THIRD SECTION

CASE OF TEMERKHANOV v. RUSSIA

(Application no. 76614/12)

JUDGMENT

STRASBOURG

15 December 2022

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

In the case of Temerkhanov v. Russia,

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

Darian Pavli , President , Ioannis Ktistakis, Andreas Zünd , judges , and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 24 November 2022,

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

PROCEDURE

1. The case originated in an application against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 21 November 2012.

2. The applicant was represented by Ms D.V. Trenina, a lawyer practising in Moscow.

3. The Russian Government (“the Government”) were given notice of the application.

THE FACTS

4. The applicant’s details and information relevant to the application are set out in the appended table.

5. The applicant complained under Articles 3 and 13 of the Convention that he had been ill-treated by State agents and that the domestic authorities failed to carry out an effective investigation in this respect, and that he did not have an effective remedy in respect of his grievances. He also complained under Article 5 § 1 of the Convention about his unrecorded detention between 19 and 26 August 2011.

THE LAW

6. Following the death of the applicant in March 2018, Ms Mosku Khasanovna Temerkhanova, his mother, expressed the wish to pursue the application. The Government did not comment.

7. The Court has accepted that the next-of-kin may in principle pursue the application, provided that he or she has sufficient interest in the case (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 97, ECHR 2014) and in ensuring that justice is done, even after the applicant’s death (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000-XII).

8. Having regard to the circumstances of the present case, the Court accepts that Ms Mosku Khasanovna Temerkhanova has a legitimate interest in pursuing the application in the late applicant’s stead. It will therefore continue dealing with the case at her request. For convenience, it will, however, continue to refer to the late applicant in the present judgment.

9. The applicant complained that between 19 and 25 August 2011 he had been ill-treated by State agents and that the domestic authorities had failed to properly investigate the matter. He relied on Articles 3 and 13 of the Convention

10. Given the evidence contained in the medical documents submitted to the Court and the applicant’s consistent and detailed complaints of ill ‑ treatment before the domestic authorities, the Court finds that these complaints should have prompted the authorities to duly investigate the matter. When investigating serious allegations of ill-treatment, whether it has been inflicted by State agents or private individuals (see Sabalić v. Croatia , no. 50231/13, § 96, 14 January 2021), the authorities must be prompt and thorough and take all reasonable steps to secure the evidence, including forensic evidence (see Lyapin v. Russia , no. 46956/09, §§ 96-102, 24 July 2014; Kopylov v. Russia , no. 3933/04, § 133, 29 July 2010; and Bouyid v. Belgium [GC], no. 23380/09, §§ 114 23, ECHR 2015).

11. The investigators refused to open a criminal case into the applicant’s allegations having stated that the injuries had occurred as a result of handcuffing during the arrest. However, the documents submitted show that this explanation was neither plausible nor satisfactory and convincing.

12. Given the omissions of the pre-investigation inquiry, the authorities’ refusal to institute a fully-fledged criminal investigation into the 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 , cited above, §§ 128-40, and Samesov v. Russia , no. 57269/14, §§ 54-63, 20 November 2018).

13. In the light of the foregoing, it is proposed to find a violation of Article 3 in its procedural aspect.

14. Allegations of ill-treatment must be supported by appropriate evidence to be assessed by the standard of proof “beyond reasonable doubt” (see, among other authorities, Bouyid , cited above, § 82).

15. The medical documents submitted to the Court do not clearly and unequivocally corroborate the applicant’s account of the alleged ill-treatment (see, by contrast, Aleksandr Novoselov v. Russia , no. 33954/05, § 61, 28 November 2013). Furthermore, the applicant’s conflicting accounts on his whereabouts from 19 to 25 August 2011 do not enable the Court to rely on his version of events (see, by contrast, S.T. and Y.B. v. Russia , no. 40125/20, §§ 78 and 84, 19 October 2021).

16. In such a situation the Court finds that it has not been proven beyond reasonable doubt that between 19 and 25 August 2011 the applicant was subjected to the ill-treatment in the circumstances as alleged by him.

17. Consequently, the Court finds no substantive violation of Article 3 of the Convention.

18. Having regard to the finding of a violation of Article 3 under its procedural aspect, it is not necessary to examine the complaint under Article 13.

19. The applicant also raised a complaint under Article 5 § 1 of the Convention.

20. The Court has examined the application and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, the complaint either does not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or does not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.

21. 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.”

22. Regard being had to the documents in its possession and to its case ‑ law (see, in particular, Zagaynov and Others v. Russia [Committee], nos. 5666/07 and 4 others, 15 June 2021), the Court considers it reasonable to award the sum indicated in the appended table and dismisses the remainder of the applicant’s claims for just satisfaction.

23. The Court further 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 applicant’s heir, Ms Mosku Khasanovna Temerkhanova, within three months, the amount indicated in the appended table, 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 amount 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 15 December 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Viktoriya Maradudina Darian Pavli Acting Deputy Registrar President

APPENDIX

Application raising complaints under Article 3 of the Convention

(torture or inhuman or degrading treatment)

Application no.

Date of introduction

Applicant’s name

Year of birth

Factual information relating to arrest

Medical evidence of ill ‑ treatment

Date of first complaint

Decision issued in response to complaint of ill-treatment

Decision under Article 125 of the CCrP

Appeal decision

Information relating to conviction

Amount awarded for pecuniary and non ‑ pecuniary damage and costs and expenses

(in euros) [1]

76614/12

21/11/2012

Yusup-Khadzhi Khizriyevich TEMERKHANOV

1972Deceased on 03/08/2018

Application pursued by Mosku Khasanovna Temerkhanova

1949According to the applicant, on 19/08/2011 he was riding a taxi in Moscow when traffic police officers ordered the vehicle to pull over. While the officers were checking the driver’s documents, a group of four to five unidentified men in balaclavas and black uniforms ran up to the car and dragged him out. They handcuffed and blindfolded him and took him in their vehicle to a building situated in a forest. While in the car, one of the men administered electric shocks to the applicant’s head.

In the building the abductors, who said that they were from the Military Intelligence Service, cuffed the applicant to a pipe, undressed him and subjected him to electric shocks pressurising him to confess to the murder of Mr Yu.B. The abductors cuffed his hands and feet, stepped on his hands causing acute pain, administered electric shocks, suffocated him with a plastic bag over his head, beat him on the feet with a hard object and deprived him of sleep. The applicant lost consciousness several times. The ill-treatment lasted for four to five days. The applicant refused to confess to the murder. On the fifth day, he was given some food and clothes and allowed to sleep for several hours.

On 25/08/2011 the abductors took the applicant to a park, where they threatened to harm his family if he lodged complaints about the abduction and ill treatment. Having blindfolded and cuffed him to a tree, the abductors left. Several minutes later the police arrived; they untied the applicant, handcuffed him and took him to the police station. The officers asked the applicant whether he was ready to confess to the murder but to no avail.

On the night between 25 and 26/08/2011 the officers took the applicant to his flat and searched it. At about 9 a.m. on 26/08/2011 the applicant’s arrest record was drawn up and he was admitted to a temporary detention facility (“IVS”) and subsequently transferred to remand prison no. 2 in Moscow.

The IVS medical records of 26/08/2011: abrasions on the wrists, on the nose and left knee.

Remand prison no. 2 medical records of 07/09/2011: abrasions on the wrists.

Forensic report no. 440 ‑ 10283 of 28/09/2011: scars on the wrists which had been caused between one to two months prior to the examination. The scars could have been caused by healed wounds from handcuffing. The abrasions on the bridge of the nose and the left knee-joint could have been sustained as result of a sliding impact of a blunt object. Due to the lack of description of the state and colour of the abrasions’ surface, their exact quantity, location, form and size, it was impossible to determine neither the time of their infliction nor individual characteristics of the traumatic objects.

05/09/2011 1 st complaint to the investigative committee about the abduction by the police on 19/08/2011 and subsequent ill ‑ treatment to extort confession.

05/10/2011- refusal to open a criminal case

21/05/2012 Moscow City Court

upheld the refusal

On 07/05/2013 the Moscow City Court convicted the applicant of murder, sentence upheld on appeal by the Supreme Court of Russia, 04/12/2013

20,000

[1] Plus any tax that may be chargeable to the applicant.