THIRD SECTION

CASE OF TOPAL AND OTHERS v. RUSSIA

(Applications nos. 61504/10 and 2 others – see appended list)

JUDGMENT

STRASBOURG

14 June 2022

This judgment is final but it may be subject to editorial revision.

In the case of Topal and Others v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

Darian Pavli, President, Andreas Zünd, Mikhail Lobov, judges, and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the applications (nos. 61504/10, 9247/15 and 30131/17) 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 four applicants whose details are listed in the Appendix (“the applicants”);

the decision to give notice to the Russian Government (“the Government”) of the applications concerning the ill-treatment and death in custody of the applicants’ relatives;

the decision by the Moldovan Government not to exercise their right to intervene in the proceedings (Article 36 § 1 of the Convention);

the parties’ observations;

Having deliberated in private on 24 May 2022,

Delivers the following judgment, which was adopted on that date:

THE FACTS

1. The applicants are Russian and Moldovan nationals, who alleged that their relatives had died in custody following their ill-treatment by State agents.

2. The Government were initially represented by Mr M. Galperin, former Representative of the Russian Federation to the European Court of Human Rights, and later by his successor in this office, Mr M. Vinogradov.

3. The facts of the case may be summarised as follows.

4. The application was lodged by Ms O. Topal and Ms N. Topal, mother and sister of Mr Topal, who was arrested in Moscow on 9 October 2008 and placed in detention in remand prison IZ-77/2.

5. On 1 November 2008 Mr Topal complained to the Federal Security Service (the FSB) about receiving threats from the arresting officers. According to the applicants, on 6 November 2008 Mr Topal’s lawyer lodged a similar complaint with the authorities, but no reply followed.

6. On 9 November 2008 Mr Topal was found dead with numerous cuts on his neck and forearms in a bathroom in IZ-77/2. No weapon was found near the body.

7 . The post-mortem examination, carried out on 17 December 2008, found the following injuries: fracture of the hyoid bone inflicted between 12 and 20 hours prior to the death, bruises on the face and back, three cuts on the left side of the neck, and a cut on each wrist, which had caused his death. Mr Topal had died between 24 and 36 hours prior to the discovery of his body.

8. On 19 November 2008 an investigator refused to open a criminal case into Mr Topal’s death. The decision stated that that the wrist cuts, which had caused Mr Topal’s death, had been self-inflicted. According to the statements of Mr Topal’s cellmates, he had not been subjected to any physical or psychological pressure by the prison administration. On 23 December 2008 the investigator’s superiors overruled the refusal and ordered an additional inquiry into the matter. On 26 December 2008 and then on 19 January 2009 the investigators again refused to open a criminal case, having concluded that Mr Topal’s death had been result of a suicide.

9. The applicants appealed against the refusal of 19 November 2008 to the Tverskoy District Court in Moscow, which on 19 June 2009 discontinued the proceedings as the impugned decision had already been quashed by the investigators’ superiors.

10. On 11 December 2009 the Tverskoy District Court dismissed the applicants’ appeal against the refusal of 26 December 2008 as unfounded. That decision was quashed on 29 March 2010 by the Moscow City Court which remitted the case for a new examination. On 22 April 2010 the District Court discontinued the proceedings. On 20 May 2010 the investigators again refused to open a fully-fledged investigation into Mr Topal’s death.

11. The applicant is the wife of Mr Shaposhnikov, arrested on 2 October 2011 by the police for committing an administrative offence and taken to the Koverninskiy police station in the Nizhniy Novgorod Region. On 4 October 2011 he was released, but on the following day, 5 October, after a fight with his wife and her brother L., Mr Shaposhnikov was again arrested and taken to the same police station.

12. On 6 October 2011 officers at the station called an ambulance for Mr Shaposhnikov, which arrived and found him dead.

13 . On 25 October 2011 the post-mortem examination found that Mr Shaposhnikov’s death had occurred due to a closed injury to the head which had been sustained from one to three days prior to the death. The examination also found abrasions on the forearm and the right hand inflicted at around the same time. Similar findings were made in the subsequent examinations of his body carried out on 24 November 2011 and 18 May 2012.

14 . Two examinations carried out on the basis of the medical records and the case file on 22 May and 3 July 2012 respectively found additional injuries: bruises on both eyes, the bottom lip, and the forehead. As for the head injury, it consisted of two haematomas: one inflicted between one and two weeks prior to the death, and the other between one and three days to the death.

15 . Another examination carried out by a group of experts on 20 November 2015 confirmed the findings of the previous examinations. However, it concluded that the head injury had been inflicted between ten and fourteen days prior to Mr Shaposhnikov’s death, along with the bruises on the right eye, and abrasions on the right hand and the forearm.

16 . On 5 November 2011 the investigators refused to open a criminal case into Mr Shaposhnikov’s death. According to the decision, the inquiry had been carried out into “negligence when executing official duties” and focused on assessing whether the officers had properly supervised detainees. The possibility of their involvement into Mr Shaposhnikov’s death had not been examined. On 26 December 2011 this refusal was quashed by the investigators’ superiors.

17 . On an unspecified date the authorities opened a criminal case and charged the applicant’s brother Mr L. with infliction of injuries which caused Mr Shaposhnikov’s death in custody. On 2 November 2012 the investigation of that criminal case was discontinued, as the Koverninskiy District Court in the Nizhniy Novgorod Region acquitted Mr L. for the lack of evidence.

18 . Following three more inquires which resulted in refusals to open a criminal case into Mr Shaposhnikov’s death, on 23 December 2016 the District Court convicted Mr I., a friend of Mr Shaposhnikov, of inflicting during a fight in September 2011 the injuries which subsequently caused the latter’s death.

19. On 1 February 2012 the applicant’s brother, Mr Drozdov, was arrested in Kazan for a misdemeanour and taken to police station no. 4. According to the Government, at the station Mr Drozdov “behaved loudly”, and the officers decided to tie him up. Five police officers pinned him down to the ground, kicked him in the stomach, and tied his hands and feet together behind the back – a stress position known as “the swallow”. The officers left Mr Drozdov tied in that position. Twenty minutes later, they noticed that he was not moving. They called the ambulance which recorded his death upon arrival.

20 . On 2 February 2012 the post-mortem examination of Mr Drozdov’s body concluded that he had died of pancreatitis complicated by pulmonary and cerebral oedema. The report indicated that numerous bruises on his hands, wrists, fingers, forearm and elbow had no connection with his death.

21. On 1 March 2012 the investigators refused to open a criminal case into Mr Drozdov’s death, having found that the officers had lawfully used the force against him. On 21 June 2012 this refusal was quashed by the investigators’ superiors as the investigators had failed to interview a medical specialist about the medical condition which had caused Mr Drozdov’s death. Two more refusals to open a criminal case were issued between March and October 2012 and each one was quashed by the investigators’ superiors for the same reasons.

22 . On 29 October 2012 the investigators opened a criminal case into Mr Drozdov’s death. Between August 2013 and May 2016 on at least three occasions the authorities terminated the criminal proceedings, each time finding that the officers had acted lawfully.

23. On 3 August 2017, upon yet another reopening of the criminal case, the police officers were charged with abuse of power on account of Mr Drozdov’s ill-treatment, but not on account of causing his death. On 29 November 2017, as upheld on appeal on 23 January 2018, the Kirovskiy District Court in Kazan found the officers guilty as charged and sentenced them to various terms of suspended imprisonment. The court noted that the use of force by the officers was incompatible with the prohibition of ill ‑ treatment and torture.

24. The applicant, Mr S. Drozdov, lodged a civil claim against the Ministry of the Interior seeking compensation of non-pecuniary damage. On 15 May 2018 the Kirovskiy District Court awarded him 10,000 roubles (RUB) (approximately 120 euros (EUR)). The amount of the compensation was increased on appeal to RUB 50,000 (EUR 600).

RELEVANT LEGAL FRAMEWORK AND PRACTICE

25. For a summary of the domestic law concerning procedure for a pre‑investigation inquiry and a criminal investigation, see Lyapin v. Russia , no. 46956/09, §§ 99-102, 24 July 2014.

THE LAW

26. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

27. The applicants, referring to Articles 2 and 3 of the Convention, complained that their relatives had been ill-treated and deprived of their lives while in custody, and that no effective investigation had been carried out into the matter. The relevant parts of Articles 2 and 3 of the Convention provide:

Article 2

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law ...”

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment ...”

28. The Government argued that Mr S. Drozdov, the applicant in application no. 30131/17, lost victim status in the proceedings before the Court, since the investigation into his brother’s ill-treatment had identified and punished the individuals responsible. In addition, the applicant successfully claimed compensation for non-pecuniary damage.

29. The applicant submitted that the police officers were only convicted of “abuse of power” and sentenced to light punishments, while the circumstances surrounding the death of his brother had not been thoroughly investigated.

30 . Even though the authorities acknowledged that Mr Drozdov had been subjected to ill-treatment contrary to Article 3 of the Convention, the compensation awarded by the domestic courts was clearly insufficient to constitute appropriate redress within the meaning of the Convention (see Vladimir Romanov v. Russia , no. 41461/02, § 78, 24 July 2008), and the suspended sentences of the police officers were manifestly disproportionate to the gravity of the acts committed by them (see Barovov v. Russia , no. 9183/09, §§ 41-45, 15 June 2021). In addition, Mr Drozdov’s death and the alleged violation of Article 2 of the Convention still remain to be examined. Accordingly, the Government’s objection must be dismissed.

31. The Court further notes that 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.

32 . All the applicants maintained their complaints as regards the authorities’ failure to conduct an effective investigation. In addition, Ms Shaposhnikova, the applicant in case no. 9247/15, admitted that the medical evidence did not support the version of Mr Shaposhnikov’s ill ‑ treatment in police custody. She, nonetheless, upheld the complaint regarding the alleged ineffectiveness of the investigation into the matter.

33. The Government submitted that Mr Topal had died as a result of self ‑ inflicted injuries. As regards Mr Drozdov, they argued that the unlawful actions of the police offices, for which they had been convicted, had not caused Mr Drozdov’s death.

34. The relevant general principles on the substantive obligations under Articles 2 and 3 of the Convention can be found in Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-90, ECHR 2015), and Lykova v. Russia (no. 68736/11, §§ 113-19, 22 December 2015), and on the procedural obligations, in Güzelyurtlu and Others v. Cyprus and Turkey ([GC], no. 36925/07, §§ 218 ‑ 19, 29 January 2019).

(a) Substantive aspect of Articles 2 and 3 of the Convention

(i) Mr Shaposhnikov

35. The Court notes that the case file contains a number of medical examination reports assessing Mr Shaposhnikov’s injuries and their connection with the cause of his death (see paragraphs 13-15 above). Since the conclusions of these reports did not support the version that the applicant’s husband had been ill-treated in custody (see also Ms Shaposhnikova’s submission before the Court in paragraph 32 above), and considering that he had been involved in a fight shortly before his arrest, the Court cannot conclude beyond reasonable doubt that Mr Shaposhnikov’s injuries and death were result of his ill ‑ treatment at the hands of the police (see, for similar reasoning, Khismatullin v. Russia , no. 33469/06, §§ 58-60, 11 December 2014). Consequently, the Court finds no substantive violation of Articles 2 and 3 of the Convention in respect of Mr Shaposhnikov.

(ii) Mr Topal and Mr Drozdov

36. The applicants’ relatives, Mr Topal and Mr Drozdov, were found dead at the police station and the pre-trial detention facility, respectively, where they had been detained by the authorities. The Court reiterates that where the events lie within the exclusive knowledge of the authorities, as in the case of the death of a person in custody, the burden of proof is on them to provide a satisfactory and convincing explanation of the causes of the detained person’s death (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000 VII).

37. Prior to his death, Mr Topal sustained various injuries the origins of which were not convincingly explained by the authorities (see paragraph 7 above). Moreover, considering the location and nature of the cuts, and the fact that no blade was found next to his body, the Court does not find the explanation that Mr Topal had committed suicide plausible. That explanation is further undermined by the fact that his death was reported by the facility’s administration in more than a day after he died.

38. As regards Mr Drozdov, the domestic courts established that the injuries found on him were the result of ill-treatment by the police officers. Having excluded the ill-treatment as the cause of death, the authorities provided no explanation concerning the reasons for Mr Drozdov’s demise in police custody. While it is contested whether the injuries sustained by Mr Drozdov were linked to his death, the expert did not exclude such a possibility (see paragraph 20 above). In this regard the Court reiterates that the responsibility of the State under Article 2 of the Convention is not confined to cases in which there exists significant evidence that the use of force by State agents has, or could have, directly caused the death of a person (see Dimitrov and Others v. Bulgaria , no. 77938/11, § 131, 1 July 2014, with further references).

39. Given the lack of any convincing explanation for the victims’ injuries capable of refuting the strong presumption that the deaths of Mr Topal and Mr Drozdov occurred as a result of the State officials’ actions, the responsibility for their death in detention lies with the respondent State’s authorities. Considering that their injuries were serious enough to trigger the application of Article 3 of the Convention, the Court finds it established that prior to their death Mr Topal and Mr Drozdov were subjected to treatment contrary to Article 3 of the Convention (see Karpylenko v. Ukraine , no. 15509/12, § 122, 11 February 2016).

40. There has accordingly been a violation of the substantive aspect of Articles 2 and 3 of the Convention in respect of Mr Topal and Mr Drozdov.

(b) Procedural aspect of Articles 2 and 3 of the Convention

41. The obligation to carry out an effective investigation into allegations of treatment infringing Articles 2 and 3 of the Convention in the hands of State agents is well established in the Court’s case‑law (see Giuliani and Gaggio v. Italy [GC], no. 23458/02, §§ 298-306, ECHR 2011 (extracts), and Bouyid , cited above, §§ 114-23).

42. The Court finds it striking that the domestic authorities found it unnecessary to initiate a fully-fledged criminal investigation into Mr Topal’s death notwithstanding its suspicious circumstances, in particular considering the fact that prior to his death Mr Topal received threats, that the prison’s administration reported his death in more than a day after it had occurred, and that no blade was found near his body. To this end, the Court reiterates that a pre-investigation inquiry alone is not capable of leading to punishment of those responsible when it comes to the credible allegations concerning the ill ‑ treatment by State agents (see Lyapin v. Russia , no. 46956/09, § 135, 24 July 2014), and is even more important when the situation concerns death in custody.

43. As regards the investigation of the criminal case into Mr Drozdov’s ill-treatment, it was opened eight months after the events in question and after at least four refusals to initiate a fully-fledged investigation (see paragraphs 20-22 above). In the case of Mr Shaposhnikov, the criminal proceedings were instituted more than one month after his death (see paragraphs 16-17 above). Such delays are unjustified and clearly contradict the requirement of promptness of investigation (see Bouyid , cited above, § 121). Moreover, both investigations lasted for at least five years, during which they were suspended and resumed on numerous occasions (see paragraphs 17-18 and 22).

44. As regards Mr Shaposhnikov’s death, for which several forensic medical examinations found that his injuries could have been inflicted while he had been in detention (see paragraphs 13-14 above), the investigators failed to consider the possibility of the police officers’ involvement in his death, limiting themselves to assessing the latter’s compliance with their duties (see paragraphs 16 and 18 above). In addition, even though the authorities convicted Mr I. for the infliction of lethal injuries, the origin of the injuries which had occurred subsequently remained unelucidated. The Court reiterates in this respect that it is expected of national authorities that they pursue all possible leads to establish the circumstances in which a person had died, in order to comply with their procedural obligations under Articles 2 and 3 of the Convention (see Jelić v. Croatia , no. 57856/11, § 86, 12 June 2014, with further references).

45. Having regard to the above considerations, the Court concludes that the authorities failed to carry out a thorough and effective investigation into the ill-treatment and death of the applicants’ relatives.

46. There has accordingly been a violation of the procedural aspect of Articles 2 and 3 of the Convention in respect of Mr Topal, Mr Shaposhnikov and Mr Drozdov. In the light of this finding, the Court considers that it is not necessary to examine whether there has also been a violation of Article 13 of the Convention in respect of Mr Topal.

47. 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.”

48. The applicants in the case of Mr Topal (no. 61504/11) claimed 120,000 euros (EUR) jointly in respect of non-pecuniary damage. Ms Shaposhnikova (no. 9247/15) and Mr S. Drozdov (no. 30131/17) left the amount of non-pecuniary damage to the Court’s direction. No other claims were made under this head.

49. The Government contested the claims as unsubstantiated and excessive.

50. The Court awards compensation for non-pecuniary damage in the amount of EUR 65,000 jointly to the applicants in the case of Mr Topal (no. 61504/11), and EUR 26,000 to Ms Shaposhnikova (no. 9247/15), plus any tax that may be chargeable to them on those amounts. Having regard to the compensation received by Mr S. Drozdov (no. 30131/17) in the domestic proceedings, the Court awards him non-pecuniary damages in the amount of EUR 64,400 plus any tax that may be chargeable to him on that amount.

51. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a) that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 65,000 (sixty-five thousand euros) jointly to the applicants in the case of Mr Topal (no. 61504/10), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 26,000 (twenty-six thousand euros) to Ms Shaposhnikova (no. 9247/15) and EUR 64,400 (sixty-four thousand four hundred euros) to Mr S. Drozdov (no. 30131/17), plus any tax that may be chargeable to those amounts, in respect of non-pecuniary damage;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 14 June 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova Darian Pavli Deputy Registrar President

APPENDIX

List of cases:

No.

Application no.

Case name

Lodged on

Applicant Year of Birth Place of Residence Nationality

Represented by

1.

61504/10

Topal v. Russia

19/10/2010

1) Ms Olga Zakharovna TOPAL 1956 Chishinau Moldovan 2) Ms Natalya Savelyevna TOPAL 1984 Kazakliya Moldovan

Mr Grigor AVETISYAN

2.

9247/15

Shaposhnikova v. Russia

12/02/2015

Ms Yelena Sergeyevna SHAPOSHNIKOVA 1976 Kovernino Russian

Ms Yekaterina VANSLOVA

3.

30131/17

Drozdov v. Russia

17/04/2017

Mr Sergey Anatolyevich DROZDOV 1968 Kazan Russian

Mr Igor Nikolayevich SHOLOKHOV