THIRD SECTION

CASE OF MELNIK AND OTHERS v. RUSSIA

(Applications nos. 66619/10 and 2 others – see appended list)

JUDGMENT

STRASBOURG

31 May 2022

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

In the case of Melnik and Othersv. 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. 66619/10 and 2 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 three Russian nationals (“the applicants”), on the various dates indicated in the appended table;

the decision to give notice to the Russian Government (“the Government”) of the applications;

the parties’ observations;

Having deliberated in private on 10 May 2022,

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

THE FACTS

1. The applicants are Russian nationals who alleged, among other things, that they had been ill-treated by State officials, and that there had been no effective investigation conducted in this connection.

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

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

4 . On 14 October the officers of the Moscow Regional Department of the Federal Drug Control Service (“the FSKN”) arrested Mr Melnik on charges of drug trafficking. According to an undated report compiled by a FSKN officer, Mr Melnik had resisted the arrest and therefore the officers had had to use force and handcuff him.

5 . According to Mr Melnik, after the officers brought him to the FSKN premises they severely beat him with a truncheon, hitting his face, legs, arms and chest. The officers handcuffed Mr Melnik to a heating element and continued the beatings. After he was hit in the head, Mr Melnik lost consciousness.

6 . After his arrest Mr Melnik was brought to the detoxication unit of Naro ‑ Fominsk hospital no. 23. According to the FSKN officer’s report (see paragraph 4 above), the doctor established that Mr Melnik was under the influence of drugs, and found no visible injuries on him. According to the applicant, the doctor did not examine his injuries, and compiled the examination record in compliance with the officer’s instructions.

7 . On 15 October 2008 Mr Melnik was brought to the district hospital no.1. The doctors recorded no injuries and found that he was fit for detention. Thereafter the applicant was admitted to a temporary detention facility.

8 . On 17 October 2008 Mr Melnik developed severe headache and started vomiting. The ambulance doctors brought him to hospital no. 1, where the doctors found the following injuries: a closed craniocerebral injury, multiple bruises and abrasions on his arms, chest and legs. The hospital reported the injuries to the local police department.

9 . The doctors sent Mr Melnik to the Odintsovo District Hospital for further medical treatment. There doctors diagnosed him with multiple bruises and abrasions, and confirmed that he had a closed craniocerebral injury. He stayed in the hospital until 21 October 2008.

10 . On 16 October 2008 the applicant complained about the ill-treatment to the prosecutor’s office. On an unspecified date the authorities refused to open criminal proceedings in respect of the applicant’s allegations. On 20 February 2009 a supervising officer set aside the refusal and remitted the case for an additional inquiry.

11 . Between March 2009 and December 2011 the investigating authorities issued at least eleven refusals to institute criminal proceedings in respect of the applicant’s complaint. The investigators mainly relied on the fact that no injuries were recorded during the medical examinations of 15 October (see paragraphs 6-7 above) and on the statements of the arresting officers, who alleged that Mr Melnik had resisted the arrest. Mr Melnik complained about the refusals to the Naro-Fominsk Town Court multiple times (decisions dated 16 June 2009, 11 February, 28 April and 19 October 2010), but his claims were dismissed since at the time the decisions he complained of had already been annulled.

12 . In October 2010 an investigator requested information about Mr Melnik’s injuries from the Odintsovo hospital. They confirmed Mr Melnik’s stay in October 2008, but refused to provide his medical records, since such a request could only be made within the framework of criminal investigation and required a court’s authorization. On 29 October 2010 the inquiry in the applicant’s case had been once again discontinued.

13 . On 27 December 2010 the Naro-Fominsk Town Court rejected his complaint as unfounded. The Town Court decided that the investigative department’s decision was lawful, considering the absence of the medical documents. The court further observed that the applicant “had not complained about the injuries to the Justice of the Peace, police or a prosecutor” and that the case file did not contain any information about his medical examination in the IVS. It is unclear, whether the applicant appealed against this decision.

14. On 5 December 2008 the applicant arrived at the temporary detention facility (IVS) of the Naberezhniye Chelny Police Directorate from detention facility IK-8 where he had been serving his criminal sentence, in order to take part in the investigation of new charges pending against him.

15 . On 7 December 2008 unidentified persons took Mr Khakov out of his cell and drove him to an unidentified place. According to Mr Khakov, he was tortured by three or four persons, who urged him to confess to a crime that he had not committed. He was then raped and electrocuted with the wires attached to his genitals and buttocks. The applicant agreed to confess. The torture and the subsequent confession continued until 9 December 2008.

16. On 9 December 2008 Mr Khakov demonstrated his injuries to the investigator A. who registered his complaint of torture.

17 . On 13 December 2008 Mr Khakov was examined by a forensic expert. In his report the expert quoted the applicant’s description of events stating that on 5 December 2008 he had been ill-treated by the police officers. The expert found the following injuries: bruises around his right eye and on the lower stomach dating back no more than seven days; abrasions on both wrists dating back no more than two days; and abrasions on his knees dating back no more than four or five days. According to the applicant, the forensic expert distorted his statement as to the date of events (5 December instead of 7 ‑ 9 December 2008) and refused to document certain injuries.

18 . On 19 December 2008 the Naberezhniye Chelny Department of the Investigation Committee refused to institute criminal proceedings in respect of the applicant’s complaint of ill-treatment.

19. After that decision was annulled on 25 January 2009, a new similar refusal was issued on 7 February 2009. The investigator studied the custody records according to which the applicant had left the cell only on 6 and 9 December 2008 to see his lawyer. After analysing the forensic report and the Mr Khakov’s statements, the investigator detected contradictions between the dates and the injuries indicated in the medical examination report.

20. Mr Khakov provided two statements dated 12 January 2009 from his IVS cellmates confirming that he had been taken out of the cell in the morning of 7 December 2008 and remained absent on 7 and 8 December 2008. The authors of the statements requested to be interviewed in this respect.

21 . Another decision refusing institution of criminal proceedings in respect of the applicant’s allegation of torture was issued by the investigator on 21 May 2009. During this inquiry the investigator questioned the officers in charge of Mr Khakov’s criminal case, who denied the allegations of ill ‑ treatment. After the repeated refusals of his complaints by the Investigation Committee and Deputy Prosecutor, on 13 and 26 October 2009 respectively, Mr Khakov challenged them in court. By a decision of 19 April 2010 the Naberezhniye Chelny Town Court found both above decisions unlawful for failure to interview the applicant’s cellmates at the IVS.

22 . On 26 December 2010 the investigator again refused to institute criminal proceedings in respect of the applicant’s complaint of ill-treatment. This decision merely reiterated the previous findings. The applicant’s cellmates had not been questioned.

23. On 4 April 2008 the officers of the Sakhalin Regional Department of the Federal Drug Control Service (“the FSKN”) arrested Mr Kosenkov on charges of drug trafficking. According to the applicant, after his arrest the officers severely beat him at the FSKN premises.

24 . On 5 April 2008 the applicant was interrogated as a suspect by the investigators of the Yuzhno-Sakhalinsk Investigative Department. He complained about the beatings and requested to be examined by a medical specialist.

25 . On 5 April 2008 Mr Kosenkov was examined by a traumatologist who recorded multiple bruises on his chest and left leg. On the same day the applicant was admitted to a temporary detention facility, where the paramedics recorded bruises under both eyes, swollen nose and the lower lip, incised left eyebrow, and multiple haematomas on the body.

26. On 12 April 2008 the applicant was transferred to temporary detention facility IZ 65/1, where prison’s paramedics recorded the bruise of the soft tissue of the left side of the chest.

27 . On 17 April 2008 a forensic medical expert compiled a report of the applicant’s examination, which indicated the following injuries: a cicatrisation mark on the left eyebrow, bruises on the right infraorbital area, left leg and foot, abrasions on the right shoulder, left hand and abdomen, and a hyper-pigmentation area on the right forearm, all of which could have been inflicted within one to two weeks prior to the examination. These conclusions were later confirmed in the forensic medical report of 15 December 2008.

28 . On 25 April 2008 an investigator refused to institute criminal proceedings in respect of the applicant’s complaint of 5 April 2008. Based on the statements of the applicant and his relatives, the investigator decided that there was no sufficient evidence to open a criminal investigation. On 15 May 2008 a supervising officer annulled that refusal.

29 . Between May and June 2008 the investigator issued at least two decisions refusing to institute criminal proceedings, which were identical in substance. The refusal of 23 October 2008 included for the first time the statements of the arresting officers, who denied the allegation of ill-treatment, and those of the investigator, who conducted Mr Kosenkov’s interrogation on 5 April 2008. Between March 2009 and April 2010 the investigating authorities issued three more refusals to institute criminal proceedings. All of them were subsequently annulled by supervising officers.

RELEVANT LEGAL FRAMEWORK

30. For the relevant provisions of domestic law on the prohibition of torture and other ill-treatment and the procedure for examining a criminal complaint (see Lyapin v. Russia , no. 46956/09, §§ 96-102, 24 July 2014, and Ryabtsev v. Russia , no. 13642/06, §§ 48‑52, 14 November 2013).

THE LAW

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

32. The applicants, referring to Article 3 of the Convention, complained that they had been subjected to ill‑treatment by State officials and that the State had failed to conduct an effective domestic investigation of those incidents. Mr Melnik and Mr Kosenkov also complained under Article 13 of the Convention about lack of an effective remedy in this respect. The relevant parts of the Convention provisions read as follows:

Article 3

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

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

33. The Government argued that Mr Melnik and Mr Kosenkov had failed to exhaust all the available domestic remedies, as they did not challenge the refusals to institute criminal proceedings in respect of the alleged ill-treatment under Article 125 of the Code of Criminal Procedure. Mr Kosenkov had not appealed against the refusals to institute criminal proceedings to the domestic courts. As regards Mr Melnik, even though he complained about refusals to institute criminal proceedings to the domestic courts, he never appealed against the first-instance courts’ decisions. Since Mr Melnik and Mr Kosenkov did not make use of the available judicial procedure, according to the Government, they had failed to exhaust the available domestic remedies.

34. The applicants maintained their complaints.

35. The Court considers that the applicants acted diligently and complained about their ill-treatment promptly and without unreasonable delays (see paragraphs 10 and 24 above). Mr Melnik’s multiple complaints to the domestic courts could not be considered on merits, since the decisions complained of were annulled before the hearings even took place (see paragraph 11 above). The Court finds that in view of the numerous similar decisions not to open criminal proceedings, set aside by the supervising authorities, any further appeals would be devoid of any purpose (see Nekrasov v. Russia , no. 8049/07 , § 78, 17 May 2016). It rejects the Government’s plea of non-exhaustion of domestic remedies.

36. The applicants maintained their complaints.

37. The Government contested the claims. They also argued that Mr Khakov’s complaint was unsubstantiated, since his submissions as regards the date of the alleged ill-treatment were not coherent, and the description of the events did not correspond to the injuries found on him.

(a) Credibility of the applicants’ allegations of ill-treatment

38. The Court has already established that Mr Melnik and Mr Kosenkov were apprehended by State officers on suspicion of them having committed drug-related crimes, and Mr Khakov was in a temporary detention facility (see paragraphs 4, 13 and 22 above).

39. The Court further notes that all the applicants alleged that they had suffered ill-treatment on the hands of police officers. They provided detailed and consistent accounts of the circumstances of the alleged ill-treatment, which involved severe beatings, handcuffing, electrocuting, and even rape (see paragraphs 5, 15 and 22 above).

40. After spending various periods of time in the police custody, the applicants were found to have sustained injuries of varying degrees of severity, as recorded by doctors in hospitals and detention facilities, and, in the cases of Mr Khakov and Mr Kosenkov, confirmed by forensic medical experts (see paragraphs 8, 9, 17, and 25-27 above). The Court finds it apparent that the date of ill-treatment indicated in the report of Mr Khakov’s forensic medical examination was incorrect, and further notes that all the injuries, except for the abrasions on the wrists, could have been inflicted within the period indicated by the applicant.

41. The above factors are sufficient to give rise to a presumption in favour of the applicants’ accounts of the events and to satisfy the Court that the applicants’ allegations of ill-treatment in police custody were credible.

(b) Effectiveness of the investigation into the alleged ill-treatment

42. The Court reiterates its finding that the pre-investigation inquiry conducted under Article 144 of the Code of Criminal Procedure of the Russian Federation does not allow the authorities to conduct a proper criminal investigation in which a full range of investigative measures are carried out (see Lyapin v. Russia , no. 46956/09, § 129, 24 July 2014). In itself, a refusal by the authority to open a criminal investigation into credible allegations of serious ill‑treatment in police custody is indicative of the State’s failure to comply with its obligation under Article 3 of the Convention to carry out an effective investigation (ibid., §§ 132‑36).

43. All the applicants presented credible allegations of their injuries being the result of violence of State officers. These were dismissed by the investigating authorities as unfounded mainly because of the statements of the State officers denying the applicants’ ill-treatment (see paragraphs 11, 21 and 29 above). The investigators issued several decisions refusing to open criminal proceedings, some of which were annulled as unlawful and incomplete (see paragraphs 11, 18-22, and 28-29 above).

44. In the case of Mr Melnik, refusal to institute criminal proceedings resulted in the investigators’ inability to collect essential pieces of evidence – his medical records (see paragraph 12 above). Moreover, the authorities used the absence of medical records as a reason for finding the allegations of ill-treatment unfounded, while they could have facilitated their retrieval themselves in order to elucidate the alleged abuses (see paragraph 13 above).

45. The Court further reiterates that proper medical examinations are essential safeguards against ill-treatment (see Akkoç v. Turkey , nos. 22947/93 and 22948/93, §§ 55 and 118, ECHR 2000‑X). The Court notes that no forensic examination was conducted in respect of Mr Melnik. In addition, even though Mr Kosenkov complained about his ill-treatment immediately, his medical examination was conducted only twelve days later.

46. In case of Mr Kosenkov an investigator questioned the arresting police officers for the first time only six months after the applicant complained about the ill-treatment (see paragraph 29 above). Mr Khakov requested multiple times to interview his cell-mates, who could have confirmed the applicant’s absence from the cell for several days, which authorities never did (see paragraph 22 above). The essential evidence in Mr Melnik’s case – his medical records—was requested by the authorities only two years after he complained about the ill-treatment, and they did not take any further steps to obtain it after their request was denied.

47. In view of the foregoing, the Court finds that the authorities did not take all reasonable steps available to them to secure evidence and did not make a serious attempt to find out what had happened (see, among other authorities , Assenov and Others v. Bulgaria , 28 October 1998, § 103, Reports of Judgments and Decisions 1998 ‑ VIII, and Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000 ‑ IV). 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 it therefore finds established (see Olisov and Others v. Russia , nos. 10825/09 and 2 others, §§ 83-85, 2 May 2017, and Ksenz and Others v. Russia , nos. 45044/06 and 5 others, §§ 102 ‑ 04, 12 December 2017).

(c) Legal classification of the treatment

48. Having regard to the applicants’ injuries confirmed by medical evidence, the Court finds that the State officers subjected Mr Melnik and Mr Kosenkov to inhuman and degrading treatment. The Court finds that Mr Khakov’s allegations of being subjected to electrocution and rape were not confirmed by medical expert. However, the injuries found on him after he was ill-treated by the State officers allow the Court to conclude that he had been subjected to inhuman and degrading treatment.

(d) Conclusion

50. Lastly, the Court has examined the other complaints submitted by the applicants and, having regard to all the material in its possession and in so far as the complaints fall within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that these parts of the applications must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

51. 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.”

52. The amounts claimed by the applicants under the head of non ‑ pecuniary damage and costs and expenses are indicated in the appended table.

53. The Government contested the claims.

54. The Court awards the applicants 26,000 euros (EUR) each in respect of non ‑ pecuniary damage, plus any tax that may be chargeable on the applicants.

55. As regards legal costs claimed by Mr Khakov, the Court, taking into account the fact that the applicant had been granted legal aid, awards him EUR 500 for the costs and expenses incurred. Mr Kosenkov and Mr Melnik did not provide any documents in support of their claims for costs and expenses, and, therefore, the Court rejects their claims under this head.

56. 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 amounts indicated in the appended table, plus any tax that may be chargeable to the applicants, 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 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 31 May 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.

Case name Application no.

Lodged on

Applicant Year of Birth Place of Residence Nationality

Represented by

Non-pecuniary damage (EUR)

Costs and expenses (EUR)

Sought by the applicant

Awarded by the Court

Sought by the applicant

Awarded by the Court

1.Melnik v. Russia

66619/10

15/10/2010

Vadim Mikhaylovich MELNIK 1972 Odintsovo Russian

Oksana Vladimirovna PREOBRAZHENSKAYA

65,000

26,000

(twenty-six thousand euros)

4,350

-

2.Khakov v. Russia

7319/11

09/01/2011

Rishat Rifgatovich KHAKOV 1980 Yakutsk Russian

Yekaterina Viktorovna YEFREMOVA

100,000

26,000

(twenty-six thousand euros)

1,350

500(five hundred euros)

3.Kosenkov v. Russia

13744/11

24/12/2010

Vladimir Anatolyevich KOSENKOV 1985 Irkutsk Russian

Aleksey Ivanovich BOLSUNOVSKIY

50,000

26,000

(twenty-six thousand euros)

892-