Постановление ЕСПЧ от 24.05.2016 <Дело Манжос (Manzhos) против России> (жалоба N 64752/09) [англ.]

EUROPEAN COURT OF HUMAN RIGHTS
THIRD SECTION
CASE OF MANZHOS v. RUSSIA
(Application no. 64752/09)
JUDGMENT <*>

(Strasbourg, 24.V.2016)
———————————
<*> This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Manzhos v. Russia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Luis  Guerra, President,
Helena ,
Helen Keller,
Dmitry Dedov,
Branko Lubarda,
Pere Pastor Vilanova,
Alena , judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 3 May 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE

  1. The case originated in an application (no. 64752/09) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms («the Convention») by a Russian national, Mr Pavel Vasilyevich Manzhos («the applicant»), on 20 November 2009.
  2. The applicant, who had been granted legal aid, was represented by Ms O. Gnezdilova, a lawyer practising in Voronezh. The Russian Government («the Government») were represented by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights.
  3. The applicant alleged, in particular, that he had been subjected to ill-treatment in police custody and that the domestic authorities had failed to carry out an effective investigation.
  4. On 11 February 2011 the application was communicated to the Government.

 

THE FACTS

  1. The circumstances of the case

 

  1. The applicant was born in 1956 and lives in Voronezh.
  2. On 7 March 2008 the applicant was arrested and brought to the Tsentralniy district police station, Voronezh (Отдел внутренних дел Центрального района г. Воронежа, «the Tsentralniy OVD») for having employed offensive language in public. He submitted that after the interview the policemen had ill-treated him. In particular, they had handcuffed his hands behind his back, lifted the handcuffs so that he could only stand on his toes, attached the handcuffs to metal bars and administered several blows to the applicant’s face and chest. A few hours later, the applicant was released.
  3. On 8 March 2008 the applicant paid a visit to Voronezh Town Clinical Hospital no. 2 («the town hospital»). A bruise on the left side of his chest was noted during the examination carried out by a doctor there.
  4. On 10 March 2008 the applicant was examined by the Voronezh regional forensic bureau which in addition detected bruises on the applicant’s right eye and right wrist, and scratches on the left of his forehead and both wrists, inflicted by a blunt hard object. The report reflected the timing of these injuries as «one to three days prior», «possibly 7 March 2008, as argued by [the applicant]». It further concluded that the injuries in question did not entail any permanent damage to health or disability.
  5. On 11 March 2008 the applicant visited local polyclinic no. 4, which diagnosed him as having developed periarthritis as a result of trauma of the wrist joints.
  6. On 19 March 2008 the applicant lodged an application with the Tsentralniy district investigation department of the investigative committee at the Voronezh regional prosecutor’s office (Следственный отдел по Центральному району г. Воронежа Следственного управления Следственного комитета при прокуратуре Российской Федерации по Воронежской области, «the district investigation department») requesting that criminal proceedings be instituted against the police officers who had ill-treated him at the Tsentralniy OVD on 7 March 2008.
  7. On 23 March 2008 an investigator of the district investigation department rejected the applicant’s request as unfounded for lack evidence of a crime.
  8. On 24 April 2008 the above decision was set aside by the deputy head of the district investigation department as unfounded, and the case file material was referred for an additional pre-investigation inquiry.
  9. Thereafter the applicant’s request was repeatedly rejected and re-examined. The respective decisions to reject the request were taken by the investigator of the district investigation department on 1 October, 5 November, 11 December 2008 and 13 August 2009 on the basis of:

— the applicant’s statements;

— the forensic medical report of 10 March 2008 (see paragraph 8 above) and the additional forensic medical report of 1 October 2008, which confirmed the conclusions of the initial report;

— the statements of Mr P.M., the applicant’s father, who submitted that on 7 March 2008 at about 9.30 p.m. the applicant’s friends had brought his son from the Tsentralniy OVD, that the applicant had had bruises and had been in shock and had told him that he had been subjected to ill-treatment by the police;

— the statements of Ms T.D., a friend of the applicant, who submitted that she had picked the applicant up from the Tsentralniy OVD on 7 March 2008 at about 10 p.m., that the applicant had had no visible injuries and told her that the police officers had ill-treated him by forcing him into a stress position known as «the swallow» (ласточка);

— the statements of Ms A.M., the applicant’s wife, who submitted that the applicant had arrived home on 7 March 2008 at approximately 11.55 p.m., that he had had abrasions on his wrists and a black eye, and that he had told her that the police had beaten him up, handcuffed his hands behind his back and suspended him from a metal bar by handcuffs;

— the statements of Ms Z.K, the applicant’s mother-in-law, who submitted that she had picked up the applicant’s belongings at the Tsentralniy OVD on 7 March 2008 and had not seen the applicant committing any unlawful acts or police officers applying physical force to the applicant;

— the report by police officer V.V., who submitted that on 7 March 2008 at about 6.10 p.m. he and police officer S.S. had apprehended the applicant for having employed offensive language in public;

— the statements of officers V.V. and S.S. who denied having applied physical force to the applicant;

— the statements of police officer P.A., who submitted that on 7 March 2008 at about 7.00 p.m. the applicant was brought to the Tsentralniy OVD; he had had no visible injuries and had been behaving calmly, and no physical force or measures of restraint had been applied to him;

— the statements of police officers S.Sh. and M.V., who had been on duty on 7 March 2008, who submitted that they had had no information about the applicant’s arrest, and that they had not seen physical force or measures of restraint being applied to any of the persons brought to the Tsentralniy OVD on that date;

— the statements of several persons who had been detained at the Tsentralniy OVD at the same time as the applicant, who submitted that they had not seen or heard that any unlawful measures had been applied to the applicant by the police officers.

  1. All of the above decisions refusing the institution of criminal proceedings against the police officers were subsequently set aside by the deputy head of the district investigation department as unfounded, and an additional pre-investigation inquiry was ordered.
  2. On 19 May and 28 October 2008, and 10 August 2009 the Tsentralniy District Court, Voronezh, discontinued the proceedings by which the applicant sought to challenge the lawfulness of the decisions of 23 March, 1 October and 11 December 2008 respectively, refusing to open a criminal case against the police officers as in the meantime the above decisions had been set aside.
  3. After the application was communicated to the Russian Government, on 23 March 2011 the district investigation department instituted criminal proceedings under Article 286 § 3 of the Criminal Code of the Russian Federation.
  4. On an unspecified date in the end of March 2011 the applicant was questioned as a victim.
  5. On an unspecified date in April 2011 the investigator appointed a doctor to carry out a forensic medical examination.
  6. On 6 June 2011 the applicant participated in an onsite verification of his statements and in an identity parade of the police officers. Police officers V.V. and S.P. of the Tsentralniy OVD were presented for identification; however, none were recognised by the applicant.
  7. On 25 July 2011 the investigation was suspended on the grounds that it was impossible to identify the alleged perpetrators.

 

  1. Relevant domestic law
  1. Prohibition of torture and other ill-treatment

 

  1. The relevant provisions of the Constitution of the Russian Federation read as follows:

Article 18

«Human and civil rights and freedoms shall be directly enforced. They shall determine the meaning, content and application of laws and the activities of the legislative and executive authorities, and of local self-government, and shall be ensured by the administration of justice.»

Article 21

«1. Human dignity shall be protected by the State. Nothing may serve as a basis for derogation therefrom.

  1. No one shall be subjected to torture, violence or other severe or degrading treatment or punishment…»
  2. Article 9 of the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, «the CCrP») prohibits violence, torture or any other cruel or degrading treatment of participants in criminal proceedings.
  3. Article 286 § 3 of the Criminal Code of the Russian Federation provides that actions by a public official which clearly exceed his or her authority and entail a substantial violation of an individual’s rights and lawful interests, committed with violence or the threat of violence, are punishable by three to ten years’ imprisonment with a prohibition on occupying particular posts or engaging in certain activities for a period of three years.

 

  1. Procedure for examining a criminal complaint
  1. Pre-investigation inquiry

 

  1. The CCrP, as in force at the material time, provided as follows:

Article 140. Grounds for opening a criminal case

«1. A criminal case may be opened in the event of:

  1. a) a complaint of a crime…
  2. Sufficient data disclosing elements of a crime shall serve as grounds for opening a criminal case.»

Article 144. Procedure for examining a report of a crime

«1. An inquiry officer, inquiry agency, investigator, or head of an investigation unit shall accept and examine every report of a crime… and shall take a decision on that report… no later than three days after it has been received… [having] the right to order that the examination of documents or an inspection be performed with the participation of experts…

  1. A head of an investigation unit or a head of an inquiry agency… may extend the time period specified in paragraph (1) of this Article by up to ten days or, where the examination of documents or inspections are to be performed, by up to thirty days…»

Article 145. Decisions to be taken following examination of a report of a crime

«1. An inquiry officer, inquiry agency, investigator or head of an investigation unit shall issue one of the following decisions as a result of the examination of a report of a crime:

1) to open a criminal case, in accordance with the procedure established by Article 146 of the present Code;

2) to refuse to open a criminal case;

3) to transfer the report of a crime [to a competent investigating authority] with the relevant jurisdiction…»

Article 148. Refusal to open a criminal case

«1. In the event of the absence of grounds for opening a criminal case, a head of an investigation unit, an investigator, inquiry agency or inquiry officer shall issue a decision refusing to open a criminal case…

  1. A refusal to open a criminal case may be appealed against to a prosecutor, a head of an investigation unit or a court in accordance with the procedures established by Articles 124 and 125 of the present Code.
  2. …Having declared a refusal by an investigator… to open a criminal case unlawful or unfounded, a head of a relevant investigation unit shall set aside the decision and open a criminal case, or return the evidence for additional examination together with his or her instructions fixing a deadline for their execution.
  3. Having declared a refusal to open a criminal case unlawful or unfounded, a judge shall issue a decision to that effect and transmit it for execution to a head of an investigation unit… and duly notify the applicant.»

Article 149. Referral of a criminal case

«After taking a decision to open a criminal case…»

2) an investigator shall start a preliminary investigation…»

Article 125. Judicial examination of complaints

«1. Decisions of an inquiry officer, investigator, or head of an investigation unit refusing to open a criminal case… or any other decisions and acts ([or] failures to act) which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede citizens’ access to justice, may be appealed against to a district court…

  1. A judge shall examine the legality and the grounds of the impugned decisions or acts… within five days of receipt of the complaint…
  2. Following examination of the complaint, the judge shall issue one of the following decisions:

1) to declare the decisions or acts ([or] failures to act) of the official are unlawful or unfounded and order the official to rectify the breach committed;

2) to dismiss the applicant’s complaint…»

  1. A criminal case should not be opened or should be discontinued if the alleged offence has not been committed (Article 24 § 1 (1) of the CCrP) or if the constituent elements of a criminal offence are missing (Article 24 § 1 (2) of the CCrP).

 

  1. Preliminary investigation

 

  1. Preliminary investigations are regulated by Section VIII (Articles 150 — 226) of the CCrP. Investigative measures to establish the facts of a criminal case and collect evidence, which can be undertaken in the course of a preliminary investigation, include, inter alia, the questioning of a suspect, an accused, a victim or a witness; confrontation between persons whose statements are contradictory; onsite verification of statements; identification of a person or object; search of persons and premises; seizure of items and documents; phone-tapping; and reconstruction of the acts or circumstances. If, on completion of a preliminary investigation, there is sufficient evidence to support charges against an accused, the investigating authority must prepare an indictment which, subject to prior approval by a prosecutor, is then forwarded to a court for trial.
  2. Investigative measures such as the examination of a crime scene, post mortem and physical examination of a suspect, an accused, a victim or a witness may be carried out, if necessary, before a criminal case is opened (Articles 176 § 2, 178 § 4 and 179 § 1 of the CCrP).

 

THE LAW

  1. Alleged violation of Article 3 of the Convention

 

  1. The applicant complained that he had been ill-treated by the police and that there had been no effective investigation into his allegation of ill-treatment. 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.»

  1. The Government argued that the applicant’s complaint under the substantive aspect of Article 3 was premature since the criminal proceedings against the alleged perpetrators were still pending. As regards the applicant’s complaint under the procedural aspect of Article 3, the Government noted that during the pre-investigation inquiry and the preliminary investigation considerable amount of work had been done by the domestic authorities in order to probe the applicant’s allegations of ill-treatment. All the necessary checks had been carried out in due time. In view of the above and the fact that the investigation was ongoing, the Government concluded that the domestic authorities had complied with their positive obligation to conduct an effective investigation.
  2. The applicant argued that his complaint had not been premature. In 2008 — 09 he had actively sought the institution of criminal proceedings against the police officers, but the domestic authorities had repeatedly refused his requests after carrying out several pre-investigation inquiries. Judicial review of the investigating authorities’ refusals was inaccessible following the revocation of those decisions by the supervising authorities (see paragraph 15 above). The pre-investigation inquiry under Article 144 of the Code of Criminal Procedure with its short time-limits and limited powers of an investigator could not be considered an effective remedy for the establishment of the facts and circumstances of his ill-treatment. The only potentially effective remedy against the violation of the applicant’s rights under Article 3 of the Convention would have been the prompt institution of criminal proceedings against the police officers and the timely carrying out of a full-scale criminal investigation. However, it was only after the application had been communicated to the Russian Government that the domestic authorities had decided to open the criminal case in March 2011. The delay in the opening of the criminal case had resulted in the failure of the domestic authorities to investigate the incident of ill-treatment while the matter was still fresh. In particular, the identification of the police officers three years after the incident of ill-treatment had been extremely difficult. Further, not all the police officers who had been on duty at the Tsentralniy OVD on 7 March 2008 had been presented to the applicant for identification. Although a doctor had been appointed by the investigator, no forensic medical examination had been conducted in the course of the preliminary investigation, which would have allowed the applicant to put additional questions to the medical expert — a right he had not been able to exercise when the forensic medical examination had been conducted in the course of the pre-investigation inquiry (see paragraph 18 above). Regardless of the above, in July 2011 the preliminary investigation of the case had been suspended indefinitely due to the impossibility of identifying those responsible for the ill-treatment.

 

  1. Admissibility

 

  1. In so far as the Government suggest that the applicant’s complaint is premature in view of the pending investigation, the Court considers that this question is closely linked to that of whether the investigation of the applicant’s allegations of ill-treatment was effective. However, this issue relates to the merits of the applicant’s complaint under Article 3 of the Convention. The Court therefore decides to join it to the merits.
  2. 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.

 

  1. Merits
  1. The State’s obligation to conduct an effective investigation

 

(a) General principles

  1. The Court reiterates that where an individual makes a credible assertion that he or she has suffered treatment infringing Article 3 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. That investigation should be capable of leading to the identification and — if appropriate — punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice, and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV, and Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 233, 30 March 2016).
  2. The investigation into serious allegations of ill-treatment must be both prompt and thorough. The authorities must always 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 of their decisions. They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony 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 this standard (see Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, § 322, ECHR 2014 (extracts), and Kopylov v. Russia, no. 3933/04, § 133, 29 July 2010). Furthermore, the investigation must be independent, impartial and subject to public scrutiny (see Mesut Deniz v. Turkey, no. 36716/07, § 52, 5 November 2013). It should result in a reasoned decision to reassure a concerned public that the rule of law has been respected (see, mutatis mutandis, Kelly and Others v. the United Kingdom, no. 30054/96, § 118, 4 May 2001).

(b) Application of the general principles to the present case

  1. The Court observes that on 19 March 2008 the applicant complained to the district investigation department that he had been subjected to ill-treatment by the police officers at the Tsentralniy OVD on 7 March 2008. The matter was, hence, duly brought before the competent authorities at a time when they could reasonably have been expected to investigate the circumstances in question.
  2. The applicant substantiated his complaint with medical documents attesting to a number of bruises and scratches on his face and body (see paragraphs 7 — 9 above). The applicant’s claim was therefore shown to be «arguable» and the domestic authorities were placed under an obligation to conduct an effective investigation satisfying the above requirements of Article 3 of the Convention.
  3. The Court notes that in the period between 23 March 2008 and 13 August 2009 the domestic authorities carried out several rounds of «pre-investigation inquiry» into the applicant’s complaint under Article 144 of the CCrP (проверка по заявлению о преступлении). During this period, which amounted to almost seventeen months, five decisions were taken by the domestic authorities refusing the institution of criminal proceedings against police officers for lack of evidence that a crime had been committed. All these decisions were subsequently set aside by the supervising authority as unfounded and additional pre-investigation inquiries were ordered.
  4. The Court further observes that it was not until the applicant’s complaint was communicated to the Russian Government in February 2011 that the district investigation department instituted criminal proceedings under Article 286 § 3 of the Criminal Code of the Russian Federation on 23 March 2011, some three years after the alleged instance of ill-treatment (see paragraphs 4 and 16 above).
  5. The Court found in Lyapin v. Russia that in cases of credible allegations of treatment proscribed under Article 3 of the Convention, it was incumbent on the authorities to open a criminal case and conduct an investigation, a «pre-investigation inquiry» alone not being capable of meeting the requirements of effective investigation under Article 3. It held that the mere fact of the investigating authority’s refusal to open a criminal investigation into credible allegations of serious ill-treatment in police custody was indicative of the State’s failure to comply with its obligation under Article 3 to carry out an effective investigation (see Lyapin v. Russia, no. 46956/09, §§ 128 — 40, 24 July 2014).
  6. The above findings are fully applicable to the present case. On the facts, the Court notes that the data which the district investigation department assessed as sufficient for opening a criminal case on 23 March 2011 were in that department’s hands shortly after the applicant’s ill-treatment. Hence, nothing can explain the three year delay in commencing the criminal investigation into the applicant’s complaint. The Court considers that such a delay could not but have had a significant adverse impact on the investigation, considerably undermining the investigating authority’s ability to secure the evidence concerning the alleged ill-treatment (see Razzakov v. Russia, no. 57519/09, § 61, 5 February 2015, and Bataliny v. Russia, no. 10060/07, § 103, 23 July 2015).
  7. The Court further notes that the investigation that followed the opening on 23 March 2011 of the criminal case into the applicant’s allegations of ill-treatment was suspended shortly afterwards, on 25 July 2011, for failure to identify the alleged perpetrators, and remains pending to the present day.
  8. Turning to the Government’s argument regarding the applicant’s complaint being premature, the Court recognises that the investigation is still pending, but, in view of the length of the proceedings so far and the seriousness of the issues at stake, the Court does not consider that the applicant should have waited for completion of the investigation before making his application to the Court, as the conclusion of those proceedings would not remedy the overall delay in any way (see Yudina v. Russia, no. 52327/08, § 61, 10 July 2012).
  9. In the light of the foregoing, the Court dismisses the Government’s objection and finds that the significant delay in opening the criminal case and commencing a full criminal investigation into the applicant’s credible allegation of ill-treatment at the hands of the police, disclosing elements of a criminal offence, and the subsequent handling of the criminal proceedings which remain pending almost eight years after the events complained of, show that the authorities failed in their obligation to conduct an effective investigation of the applicant’s allegations of ill-treatment.
  10. Accordingly, there has been a violation of Article 3 of the Convention under its procedural head.

 

  1. The applicant’s alleged ill-treatment

 

(a) General principles

  1. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see v. Poland [GC], no. 30210/96, § 90, ECHR 2000-XI; see also Bouyid v. Belgium [GC], no. 23380/09, § 81, ECHR 2015).
  2. In order for ill-treatment to fall within the scope of Article 3 it must attain a minimum level of severity. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25).
  3. Where allegations are made under Article 3 of the Convention the Court must apply a particularly thorough scrutiny. Where domestic proceedings have taken place, however, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them. Although the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (see v. Germany [GC], no. 22978/05, § 93, ECHR 2010).
  4. In assessing the evidence on which to base a decision as to whether there has been a violation of Article 3, the Court adopts the standard of proof «beyond reasonable doubt». Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006-IX).
  5. Where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 (see Ribitsch v. Austria, 4 December 1995, § 34, Series A no. 336, and Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V).

(b) Application of the general principles to the present case

  1. The Court observes that on 7 March 2008 the applicant was arrested and brought to the Tsentralniy OVD, where he alleged that he had been subjected to ill-treatment by the police officers. On 8 March 2008 the applicant applied for medical assistance at the town hospital, which recorded that he had a bruised chest. On 10 March 2008 the applicant was examined by a forensic medical expert, who recorded bruises on the applicant’s chest, right eye and right wrist, and scratches on the left of his forehead and both wrists. The expert concluded that the above injuries were inflicted by a blunt hard object one to three days before the examination, possibly on 7 March 2008. On 11 March 2008 the applicant was further examined at the local polyclinic, which diagnosed him as having developed periarthritis as a result of trauma of the wrist joints (see paragraphs 7 — 9 above). Nothing indicates that the applicant had those injuries before he was taken into custody. The Government were therefore required to provide a plausible explanation as to how those injuries could have been caused.
  2. On the basis of all the material placed before it, the Court finds that neither the authorities at the domestic level nor the Government in the proceedings before the Court have advanced any explanation as to the origin of the applicant’s injuries. The Court concludes therefore that the Government have not satisfactorily established that the applicant’s injuries were caused by something other than the treatment he underwent at the hands of the police officers on the premises of the Tsentralniy OVD.
  3. Accordingly, having regard to the nature and the extent of the applicant’s injuries, the Court concludes that the State is responsible under the substantive aspect of Article 3 on account of the inhuman and degrading treatment to which the applicant was subjected while in the Tsentralniy OVD.

 

  1. Other alleged violations of the Convention

 

  1. Lastly, the applicant complained under Article 5 of the Convention about the alleged unlawfulness of his detention at the Tsentralniy OVD on 7 March 2008 and under Article 13 of the Convention about the absence of an effective domestic remedy in this respect.
  2. However, having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court finds that there is no appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

 

III. Application of Article 41 of the Convention

 

  1. 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.»

 

  1. Damage

 

  1. The applicant claimed 25,000 euros (EUR) in respect of non-pecuniary damage.
  2. The Government considered the applicant’s claim excessive and submitted that if the Court were to find a violation, the finding of such a violation would in itself constitute sufficient just satisfaction.
  3. The Court notes that it has found a violation under both the substantive and procedural heads of Article 3 of the Convention on account of the applicant’s ill-treatment by the police and the failure to carry out an effective investigation into the matter. In these circumstances, the Court considers that the suffering and frustration caused to the applicant cannot be compensated for by a mere finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 15,000 in respect of non-pecuniary damage, plus any tax that may be chargeable thereon.

 

  1. Costs and expenses

 

  1. The applicant also claimed 52,586.06 Russian roubles (RUB) (approximately EUR 1,265) for the expenses incurred in the domestic proceedings, broken down as follows:

(i) RUB 440 for the applicant’s examination at the Voronezh regional forensic bureau;

(ii) RUB 2,146.06 for postal and other administrative expenses;

(iii) RUB 50,000 paid for the applicant’s legal representation by The Public Verdict Foundation for Assistance in the Protection of Citizen’s Rights and Freedoms («the Public Verdict NGO»), a non-governmental organisation.

  1. The applicant further claimed RUB 90,000 (approximately EUR 2,165) for legal costs and translation expenses incurred before the Court.
  2. The Government submitted that the applicant had failed to substantiate his expenses incurred in the proceedings before the Court.
  3. 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. The Court notes that as regards the costs and expenses incurred in the domestic proceedings, the sum of RUB 50,000 was paid by the Public Verdict NGO. The documents in the Court’s possession do not attest to the applicant’s obligation to reimburse the sum paid by the Public Verdict NGO. Having regard to the violation of Article 3 found in the present case and the above criteria, and bearing in mind that the applicant was granted EUR 850 in legal aid for his representation before the Court by Ms O. Gnezdilova, the Court rejects the claim for reimbursement of the costs and expenses in the domestic proceedings paid by the Public Verdict NGO and considers it reasonable to award the applicant the sum of EUR 1,375 for costs and expenses incurred in the domestic proceedings and the proceedings before the Court, together with any tax that may be chargeable thereon.

 

  1. Default interest

 

  1. 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,

 

  1. Joins to the merits the Government’s objection as to the exhaustion of domestic remedies and rejects it;
  2. Declares the complaint under Article 3 of the Convention admissible and the remainder of the application inadmissible;
  3. Holds that there has been a violation of Article 3 of the Convention under its procedural aspect;
  4. Holds there has been a violation of Article 3 of the Convention under its substantive aspect in that the applicant was subjected to inhuman and degrading treatment;
  5. Holds

(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 respondent State at the rate applicable at the date of settlement:

(i) EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,375 (one thousand three hundred and seventy-five 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;

  1. Dismisses the remainder of the applicant’s claim for just satisfaction.

 

Done in English, and notified in writing on 24 May 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Luis  GUERRA President

Stephen PHILLIPS Registrar

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