Постановление ЕСПЧ от 04.10.2022
Актуально на 04.11.2026.
Как цитировать: Постановление ЕСПЧ от 04.10.2022. 4261/06. 04.10.2022. https://bukva.ai/docs/postanovlenie-426106
<Дело Кудаев и другие (Kudayev and Others) против России> (жалоба № 4261/06 и 28 других) [англ.]
(Вместе со <Списком дел>)
EUROPEAN COURT OF HUMAN RIGHTS
CASE OF KUDAYEV AND OTHERS v. RUSSIA (Applications nos. 4261/06 and 28 others — see appended list)
<*> This judgment is final but it may be subject to editorial revision.
In the case of Kudayev and Others v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Georgios A. Serghides, President,
and Olga Chernishova, Deputy Section Registrar,
the applications (nos. 4261/06 and 28 others) 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 27 Russian nationals (see a list of applicants in Appendix I) («the applicants»), on the various dates indicated in the appended table;
the decision to give notice to the Russian Government («the Government») of the complaints concerning the applicants' alleged ill-treatment and their subsequent conviction and to declare the remainder of applications nos. 4261/06, 4271/06 and 30466/08 inadmissible on 3 November 2011 pursuant to Rule 54 § 3 of the Rules of Court;
Having deliberated in private on 13 September 2022,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The applicants alleged that they had been subjected to police ill-treatment in the aftermath of the terrorist attack of 2005 in Nalchik, Kabardino-Balkaria, and that no effective investigation into the matter had been carried out. Some of the applicants complained that their confessions obtained under duress had been used to convict them.
THE FACTS
2. The list of applicants, their personal details and their representatives are set out in Appendix I.
3. The Government were initially represented by Mr G. Matyushkin and Mr A. Fedorov, former Representatives of the Russian Federation to the European Court of Human Rights, and later by their successor in this office, Mr M. Vinogradov.
4. The facts of the case may be summarised as follows.
I. Background of the case
A. The events of 13 — 14 October 2005
5. On 13 October 2005 a group of about two hundred fifty heavily armed persons simultaneously attacked several law-enforcement agencies in Nalchik, Kabardino-Balkaria, including the buildings of the Federal Security Service (the FSB), the special police forces (the OMON), the Department for Combatting Organised Crimes of the Ministry of the Interior (the UBOP), the Centre for Combatting Terrorism of the Ministry of the Interior (the Centre «T»), several police stations and the Nalchik airport. The Russian authorities deployed federal troops and special forces to regain control of the city (see Sabanchiyeva and Others v. Russia, no. 38450/05, ECHR 2013 (extracts), and Pshibiyev and Berov v. Russia, no. 63748/13, 9 June 2020).
6. The ensuing hostilities between the State forces and the armed men lasted until the next day, and, according to various sources, about thirty-five law-enforcement officers, ninety-five armed men and fifteen civilians were killed, about hundred thirty law-enforcement officers and ninety-two civilians were injured.
B. Criminal investigation into the attack
7. On 13 October 2005 the authorities opened criminal case no. 25-78-05 into the attack, premeditated murder, use of weapons and explosives and other crimes under the Criminal Code of Russia. The investigation was entrusted to a special investigative group of the Prosecutor's General Office of the Russian Federation. In total about sixty persons were arrested on the suspicion of participation in the Nalchik attack.
II. The applicants' alleged ill-treatment and the investigation thereof
A. The applicants' arrests and alleged ill-treatment
8. Between 13 October 2005 and 27 March 2006 the police arrested the applicants in various regions of Russia (see Appendix II) and took them to the UBOP or the Centre «T» offices in Nalchik. According to the applicants, the officers beat them with truncheons, gun butts and subjected to electric shocks, forcing to confess to participation in the attack and testify against the other applicants and third parties.
9. Shortly after their respective arrests the applicants underwent medical examinations. According to forensic medical examination acts and remand prison medical notes, the applicants sustained injuries of different type and severity (see Appendix II). Forensic medical examinations carried out in respect of Mr Berov (no. 66215/10) and Mr Khakulov (no. 46445/16) did not reveal any injuries.
B. Inquiries into the applicants' alleged ill-treatment
10. On various dates between 2005 and 2007 the applicants complained about their alleged ill-treatment to the Prosecutor's Office in Nalchik.
11. The latter refused to open criminal proceedings into the applicants' alleged ill-treatment for the lack of evidence of crime. In their refusals to open a criminal case, the investigators, mainly referring to the statements of the implicated police officers, found the applicants' allegations unfounded. The applicants' injuries were described as minor or insignificant. In several cases the investigators' decisions were overruled multiple times by a superior authority as incomplete or premature, or quashed by domestic courts (for details about the refusals and domestic courts' decisions see Appendix II).
III. The applicants' trial
A. First instance court proceedings
12. On an unspecified date in 2007 the criminal case against fifty-seven individuals, including twenty applicants in the present case, was transferred for examination at the first instance to the Supreme Court of the Kabardino-Balkaria Republic (the KBR Supreme Court). The court proceedings concerned thirteen episodes of the attack; about 440 victims and 1,500 witnesses were questioned, and about 1,600 forensic examinations were conducted.
13. On 23 December 2014 the KBR Supreme Court convicted the applicants and their co-defendants of attacks on law-enforcements agencies on 13 October 2005. The applicants were found guilty, among other things, in participation in seven episodes of the attack (see paragraphs 18 — 27 below). Mr Mashukov (no. 38376/16), Mr Bapinayev (no. 43794/16), Mr Aslan Kuchmenov (no. 45053/16), Mr Mironov (no. 48040/16) and Mr Kudayev (no. 48034/16) were sentenced to life imprisonment. The court sentenced other applicants to prison terms varying between nine and twenty-three years.
14. As incriminating evidence the court mainly relied on the applicants' confession statements and incriminating statements made by their co-defendants, victims' and witnesses' statements, victims' forensic medical examinations, ballistic expert reports, records of the crime scene examination, cross-examination reports, identification parades records and so forth. The judgment contained information about the co-defendants' injuries, recorded in their forensic medical examination reports, and about the refusals to open a criminal case into their alleged ill-treatment.
15. The KBR Supreme Court dismissed the applicants' arguments that their confession statements and the incriminating statements of their co-defendants had been obtained as a result of the police ill-treatment. It referred to the respective refusals to open a criminal case into the applicants' and their co-defendants' alleged ill-treatment, medical documents contained therein and found that the applicants' arguments insufficiently supported by the evidence.
16. The detailed information concerning the dates of the investigative activities, during which the applicants and their co-defendants gave self-incriminating and incriminating statements against each other, as well as the information concerning the co-defendants' medical examinations and the refusals to open a criminal case into their alleged ill-treatments is contained in Appendix III.
17. The applicants were convicted of, among other things, the participation in seven episodes of the attack on the basis of the following.
1. Attack on the UBOP
18. Mr Shavayev (no. 879/13) was convicted on the basis of, among other evidence, his confession statements, as well as incriminating statements of co-defendants R.Kh., Z.Er., Z.To. and Z.Ul.
2. Attack on the Centre «T»
19. Mr Mashukov (no. 38376/16), Mr Sokmyshev (no. 44927/16) and Mr Khamukov (no. 47874/16) were convicted on the basis of, among other evidence, their confession statements and statements incriminating each other. No co-defendants' incriminating statements were used against these applicants.
3. Attack on gun shop «Okhotnik Plus»
20. Mr Ruslan Kuchmenov (no. 17325/13), Mr Aslan Kuchmenov (no. 45053/16) and Mr Bapinayev (no. 43794/16) were convicted on the basis of, among other evidence, their confession statements and statements incriminating each other.
21. The applicants were also incriminated by applicants Malyshev (no. 547/09) and Kashirgov (no. 55234/08), and co-defendants M.So. and Dzh.Na.
4. Attack on the OMON
22. Mr Berov (no. 66215/10), Mr Pshibiyev (no. 48038/16), Mr Khakulov (no. 46445/16) and Mr Kelemetov (no. 17322/13) were convicted on the basis of, among other evidence, their confession statements and statements incriminating each other.
23. The applicants were also incriminated by applicant Urusov (no. 47544/10) and co-defendants A.B., R.Sh., S.B.
5. Attack on the FSB Border Guard Service office no. 43
24. Mr Khupsirgenov (no. 45222/16) refused to testify. He was convicted on the basis of, among other evidence, incriminating statements of applicant Mr Khubolov (no. 2619/09) and co-defendants Kh.Ye., S.Se., A.Kh., A.Ba., A.Za., A.Un., K.At.
6. Attack on the Patrol Service Regiment
25. Mr Mironov (no. 48040/16) was convicted on the basis of, among other evidence, his own confession statements. He was also incriminated by co-defendant K.Bo.
7. Attack on checkpoint «Khasanya»
26. Mr Akhkubekov (no. 39383/08), Mr Khulamkhanov (no. 35080/11) and Mr Kudayev (no. 48034/16) were convicted on the basis of, among other evidence, their confession statements and statements incriminating each other.
27. They were also incriminated by applicant Malyshev (no. 547/09) and co-defendants Al.Akh., R.No., Z.So. and A.Ku.
B. Appeal proceedings
28. On 28 January 2016 the Supreme Court of Russia upheld the conviction on appeal. Dismissing the applicants' appeal against the use of their own confession statements and incriminating statements made by other co-defendants allegedly obtained under duress, the Supreme Court referred to the refusals to open a criminal case into the alleged ill-treatment and held that no evidence had been found in support of their arguments. It also found that the right not to incriminate oneself had been explained to the applicants and that the applicants had been represented by lawyers at all investigative steps.
IV. Other materials submitted by the applicants
29. On 26 October 2005 online news portal Rupor published article «Deputy, United Russia member, talked about „sweeping-up“ operation in Nalchik: people are tortured in basements until they confess». According to the text, a local deputy, Mr R.T., was arrested on 23 October 2005 and taken to the basement of the UBOP building in Nalchik, where people arrested on the suspicion of participation in the attack on 13 October 2005 were held. According to R.T., the detainees were «beaten to death or until they confessed or incriminated one another».
30. On 1 November 2005 online news portal Caucasian Centre/News published article «Suspects in the attack on Nalchik confirm the use of torture in the UBOP». One of the suspected persons, who wished to remain anonymous, told the journalists that when he had been taken to the UBOP, between fifty and one hundred suspects had already been held on the premises. He had been beaten by gun butts and truncheons with a view to extracting a confession of participation in the attack. He had heard cries and screams of other detainees.
31. On 21 November 2005 newspaper Novaya Gazeta published article «Nalchik a month later. How the investigation is going», pointing out that «torture was the main method of the investigation». The article described lawyers' attempts to meet their clients, suspects in the attack, who had confessed to the crimes due to the beatings and then had reiterated their statements out of fear of further ill-treatment.
32. Various Russian and foreign newspapers and media outlets published photos of the suspects with injuries. On 9 December 2005 web portal Caucasian Knot published the article about the Prosecutor's Office press-conference, where the Prosecutor of the KBR, Mr Yu.K., stated that «the facts of the alleged ill-treatment had not been confirmed» and that «there had been no breaches of the suspects' rights».
33. The applicants referred to many other articles published by various newspapers and human rights organisations about the alleged ill-treatment of the suspects in the attack by the police with the aim of extracting confessions of their participation in the Nalchik attack.
V. Other relevant information
A. Mr Kudayev, application no. 4261/06
1. The applicant's state of health
34. According to the applicant, while in custody between 2006 and 2014 he suffered from a number of serious illnesses, including hepatitis, hepatic cholecystitis, chronic pancreatitis and vegetative-vascular dystonia. The authorities allegedly failed to provide him with the adequate medical care.
35. According to the Government, several tests were carried out and the applicant was not diagnosed with hepatitis; the medical notes indicated that he had received adequate treatment for the other illnesses.
2. The applicant's correspondence with the Court
36. According to the applicant, during a check-up on 3 March 2011 the remand prison authorities seized his application to the Court.
B. Mr Mironov, application no. 30466/08
37. According to the applicant, he hired two lawyers to represent him in the proceedings concerning his alleged ill-treatment. On several occasions the remand prison officials precluded the lawyers from visiting him in detention alleging that they were not duly authorised for the proceedings.
C. Mr Aslan Kuchmenov, applications nos. 31067/17 and 40436/18
38. Between 12 April 2016 and 19 January 2018 the applicant served his sentence in correctional facility no. 56 in Ivdel in the Sverdlovsk Region («IK-56»), where he was placed under the strict regime of imprisonment as a life prisoner.
39. The applicant, who was unemployed and in solitary confinement, was in his cell 22.5 hours per day; his time in the open air was limited to 1.5 hour per day. He was handcuffed every time he was taken out of the cell.
40. On 19 January 2018 the applicant was transferred to correctional colony no. 6 («IK-6») in Elban in the Khabarovsk Region. On his way to that facility, the applicant was detained in remand prison no. 1 in Yekaterinburg between 21 and 28 January 2018, and in remand prison no. 1 in Irkutsk between 15 and 22 February 2018. The applicant was handcuffed whenever he was taken out of his cell for a walk.
D. Ms Kuchmenova and 5 others, application no. 20559/19
42. Application no. 20559/19 was lodged by six applicants, Mr Bapinayev, Mr Mironov, Mr Aslan Kuchmenov, Ms Shavayeva, Ms Akhmetova and Ms Kuchmenova (for details on family ties see Appendix I).
43. Following the conviction, Mr Aslan Kuchmenov and Mr Mironov, respectively, were transferred to serve their sentences in IK-6 in Elban in the Khabarovsk Region, about 9,500 kilometres away from Nalchik, where their relatives live. Mr Bapinayev was transferred to serve his sentence in correctional colony no. 6 in Sol-Iletsk in the Orenburg Region, about 2,000 kilometres away from Nalchik.
44. On 26 February 2019 the applicants' requests to the Russian Federal Penal Correction Service to transfer applicants Mr Bapinayev, Mr Mironov and Mr Aslan Kuchmenov closer to their home region were dismissed for the lack of legal grounds for the transfer.
E. Ms Kugotova and 3 others, application no. 26399/19
45. Application no. 26399/19 was lodged by four applicants, Mr Mashukov, Ms Kugotova, Mr Imran Mashukov and Mr Umar Mashukov (for details on family ties see Appendix I).
46. Following the conviction, Mr Mashukov was transferred to correctional colony no. 18 in Kharp in the Yamalo-Nenetskiy Region, which is about 3,900 kilometres away from Nalchik, where his relatives live.
F. Other information
47. Applicant Mr Murat Kashirgov (no. 55234/08) died on 19 June 2016. The applicant's wife, Ms Rusana Keshtova (born in 1984), maintained the application.
48. Applicant Mr Amur Khakulov (no. 46445/16) died on 7 October 2016. His wife, Ms Fatima Sonova (born in 1971), maintained the application.
49. Applicant Mr Khasanbi Khupsirgenov (no. 45222/16) died on 3 July 2021. His brother, Mr Akhmed Khupsergenov (born in 1982), maintained the application.
50. On an unspecified date applicant Ms Maryam Akhmetova (no. 20559/19) died. She was the mother of Mr Eduard Mironov (nos. 30466/08 and 20559/19), who expressed the wish to maintain her application.
RELEVANT LEGAL FRAMEWORK AND PRACTICE
51. For the relevant domestic law on the prohibition of torture and other forms of ill-treatment and the rights of suspects, see Ryabtsev v. Russia (no. 13642/06, §§ 48 — 52, 14 November 2013); Lyapin v. Russia (no. 46956/09, §§ 96 — 102, 24 July 2014); and Turbylev v. Russia (no. 4722/09, §§ 46 — 49, 6 October 2015).
RELEVANT COUNCIL OF EUROPE MATERIAL
52. The relevant parts of the public statement of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) concerning the Chechen Republic and other republics of the North Caucasian region of 11 March 2019 read as follows:
«It should also be emphasised that the widespread practice of police ill-treatment is not unique to [Chechen Republic]; this problem has been repeatedly highlighted also in respect of other republics of the North Caucasian region after the 2007 public statement, in particular in the context of the CPT's 2008, 2009, 2011 and 2016 ad hoc visits to the Republics of Dagestan, Ingushetia, Kabardino-Balkaria and North Ossetia. [...] The Committee's findings in the course of those visits demonstrated that resort to torture and other forms of severe ill-treatment remained a common occurrence in law enforcement establishments in these republics.»
THE LAW
I. Joinder of the applications
53. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.
II. Preliminary issues
54. The Court notes that applicants Mr Kashirgov (no. 55234/08), Mr Khakulov (no. 46445/16), Mr Khupsirgenov (no. 45222/16) and Ms Akhmetova (no. 20559/19) passed away on various dates and their relatives maintained their complaints (see paragraphs 47 — 50 above).
55. The Government did not dispute their standing before the Court.
56. Having regard to the subject matter of the applications and all the information in its possession, the Court considers that the applicants' relatives, as indicated in Appendix I, have legitimate interest in pursuing the applications and that they have the requisite locus standi under Article 34 of the Convention.
III. Alleged violation of Articles 3 and 13 of the Convention
57. The applicants indicated in Appendix II complained that they had been ill-treated by State agents and that no effective investigation into their complaints had been carried out, and that there had been no effective remedies available in respect of their complaints, contrary to Articles 3 and 13 of the Convention, the relevant parts of which read as follows:
«Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority...»
A. Admissibility
1. The parties' submissions
(i) Non-exhaustion of domestic remedies
58. The Government submitted that applicants Mr Khupsirgenov (no. 45222/16) and Mr Khakulov (no. 46445/16) had failed to exhaust domestic remedies, since they had not appealed against the refusals to open a criminal case to the domestic courts under Article 125 of the Code of Criminal Procedure.
59. The Government argued that the final decisions in the cases of Mr Berov (no. 66215/10), Mr Bapinayev (no. 43794/16), Mr Sokmyshev (no. 44927/16) and Mr Aslan Kuchmenov (no. 45053/16) had been taken, respectively, on 26 August 2009, 26 May 2008, 7 September 2015 and 23 July 2013, whereas their applications were lodged in more than six months after those dates.
60. The applicants Mr Khupsirgenov (no. 45222/16) and Mr Khakulov (no. 46445/16) submitted that they had not lodged complaints under Article 125 of the CCrP, arguing that such a complaint would be futile as no criminal cases had been opened in respect of other co-defendants who had challenged their respective refusals before the domestic courts. They further argued that they had raised their complaints during the investigation and before the Supreme Court of KBR, but to no avail.
61. The applicants Mr Berov (no. 66215/10), Mr Bapinayev (no. 43794/16), Mr Sokmyshev (no. 44927/16) and Mr Aslan Kuchmenov (no. 45053/16) argued that in addition to their criminal-law complaints, which had been dismissed by the investigators, they had raised their complaints under Article 3 of the Convention during the trial and before the appellate court. According to them, the final decision in respect of their Article 3 complaint was the decision of the Supreme Court of Russia of 28 January 2006, and that therefore they complied with the six-month time-limit.
2. The Court's assessment
62. The Court notes that the Government raised objections as to the applicants' non-compliance with the six-month rule in the cases of Mr Berov (no. 66215/10), Mr Bapinayev (no. 43794/16), Mr Sokmyshev (no. 44927/16) and Mr Aslan Kuchmenov (no. 45053/16). They did not raise this objection in respect of Mr Urusov (no. 47544/10), Mr Khupsirgenov (no. 45222/16) and Mr Khakulov (no. 46445/16). The Court notes that the six-month rule is a public policy rule and that it has jurisdiction to apply it of its own motion (see Blokhin v. Russia [GC], no. 47152/06, § 102, 23 March 2016), and therefore will also examine whether Mr Urusov, Mr Khupsirgenov and Mr Khakulov complied with that rule, alongside with the other applicants.
63. The Court observes that at various dates the applicants complained about their alleged ill-treatment to the investigators, and the latter refused to open a criminal case. Between 2008 and 2015 applicants Mr Urusov, Mr Berov, Mr Bapinayev, Mr Sokmyshev and Mr Aslan Kuchmenov challenged their respective refusals before the Nalchik Town Court, which declared the impugned decisions unlawful and quashed them in most cases. The Court was not provided with any documents showing the results of the subsequent inquiries.
64. The period between the latest relevant decisions of the Nalchik Town Court and the time when the applicants lodged their applications with the Court is more than six months and varies between ten months (Mr Urusov) and ten years (Mr Khakulov).
65. It is unclear why applicants Mr Khupsirgenov and Mr Khakulov failed to lodge their applications within six months following their respective refusals of November 2006 and March 2009, the more so since both of them considered that challenging those decisions before the domestic courts would have been ineffective.
66. The Court notes that Mr Khakulov, Mr Bapinayev, Mr Khupsirgenov and Mr Aslan Kuchmenov did not explain the delay in lodging their applications of ten, eight, seven and three years, respectively, after the relevant decisions had been taken. Similarly, no explanations were provided in the cases of Mr Urusov, Mr Berov and Mr Sokmyshev, where the delay comprised between ten months and a year. The Court notes that the applicants, who had been represented in the national proceedings by lawyers of their own choosing, failed to explain what prevented them from lodging their applications with the Court within six months after their ill-treatment complaints had been dismissed.
67. The Court notes that all applicants in question submitted that the appeal decision of the Supreme Court of Russia of 28 January 2016 should be considered as the final decision in respect of their Article 3 complaint, as they raised the issue in the trial and the appeal proceedings.
68. In this respect the Court reiterates that the purpose of the criminal proceedings against the applicants was to find them innocent or guilty of the criminal charges brought against them, rather than to attribute responsibility for the alleged beatings (see Belevitskiy v. Russia, no. 72967/01, § 63, 1 March 2007). The Court notes that both the KBR Supreme Court and the Supreme Court of Russia rejected the applicants' arguments regarding their alleged ill-treatment solely relying on the decisions not to open a criminal case, without reviewing their findings or examining the ill-treatment complaints in substance (see, by contrast, Markaryan v. Russia, no. 12102/05, § 44, 4 April 2013) or ordering another judicial inquiry (see, for example, Dmitrachkov v. Russia, no. 18825/02, § 39, 16 September 2010).
69. Thus, the Court does not consider the decision of the Supreme Court of Russia of 28 January 2016 as the final decision for the purpose of calculation of the six-month time-limit for the applicants' complaint under Article 3 of the Convention, and finds that the applicants should have lodged their applications with the Court within six months after the respective decisions in the proceedings under Article 125 of the CCrP (see paragraphs 64 and 65 above).
70. The Court finds the complaints under Article 3 of the Convention concerning alleged ill-treatment of Mr Berov (no. 66215/10), Mr Urusov (no. 47544/10), Mr Bapinayev (no. 43794/16), Mr Sokmyshev (no. 44927/16), Mr Aslan Kuchmenov (no. 45053/16), Mr Khupsirgenov (no. 45222/16) and Mr Khakulov (no. 46445/16) inadmissible for the failure to comply with the six-month time-limit and rejects them in accordance with Article 35 §§ 1 and 4 of the Convention.
71. In view of above finding, the Court considers that it is not necessary to address the Government's non-exhaustion plea in the cases of Mr Khupsirgenov (no. 45222/16) and Mr Khakulov (no. 46445/16).
72. The Court finds that the remaining applications are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.
B. Merits
73. The applicants maintained the complaints. The Government submitted that there had been no violations of Articles 3 and 13 of the Convention, referring to the conclusions of the inquiries conducted by the domestic authorities.
1. Alleged ill-treatment
74. The Court observes that on various dates between 13 October 2005 and 27 March 2006 the applicants were arrested by State agents on the suspicion of involvement in the armed attack in Nalchik on 13 October 2005. They were taken to the UBOP or the Centre «T» in Nalchik. The applicants provided detailed and consistent accounts of the circumstances of the alleged ill-treatment, which involved severe beatings by truncheons, gun butts, electric shocks, to which they had been subjected with the aim of forcing them to confess to participation in the attack and testify against other applicants and/or other persons suspected of the involvement in the incident. Applicant Ms Yerizhokova was allegedly beaten during the arrest of her husband, applicant Mr Mironov (no. 30466/08).
75. The Court observes that the applicants sustained injuries of varying degrees of severity, as recorded within few days after their arrests by remand prison medical staff and forensic medical experts (see Appendix II), which is sufficient to give rise to a presumption in favour of their accounts of the events and satisfy the Court that their allegations of ill-treatment by State agents were credible.
2. Legal classification of the treatment
76. The applicants alleged that they had been subjected to torture or inhuman or degrading treatment.
77. In view of the severity of the ill-treatment supported by medical evidence and its consequences for the applicants' health, Mr Kudayev (no. 4261/06), Mr Pshibiyev (no. 4271/06), Mr Khamukov (no. 26591/08), Mr Malyshev (no. 547/09) and Mr Mashukov (no. 24515/10) were subjected to torture, and Mr Mironov and Ms Yerizhokova (no. 30466/08), Mr Akhkubekov (no. 39383/08), Mr Kashirgov (no. 55234/08), Mr Khubolov (no. 2619/09), Mr Khulamkhanov (no. 35080/11), Mr Shavayev (no. 879/13), Mr Kelemetov (no. 17322/13) and Mr Ruslan Kuchmenov (no. 17325/13) were subjected to inhuman and degrading treatment, as alleged by them.
3. Effectiveness of the investigation
78. The Court observes that the applicants' credible allegations of police ill-treatment were dismissed by the authorities as unfounded mainly because of the statements of the implicated officers denying the ill-treatment. The investigators issued several decisions refusing to open criminal proceedings, some of which were overruled by superior investigators as premature or quashed by domestic courts as unlawful and incomplete (see Appendix II).
79. The Court reiterates that in circumstances where the information gathered has disclosed elements of a criminal offence, a pre-investigation inquiry is normally insufficient and the authorities' refusal to institute a fully fledged criminal investigation into credible allegations of ill-treatment is indicative of the State's failure to comply with its procedural obligation under Article 3 of the Convention (see Lyapin v. Russia, no. 46956/09, § 129 — 36, 24 July 2014). The Court has no reason to hold otherwise in the present case, which involves credible allegations of particularly serious ill-treatment.
80. Given that the Government's explanations relied on the superficial domestic inquiries which fell short of the requirements of Article 3 of the Convention, the Court finds that they cannot be considered satisfactory or convincing. It holds that the Government have failed to discharge their burden of proof and produce evidence capable of casting doubt on the applicants' account of events, which the Court 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).
4. Conclusion
81. There has, accordingly, been a violation of Article 3 of the Convention under its substantive and procedural limbs in respect of the applicants mentioned in paragraph 77 above.
82. The Court finds that there is no need to examine separately the complaint under Article 13 taken in conjunction with Article 3 of the Convention.
IV. Alleged violation of Article 6 of the Convention
83. The applicants Mr Akhkubekov (no. 39383/08), Mr Berov (no. 66215/10), Mr Khulamkhanov (no. 35080/11), Mr Shavayev (no. 879/13), Mr Kelemetov (no. 17322/13), Mr Ruslan Kuchmenov (no. 17325/13), Mr Bapinayev (no. 43794/16), Mr Sokmyshev (no. 44927/16), Mr Aslan Kuchmenov (no. 45053/16), Mr Khupsirgenov (no. 45222/16), Mr Khakulov (no. 46445/16), Mr Khamukov (no. 47874/16), Mr Kudayev (no. 48034/16), Mr Pshibiyev (no. 48038/16), Mr Mironov (no. 48040/16) and Mr Mashukov (no. 38376/16) complained that their conviction had been based on their confession statements and incriminating statements of their co-defendants obtained under duress, which had rendered their trial unfair. They relied on Article 6 of the Convention, the relevant parts of which read as follows:
«In the determination of... any criminal charge against him, everyone is entitled to a fair... hearing... by an independent and impartial tribunal...»
A. Admissibility
84. The Government argued that applicants Mr Khulamkhanov (no. 35080/11) and Mr Mironov (no. 48040/16) had not appealed against the judgment of 23 December 2014 and thus failed to exhaust domestic remedies.
85. The applicants submitted that they had lodged an appeal against the judgment, which was eventually dismissed by the Supreme Court of Russia.
86. The documents submitted by the parties show that both applicants, Mr Khulamkhanov and Mr Mironov, lodged their respective appeals against the judgment of the KBR Supreme Court of 23 December 2014. They raised their arguments that their confession statements and incriminating statements of their co-defendants were inadmissible evidence obtained under duress.
87. In view of the above, the Court finds that the applicants exhausted domestic remedies and the Government's objection must therefore be dismissed.
88. The Court notes that this part of the applications are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.
B. Merits
89. The applicants complained that in convicting them, the trial court used their confession statements obtained in breach of Article 3 of the Convention as a result of police ill-treatment. They also complained that the trial court relied on incriminating statements of their co-defendants allegedly obtained under duress (see Appendix III). The Government contested, referring to the findings of the domestic authorities. They pointed out that the applicants' and their co-defendants' allegations of ill-treatment had been unconfirmed and that the disputed evidence had not been the sole evidence on which their conviction had been based.
1. The trial of the applicants in respect of whom Article 3 has been breached
(a) The use of the applicants' confession statements obtained under duress
90. The Court reiterates that the admission of confession statements obtained in violation of Article 3 of the Convention 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 v. Germany [GC], no. 22978/05, § 166, ECHR 2010; Turbylev v. Russia, no. 4722/09, § 90, 6 October 2015; and Belugin v. Russia, no. 2991/06, §§ 69 — 71, 26 November 2019). These principles apply not only where the victim of the treatment contrary to Article 3 is the actual defendant but also where third parties are concerned (see El Haski v. Belgium, no. 649/08, § 85, 25 September 2012, and Urazbayev v. Russia, no. 13128/06, § 73, 8 October 2019).
91. In the present case the Court has already found that applicants Mr Akhkubekov (no. 39383/08), Mr Khulamkhanov (no. 35080/11), Mr Shavayev (no. 879/13), Mr Kelemetov (no. 17322/13), Mr Ruslan Kuchmenov (no. 17325/13), Mr Khamukov (no. 47874/16), Mr Kudayev (no. 48034/16), Mr Pshibiyev (no. 48038/16), Mr Mironov (no. 48040/16) and Mr Mashukov (no. 38376/16) were subjected to torture and inhuman and degrading treatment (see paragraph 77 above), as a result of which they gave confession statements used for their conviction. The domestic courts did not exclude those as inadmissible evidence, relying solely on the investigators' decisions not to open a criminal case into the alleged ill-treatment. The trial court did not carry out an independent and comprehensive review of the applicants' credible allegations that their confession statements were the result of police violence (see Belugin, cited above, § 81).
92. The Court further notes that, in convicting the applicants, the trial court relied on the incriminating statements of the co-defendants and several other applicants, which had been allegedly obtained under duress (see Appendix III). The Court observes that the applicants' co-defendants confessed to the crimes during the same period as the applicants, and they subsequently denied them at trial, alleging police ill-treatment. The trial court found their incriminating statements against the applicants admissible evidence, referring only to the investigators' decisions not to open a criminal investigation into the alleged ill-treatment of the co-defendants.
93. The Court reiterates that when faced with the allegations of confession statements obtained under duress, the trial court is called upon to rule not on the question of individual criminal responsibility, as in the context of a criminal investigation into police violence, but on the question of the admissibility of evidence (see Urazbayev, cited above, § 71). In its judgment of 23 December 2014 the trial court referred to the co-defendants' medical documents, which contained description of their injuries, recorded by forensic experts shortly after their respective arrests. Nevertheless, it did not carry out a separate examination of the circumstances, in which the incriminating statements had been obtained, and the authenticity and reliability of these statements. Neither did the Supreme Court of Russia address this issue on appeal, merely upholding the trial court's tenuous conclusions. The Court therefore finds that the circumstances in which the co-defendants made incriminating statements against the applicants cast serious doubts on the credibility of those statements.
94. Having regard to the above, the Court finds that the use of the confession statements of applicants Mr Akhkubekov, Mr Khulamkhanov, Mr Shavayev, Mr Kelemetov, Mr Ruslan Kuchmenov, Mr Khamukov, Mr Kudayev, Mr Pshibiyev, Mr Mironov and Mr Mashukov obtained as a result of torture and inhuman and degrading treatment, and the use of their co-defendants' and other applicants' incriminating statements rendered the applicants' trial unfair. The Court therefore dismisses the Government's argument that the applicants' confessions were not decisive for their conviction.
2. The use of confession statements of the applicants whose Article 3 complaint has been declared inadmissible
95. The Court has found that applicants Mr Berov (no. 66215/10), Mr Bapinayev (no. 43794/16), Mr Sokmyshev (no. 44927/16), Mr Aslan Kuchmenov (no. 45053/16), Mr Khupsirgenov (no. 45222/16) and Mr Khakulov (no. 46445/16) failed to comply with the six-month time-limit in respect of their complaints under Article 3 of the Convention (see paragraph 70 above). However, the Court reiterates that even in the absence of an admissible Article 3 complaint, it is not precluded from taking into consideration allegations of ill-treatment for the purposes of deciding on compliance with the guarantees of Article 6 of the Convention (see Aydýn Çetinkaya v. Turkey, no. 2082/05, § 104, 2 February 2016).
96. The Court notes that Mr Bapinayev, Mr Sokmyshev and Mr Aslan Kuchmenov had injuries recorded shortly after their arrests and detention at the Centre «T» and the UBOP premises. Applicants Mr Berov and Mr Khakulov did not submit medical records supporting their allegations of ill-treatment, but they presented photographs and witness statements indicating such ill-treatment, the authenticity of which the Government do not contest.
97. Having regard to the detailed and consistent accounts of the circumstances of the alleged ill-treatment, which correspond to the description of ill-treatment of the other applicants in respect of whom the Court has found a violation of Article 3 of the Convention (see paragraph 77 above), and the fact that the majority of the applicants and their co-defendants had confessed under duress (see paragraph 94 above), the Court finds, without prejudice to its finding under Article 3 of the Convention, that Mr Berov, Mr Bapinayev, Mr Sokmyshev, Mr Aslan Kuchmenov and Mr Khakulov made an «arguable claim» of police ill-treatment.
98. The Court notes that when finding the applicants guilty, the trial court relied on their confession statements. It also notes that the conviction was based not only on those statements, but also on the incriminating statements of their co-defendants and other applicants (see paragraphs 19, 20 and 22 above and Appendix III). In this regard, the Court observes that although Mr Khupsirgenov had not given the confession statement, the trial court relied on the incriminating statements of his co-defendants which had allegedly been obtained under duress (see paragraph 24 above and Appendix III).
99. The Court has already found that the circumstances in which the applicants and their co-defendants confessed to the crimes and incriminated each other raised doubts as to the credibility of their confession statements (see paragraph 93 above). The Court therefore finds that the use of confessions statements of applicants Mr Berov, Mr Bapinayev, Mr Sokmyshev, Mr Aslan Kuchmenov and Mr Khakulov and incriminating statements of their co-defendants given against the applicants and Mr Khupsirgenov for the conviction rendered the applicants' trial unfair.
3. Conclusion
100. The foregoing considerations are sufficient to enable the Court to conclude that the applicants' trial was unfair.
101. There has accordingly been a violation of Article 6 of the Convention in respect of Mr Akhkubekov (no. 39383/08), Mr Berov (no. 66215/10), Mr Khulamkhanov (no. 35080/11), Mr Shavayev (no. 879/13), Mr Kelemetov (no. 17322/13), Mr Ruslan Kuchmenov (no. 17325/13), Mr Bapinayev (no. 43794/16), Mr Sokmyshev (no. 44927/16), Mr Aslan Kuchmenov (no. 45053/16), Mr Khupsirgenov (no. 45222/16), Mr Khakulov (no. 46445/16), Mr Khamukov (no. 47874/16), Mr Kudayev (no. 48034/16), Mr Pshibiyev (no. 48038/16), Mr Mironov (no. 48040/16) and Mr Mashukov (no. 38376/16).
V. Other alleged violations of the Convention
A. Alleged breach of Article 3 of the Convention
1. Kudayev v. Russia (no. 4261/06)
102. The applicant complained that while being in custody between 2006 and 2014, he had suffered from hepatitis and a number of other illnesses, for which he had not received adequate medical treatment.
103. The Court took note of the applicant's medical file provided by the Government. According to it, the applicant's hepatitis test had been negative. As to his other illnesses, such as hepatic cholecystitis, chronic pancreatitis and vegetative-vascular dystonia, it transpired that the applicant had been regularly examined by doctors, a number of regular blood, urine and biological and other examinations had been carried out between 2005 and 2011, and he had received medication prescribed.
104. The Court therefore cannot accept the applicant's account of the lack of medical assistance. His allegations of defects in the quality of the medical care are not supported by sufficiently strong evidence.
105. In view of the above, the Court finds that the present complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. Kuchmenov v. Russia
(a) Complaint about the strict regime (application no. 31067/17)
106. The applicant complained that the strict imprisonment regime in IK-56 in Ivdel applied to him as a life prisoner was incompatible with Article 3 of the Convention on account of the severe and excessive statutory measures inherent in that regime aggravated by his routine handcuffing.
107. In its judgment of N.T. v. Russia (no. 14727/11, §§ 51 — 52, 2 June 2020), the Court found that the measures inherent in the strict regime for life prisoners in Russia, which included isolation, lack of outdoor exercise and purposeful activity, amounted to treatment prohibited by Article 3 of the Convention.
108. The Court notes that the circumstances of the present case are similar to those in N.T. v. Russia. Between 12 April 2016 and 19 January 2018 the applicant served his sentence in IK-56, a special facility for life convicts. He was not employed due to the lack of available jobs, allowed only ninety-minute outside exercise per day, while the rest of the time he was confined to his cell (see paragraph 39 above).
109. Taken cumulatively, the factors referred to above (in particular, the applicant's isolation and limited outdoor exercise during his life imprisonment) resulted in intense and prolonged feelings of loneliness and boredom, which caused significant distress to the applicant and due to the lack of appropriate mental and physical stimulation could result in institutionalisation syndrome, that is to say the loss of social skills, and individual personal traits (see N.T. v. Russia, cited above, § 52, and Shlykov and Others v. Russia, nos. 78638/11 and 3 others, § 95, 19 January 2021). The Court therefore finds that there has been a violation of Article 3 of the Convention on account of inhuman and degrading treatment to which the applicant had been subjected under the strict regime in IK-56.
(b) Complaint about handcuffing (application no. 40436/18)
110. The applicant complained that he had been routinely handcuffed during his transfer from IK-56 in Ivdel to IK-6 in Elban.
111. The Court reiterates that handcuffing does not normally give rise to an issue under Article 3 of the Convention where the measure has been imposed in connection with lawful detention and does not entail the use of force, or public exposure, exceeding what is reasonably considered necessary (see Kashavelov v. Bulgaria, no. 891/05, § 38, 20 January 2011).
112. The parties do not dispute that the applicant was handcuffed during his detention in the remand prisons in Yekaterinburg and Irkutsk for eight days in each facility when taken out of his cell for the ninety-minute walk (see paragraph 40 above).
113. The Court considers that the applicant's handcuffing was not used for an excessive period. While regretting that he was handcuffed for ninety minutes each day for in total sixteen days, the Court considers that it did not reach the minimum level of severity required for finding a treatment contrary to Article 3 of the Convention (see, by contrast, N.T. v. Russia, cited above, § 53, where the applicant was routinely handcuffed for more than five years, or Shlykov and Others, cited above, § 79, where the applicants were handcuffed regularly for about nineteen, seven and two years, respectively).
114. In view of the foregoing, the Court considers that the applicant's complaint under Article 3 of the Convention should be rejected as manifestly ill-founded pursuant to Article 35 § 3 (a) of the Convention.
3. Mironov v. Russia (no. 30466/08)
115. The applicant complained that the authorities' refusals to allow his lawyers to visit him in the remand prison breached the State's procedural obligation to conduct an effective investigation into his alleged ill-treatment.
116. In view of its finding under Article 3 of the Convention (see paragraph 81 above), the Court does not consider it necessary to examine this complaint separately.
B. Alleged breach of Article 8 of the Convention
117. Applicants in applications Kuchmenova and Others v. Russia (no. 20559/19) and Kugotova and Others v. Russia (no. 26399/19) complained about the allocation of applicants Mr Bapinayev, Mr Mironov, Mr Aslan Kuchmenov and Mr Mashukov to remote penal facilities irrespective of family life considerations (see paragraphs 43 and 46 above).
118. The Government submitted that on 1 April 2020 the Russian legislation concerning the allocation and subsequent transfer of convicts was amended. According to the new amendments, prisoners may be sent to serve their sentence in a penal facility in one of the regions where their close relatives reside, or in the next closest region (for the summary of the amendments see Dadusenko and Others v. Russia (dec.), nos. 36027/19 and 3 others, § 13, 30 September 2021). The Government submitted that the amended law allowed the applicants to seek remedy for their alleged violations.
119. The applicants submitted that these amendments do not extend to their situation, as they were convicted to serve life sentences.
120. The Court notes that it has already found that the amended Russian law, as interpreted by the Supreme Court, provided potential applicants with an avenue whereby all convicts, including life prisoners, could adequately vindicate their right to respect for family life (see Dadusenko and Others, cited above, §§ 27 — 29).
121. The Court therefore finds that the applicants have not availed themselves of the new judicial remedy, which is effective in respect of such complaints (see Dadusenko and Others, cited above, § 34). The applicants' complaint under Article 8 of the Convention should be declared inadmissible for non-exhaustion of domestic remedies and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
C. Alleged breach of Article 34 of the Convention
122. Applicants Mr Kudayev (no. 4261/06) and Mr Mironov (no. 30466/08) complained under Article 34 of the Convention that while they had been in custody, the authorities had allegedly interfered with their communication with the Court. In the light of all the material in its possession, the Court considers that there is insufficient factual basis to enable it to conclude that the State authorities have resorted to any undue pressure, coercion, or other actions to hinder the effective exercise of the right to individual petition. It therefore finds that the Government have not breached their obligations under Article 34 of the Convention.
VI. Application of Article 41 of the Convention
123. 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.»
124. The amounts claimed by the applicants in respect of non-pecuniary damage and costs and expenses are indicated in Appendix I.
125. The Government submitted that the applicants' claims were excessive and unsubstantiated.
126. Wherever the Court finds a violation of the Convention, it may accept that the applicants have suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations and make a financial award.
127. The Court reiterates that when an applicant has been convicted despite an infringement of his rights as guaranteed by Article 6 of the Convention, he should, as far as possible, be put in the position in which he would have had the requirements of that provision not disregarded, and that the most appropriate form of redress would, in principle, be a retrial or the reopening of the proceedings, if requested (see Öcalan v. Turkey [GC], no. 46221/99, § 210 in fine, ECHR 2005-IV). Having regard to its case-law on the matter, the Court considers that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant (see Belugin, cited above, § 88).
128. Having regard to the conclusions and principles set out above and to the parties' submissions, the Court awards the applicants the amounts detailed in Appendix I, plus any tax that may be chargeable to them on those amounts.
129. 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. Decides to join the applications;
2. Dismisses the Government's non-exhaustion objection in respect of complaints of Mr Khulamkhanov (no. 35080/11) and Mr Mironov (no. 48040/16) under Article 6 of the Convention;
3. Declares inadmissible the complaints of Mr Berov (no. 66215/10), Mr Urusov (no. 47544/10), Mr Bapinayev (no. 43794/16), Mr Sokmyshev (no. 44927/16) and Mr Aslan Kuchmenov (no. 45053/16) Mr Khupsirgenov (no. 45222/16) and Mr Khakulov (no. 46445/16) under Article 3 of the Convention concerning the alleged ill-treatment; the complaint of Mr Kudayev (no. 4261/06) concerning the lack of medical care in detention; the complaint of Mr Aslan Kuchmenov (no. 40436/18) concerning handcuffing; the complaints in applications Kuchmenova and Others v. Russia (no. 20559/19) and Kugotova and Others v. Russia (no. 26399/19) under Article 8 of the Convention concerning remote detention; and the remainder of the applications admissible;
4. Holds that there has been a violation of Article 3 of the Convention in that Mr Kudayev (no. 4261/06), Mr Pshibiyev (no. 4271/06), Mr Khamukov (no. 26591/08), Mr Malyshev (no. 547/09) and Mr Mashukov (no. 24515/10) were subjected to torture, and Mr Mironov and Ms Yerizhokova (no. 30466/08), Mr Akhkubekov (no. 39383/08), Mr Kashirgov (no. 55234/08), Mr Khubolov (no. 2619/09), Mr Khulamkhanov (no. 35080/11), Mr Shavayev (no. 879/13), Mr Kelemetov (no. 17322/13) and Mr Ruslan Kuchmenov (no. 17325/13) were subjected to inhuman and degrading treatment, and that no effective investigation into their complaints was carried out;
5. Holds that there has been a violation of Article 3 of the Convention on the account of inhuman and degrading treatment to which Mr Aslan Kuchmenov (no. 31067/17) had been subjected under the strict regime in IK-56 in Ivdel;
6. Holds that there has been a violation of Article 6 of the Convention in respect of Mr Akhkubekov (no. 39383/08), Mr Berov (no. 66215/10), Mr Khulamkhanov (no. 35080/11), Mr Shavayev (no. 879/13), Mr Kelemetov (no. 17322/13), Mr Ruslan Kuchmenov (no. 17325/13), Mr Bapinayev (no. 43794/16), Mr Sokmyshev (no. 44927/16), Mr Aslan Kuchmenov (no. 45053/16), Mr Khupsirgenov (no. 45222/16), Mr Khakulov (no. 46445/16), Mr Khamukov (no. 47874/16), Mr Kudayev (no. 48034/16), Mr Pshibiyev (no. 48038/16), Mr Mironov (no. 48040/16) and Mr Mashukov (no. 38376/16);
7. Holds that the finding of a violation of Article 6 of the Convention constitutes sufficient just satisfaction for the non-pecuniary damage sustained by the applicants indicated in point 6 above;
8. Holds that there is no need to examine the complaint of Mr Mironov (no. 30466/08) under Article 3 of the Convention about the authorities' refusal to allow his lawyers to visit him, and the applicants' complaint under Article 13 of the Convention;
9. Holds that the Government have not failed to comply with its obligations under Article 34 of the Convention in respect of Mr Kudayev (no. 4261/06) and Mr Mironov (no. 30466/08);
(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in Appendix I, plus any tax that may be chargeable to them, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the amounts indicated in Appendix I at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
11. Dismisses the remainder of the applicants' claim for just satisfaction.
Done in English, and notified in writing on 4 October 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Georgios A. Serghides President
<1> The wife of Mr Eduard Mironov (applicant no. 4).
<2> To be awarded to the applicant's wife, Ms Rusana Keshtova (born in 1984).
<3> The applicant is the wife of Mr Anzor Mashukov (applicant no. 10).
<4> The applicants are the children of Mr Anzor Mashukov (applicant no. 10) and Ms Yevgeniya Kugotova (applicant no. 25).