that the applicant experienced difficulties in obtaining a medical certificate attesting to the injuries sustained. Noting that the applicant’s account of the alleged ill-treatment has remained detailed, specific and consistent, the Court is ready to accept the photos submitted by the applicant (see paragraph 69 above) as «appropriate evidence» of his allegations of beatings while in the detention centre for aliens. In view of the above, the Court is satisfied that there is prima facie evidence in favour of the applicant’s version of events and that the burden of proof should accordingly shift to the Government.
- The Government, however, did not comment on the photos submitted by the applicant. Nor did they deny that the applicant had sustained injuries while in the detention centre for aliens. Instead, the Government submitted that the applicant had not sought medical help (see paragraph 65 above). It remains unclear, however, why the applicant was not examined by a medical expert following lodging a complaint (on 26 February 2015) about the ill-treatment (see paragraph 24 above).
- In the absence of any plausible version of the events put forward by the Government, the Court considers that it can draw inferences from the available material and the authorities’ conduct and finds the applicant’s allegations sufficiently convincing and established to the requisite standard of proof (see El-Masri, cited above, § 167).
- The Court will now turn to the Government’s assertion that the detention centre for aliens employed only civilians to maintain order on its premises (see paragraph 66 above). Assuming that no police officers or representatives of any other law-enforcement agency were present in the detention centre on 24 February 2015, the Court cannot accept the implied suggestion of unaccountability on the part of the respondent State for actions of those unnamed civilians. Indeed, it is impossible to conceive in a democratic State that unidentified persons not belonging to any State agency were permitted to freely operate unsupervised in a facility for detention of those deprived of liberty and thus under control of the State without imputability of their actions to the State in question as it would clearly run counter the very idea of the rule of law. The Court thus considers that, irrespective of whether the persons who in the applicant’s submission had beaten him formally belonged to any State agency, their actions are imputable to the respondent State.
- The Court finds, accordingly, that on 24 February 2015 the applicant was beaten by State agents while in the detention centre for aliens.
- There has therefore been a violation of Article 3 of the Convention under its substantive limb.
(b) Procedural limb of Article 3 of the Convention
- The Court reiterates that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 of the Convention at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to «secure to everyone within their jurisdiction the rights and freedoms defined in… [the] Convention», requires by implication that there should be an effective official investigation (see Labita, cited above, § 131).
- An obligation to investigate is not an obligation of result, but of best endeavours: not every investigation should necessarily come to a conclusion which coincides with the applicant’s account of events. However, it should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible (see Mikheyev v. Russia, no. 77617/01, § 107, 26 January 2006).
- The investigation into allegations of ill-treatment must be thorough. That means that the authorities must make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis for their decisions (see Assenov and Others v. Bulgaria, 28 October 1998, §§ 103 et seq., Reports of Judgments and Decisions 1998-VIII). They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness accounts and forensic evidence. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of the applicable standard (see Mikheyev, cited above, § 108).
- The Court emphasises that the Government did not provide any information as to whether a criminal investigation into the applicant’s alleged ill-treatment had been initiated. Instead, they claimed that unspecified measures were being taken to investigate the alleged beatings of the applicant (see paragraph 67 above). The Government did not provide any explanation as to the nature of such measures or the legal framework governing them. The applicant, in his turn, submitted that he had not been informed of any progress in the investigation. Even more strikingly, he claimed that not once had he been interviewed or medically examined by any domestic authority in connection with the alleged ill-treatment (see paragraph 70 above).
- Despite the Government’s failure to provide an account of the measures purportedly taken to investigate the applicant’s beatings while in detention at the hands of State agents, the Court is not precluded from assessing whether the requirements of Article 3 of the Convention in its procedural limb have been met in the present case.
- The Court has previously ruled that in the context of the Russian legal system a «pre-investigation inquiry» alone is not capable of leading to the punishment of those responsible, since the opening of a criminal case and a criminal investigation are prerequisites for bringing charges against the alleged perpetrators which may then be examined by a court. The Court drew strong inferences from the mere fact of the investigative authority’s refusal to open a criminal investigation into credible allegations of serious ill-treatment while in custody, regarding it as indicative of the State’s failure to comply with its obligation under Article 3 of the Convention to carry out an effective investigation (see Lyapin v. Russia, no. 46956/09, §§ 135 — 36, 24 July 2014).
- It follows that, in the absence of a full-fledged criminal investigation opened in connection with credible allegations of ill-treatment, it is not necessary for the Court to examine in detail the measures taken at the national level with a view to identifying specific deficiencies and omissions on the part of the investigative authorities (see, mutatis mutandis, Zelenin v. Russia, no. 21120/07, § 59, 15 January 2015).
- The Court considers, accordingly, that the refusal to open a criminal case into the applicant’s credible allegations of ill-treatment while in the detention centre for aliens amounted to a failure to carry out an effective investigation as required by Article 3 of the Convention.
- The above considerations are sufficient for the Court to conclude that there has been a violation of Article 3 of the Convention under its procedural limb.
III. Alleged violation of Article 5 §§ 1 and 4 of the Convention
- The applicant complained of the fact that his detention in the detention centre for aliens was arbitrary as its time-limits were not foreseeable and that there were no avenues to obtain judicial review of its lawfulness. He relied on Article 5 §§ 1 (f) and 4 of the Convention, which in so far as relevant read as follows:
«1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
- Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.»
- The parties’ submissions
- The Government refrained from making any submissions on the admissibility and merits of this part of the application merely stating that there had been no violations of Article 5 §§ 1 (f) and 4 of the Convention.
- The applicant claimed that his detention, which commenced on 28 January 2015, had been arbitrary and thus unlawful from the outset. In any event, it would have ceased to be lawful once the expulsion proceedings had been suspended. The CAO did not establish any time-limits for detention of persons awaiting administrative removal; the domestic courts had failed to specify any time-limits in their judgments; accordingly, the applicant could not foresee the length of his detention. Noting that his detention had largely exceeded the maximum penalty in the form of deprivation of liberty under the CAO and referring to the case of Azimov v. Russia (no. 67474/11, §§ 172 — 73, 18 April 2013), the applicant claimed that his detention pending expulsion was of a punitive nature rather than of a preventive one. The applicant also noted that the Appeal Court had failed to analyse his allegations of the breach of his right to liberty. Lastly, the applicant reiterated that he had had no possibility to initiate judicial review of the lawfulness of his prolonged detention as required by Article 5 § 4 of the Convention.
- The Court’s assessment
- The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
- The Court will consider firstly whether there was a possibility of effective supervision of unlawful or arbitrary detention and secondly whether the applicant’s detention was compatible with the requirements of Article 5 § 1 (f) of the Convention (see, with further references, Kim v. Russia, no. 44260/13, § 38, 17 July 2014).
(a) Compliance with Article 5 § 4 of the Convention
- The Court reiterates that the purpose of Article 5 § 4 of the Convention is to ensure for individuals who are arrested and detained the right to judicial supervision of the lawfulness of the measure to which they are thereby subjected. A remedy must be made available during a person’s detention to allow that person to obtain a speedy judicial review of the legality of the detention, capable of leading, where appropriate, to his or her release. The existence of the remedy required by Article 5 § 4 of the Convention must be sufficiently certain, not only in theory but also in practice, failing which it will lack the accessibility and effectiveness required for the purposes of that provision (see, with further references, Azimov, cited above, § 150).
- The Court has already found a violation of Article 5 § 4 of the Convention in a number of judgments concerning Russia on account of the absence of any domestic legal provision which could have allowed an applicant to initiate a judicial review of his detention pending expulsion (see Azimov, cited above, § 153; Kim, cited above, §§ 39 — 43; Rakhimov, cited above, §§ 148 — 50; Eshonkulov v. Russia, no. 68900/13, §§ 57 — 60, 15 January 2015; and L.M. and Others v. Russia, nos. 40081/14, 40088/14 and 40127/14, §§ 140 — 42, 15 October 2015). In the Kim case, the Government acknowledged a violation of Article 5 § 4 of the Convention and, having regard to the recurrent nature of the violation, the Court directed that the Russian authorities should «secure in its domestic legal order a mechanism which allows individuals to institute proceedings for the examination of the lawfulness of their detention pending removal in the light of the developments in the removal proceedings» (see Kim, cited above, § 71).
- Similarly, the applicant in the present case throughout the term of his detention pending expulsion (administrative removal) did not have at his disposal any procedure for a judicial review of its lawfulness.
- There has therefore been a violation of Article 5 § 4 of the Convention.
(b) Compliance with Article 5 § 1 of the Convention
- It is well established in the Court’s case-law on Article 5 § 1 of the Convention that all deprivation of liberty must not only be based on one of the exceptions listed in sub-paragraphs (a) to (f) but must also be «lawful». Where the «lawfulness» of detention is at issue, including the question whether «a procedure prescribed by law» has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. This primarily requires any arrest or detention to have a legal basis in domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention. The «quality of the law» implies that where a national law authorises a deprivation of liberty, it must be sufficiently accessible, precise and foreseeable in its application to avoid all risk of arbitrariness. The standard of «lawfulness» set by the Convention requires that all law be sufficiently precise to allow the person — if need be, with appropriate advice — to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see, with further references, Del Prada v. Spain [GC], no. 42750/09, § 125, ECHR 2013).
- Turning to the circumstances of the present case, the Court notes that the applicant was detained on 27 January 2015 pending enforcement of the District Court’s decision ordering his expulsion (administrative removal) from Russia, and remains in detention to the present day.
- The Court points out that the Government have not invoked any of the sub-paragraphs of Article 5 § 1 of the Convention as grounds capable of justifying the applicant’s detention (see paragraph 94 above). It observes, however, that it has found in a number of cases against Russia concerning detention of foreign nationals pending their administrative removal that such removal amounted to a form of «deportation» in terms of Article 5 § 1 (f) of the Convention, and that consequently that provision was applicable (see Azimov, cited above, § 160; Kim, cited above, § 48; Egamberdiyev v. Russia, no. 34742/13, § 58, 26 June 2014; Rakhimov, cited above, § 124; and Khalikov v. Russia, no. 66373/13, § 69, 26 February 2015).
- Despite the present case’s obvious similarities to those cited above, owing to the Government’s lack of comment on the applicant’s allegations, the Court does not deem it appropriate to assess compatibility of the applicant’s detention pending expulsion with the standards set by Article 5 § 1 (f) of the Convention. Given that the thrust of the applicant’s complaint is that Russian domestic law, in particular, the Code of Administrative Offences, contains no provisions governing the length of detention pending administrative removal, and that as a result of such lacunae the applicant has found himself in a situation lacking legal certainty (see paragraph 95 above), the Court will limit its analysis to establishing whether the applicant’s detention has been «lawful» within the meaning of Article 5 § 1 of the Convention.
- The Court points out that, when ordering the applicant’s detention pending expulsion, the District Court did not set any time-limits for it (see paragraph 12 above). Likewise, the Appeal Court remained silent on the matter (see paragraph 16 above). Article 27.19 of the CAO devoted to the placement of persons awaiting administrative removal in detention centres for aliens does not provide for any time-limits of their detention (see paragraph 32 above). The only guidance available to the applicant to envision a maximum length of his detention pending expulsion would be Article 31.9 § 1 of the Code of Administrative Offences, which stipulates that an expulsion decision remains enforceable within two years from the date of its entry into force (see paragraph 34 above). This provision would imply that after the expiry of the two-year term a person detained pending enforcement of an administrative removal order should be released. It may happen in the present case; however, the possible implications of Article 31.9 § 1 of the CAO for the applicant’s detention are a matter of interpretation, and the rule limiting the duration of detention of an illegal alien is not set out clearly in law. It is also unclear what will happen after the expiry of the two-year time-limit, since the applicant will clearly remain in an irregular situation in terms of immigration law and will again be liable to expulsion and, consequently, to detention on those grounds (see Azimov, cited above, § 171; Akram Karimov v. Russia, no. 62892/12, § 191, 28 May 2014; Egamberdiyev, cited above, § 92; and Khalikov, cited above, § 73).
- The Court’s findings regarding the lack of judicial review of the lawfulness of the applicant’s continuing detention (see paragraph 100 above) are of utmost relevance in connection with the alleged lack of legal certainty of the applicant’s detention as it follows that the Russian legal system did not provide for a procedure capable of preventing the risk of arbitrary detention pending expulsion (see Kim, cited above, § 53).
- The Court notes the recent developments in domestic law introduced by the new Code of Administrative Procedure in force as of 15 September 2015 (see paragraph 35 above). However, these amendments have so far been of no bearing on the applicant’s detention. Accordingly, the Court is not called upon to assess them in abstracto.
- Accordingly, the Court considers that in the circumstances of the instant case the domestic law governing the applicant’s detention has not met the «foreseeability» requirement implicit in Article 5 § 1 of the Convention.
- Furthermore, the Court observes that the maximum penalty in the form of deprivation of liberty for an administrative offence under the Code of Administrative Offences is thirty days (see paragraph 28 above) and that detention with a view to expulsion should not be punitive in nature and also should be accompanied by appropriate safeguards, as established by the Russian Constitutional Court (see paragraph 36 above). In this case the «preventive» measure, in terms of its gravity, was much more serious than the «punitive» one, which is not normal (see Azimov, cited above, § 172; Kim, cited above, § 55; Akram Karimov, cited above, § 192; and Egamberdiyev, cited above, § 63).
- In view of the above considerations, the Court finds that the deprivation of liberty in the instant case was not «lawful» within the meaning of Article 5 § 1 of the Convention, for lack of a legal basis of the requisite quality to satisfy the general principle of legal certainty.
- There has, therefore, been a violation of Article 5 § 1 of the Convention.
- Rule 39 of the Rules of Court
- The Court recalls that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or (c) the Panel of the Grand Chamber rejects any request to refer under Article 43 of the Convention.
- It considers that the indication made to the Government under Rule 39 of the Rules of Court (see paragraph 4 above) must continue in force until the present judgment becomes final or until the Court takes a further decision in this connection (see operative part).
- Application of Article 41 of the Convention
- 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.»
- The applicant submitted that he had experienced distress and frustration because of the risk of expulsion to Kyrgyzstan and his irregular detention and thus sustained non-pecuniary damage. He asked the Court to establish the appropriate amount of compensation to be awarded.
- The Government suggested that, were the Court to find any violation of the Convention in the applicant’s case, such a finding in itself would constitute sufficient just satisfaction.
- The Court observes that no breach of Article 3 of the Convention on account of the applicant’s expulsion has yet occurred in the present case. However, it has found that the decision to expel the applicant would, if implemented, give rise to a violation of that provision. The Court considers that its finding regarding this part of the application in itself amounts to adequate just satisfaction for the purposes of Article 41 of the Convention. Nonetheless, considering the above findings of violations of Article 3 of the Convention under its substantive and procedural limbs on account of the applicant’s ill-treatment and of Article 5 §§ 1 and 4 of the Convention, the Court, making an assessment on an equitable basis, awards the applicant 26,000 euros (EUR) in respect of non-pecuniary damage, plus any tax that may be chargeable on this amount.
- Costs and expenses
- Relying on his representative’s detailed timesheets, the applicant also claimed EUR 5,300 for the costs and expenses incurred at the national level and before the Court.
- The Government contended that the representative’s fees were not shown to have been actually paid or incurred.
- According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.
- As regards the legal fees, regard being had to the documents in its possession and the above criteria (see Fadeyeva v. Russia, no. 55723/00, § 147, ECHR 2005-IV), the Court considers it reasonable to award the sum of EUR 5,300, plus any tax which may be chargeable to the applicant on that amount, to be paid to his representative’s bank account.
- Default interest
- 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,
- Declares the application admissible;
- Holds that the applicant’s expulsion or involuntary removal to Kyrgyzstan would amount to a violation of Article 3 of the Convention;
- Holds that there has been a violation of Article 3 of the Convention under its substantive limb on account of the applicant’s ill-treatment;
- Holds that there has been a violation of Article 3 of the Convention under its procedural limb on account of the absence of an effective investigation into the applicant’s allegations of ill-treatment;
- Holds that there has been a violation of Article 5 § 4 of the Convention;
- Holds that there has been a violation of Article 5 § 1 of the Convention;
- Decides to continue to indicate to the Government under Rule 39 of the Rules of Court that it is desirable in the interests of the proper conduct of the proceedings not to expel or otherwise remove the applicant from Russia to Kyrgyzstan or any other country until such time as the present judgment becomes final or until further order;
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the responded 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 5,300 (five thousand three hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(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 26 January 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Luis GUERRA President
Stephen PHILLIPS Registrar