Communicated on 24 November 2020 Published on 14 December 2020

THIRD SECTION

Application no. 76614/12 Yusup-Khadzhi Khizriyevich TEMERKHANOV against Russia lodged on 21 November 2012

STATEMENT OF FACTS

The applicant, Mr Yusup-Khadzhi Temerkhanov , was a Russian national, who was born in 1972 and was detained in Omsk. On 3 August 2018 the applicant died. By letter of 30 April 2019 the applicant ’ s mother, Ms Mosku Temerkhanova , expressed her intention to pursue the application before the Court. The applicant is represented before the Court by Ms D.V. Trenina , Mr M.A. Musayev and Mr K.N. Koroteyev , lawyers practising in Moscow.

The facts of the case, as submitted by the applicant, may be summarised as follows.

Mr Yu.B ., a former Russian army colonel and a military commander in Chechnya in 2000, was killed in broad daylight in Moscow on 10 June 2011.

The applicant was suspected in having committed the murder of Mr Yu.B . At the time of the events the applicant was known as Mr Magomed Suleymanov . In the documents mentioned below he was referred to by this other name.

According to the applicant, on 19 August 2011 around 10 p.m. he took a taxi from his house to Moscow city centre where he intended to meet his friend, Mr R.T. On his way, road traffic officers ( ДПС ) stopped his taxi . While the officers checked the taxi driver ’ s documents, a group of men in masks and black uniforms approached the taxi car and dragged the applicant out. They handcuffed him and put a hat over his head covering his eyes. The men put him into a black minibus and drove away. According to the applicant, there were approximately five men in the vehicle. On the way one of the men administered electric shocks in the back of his head.

The applicant was taken to an unknown building in the forest area where he was cuffed to a pipe. The abductors undressed him and subjected him to electric shocks. He was asked to confess to the murder of Mr Yu.B . The abductors cuffed his hands and feet, stepped on his hands causing acute pain, and administered electric currents. They put a plastic bag over his head causing suffocation. He fainted on several occasions. Several times they beat his feet with a blunt object. The ill-treatment lasted for four or five days. They did not let the applicant to sleep.

The applicant refused to give any self-incriminating statements. On the fifth day of his detention, he was given some food and clothes. He was allowed to sleep for several hours. According to the applicant, some of his abductors mentioned that they were from the military intelligence service.

On 25 August 2011 late in the evening they put him in a car and took him to a park located in the south-west of Moscow. The abductors threatened to harm his family if he complained about the abduction and ill ‑ treatment. In the park the applicant was cuffed to a tree and his head covered with a hat. Several minutes after the abductors left, two vehicles with a group of four or five men arrived. They unfastened the applicant from the tree, handcuffed him and put him into their car. According to the applicant, they were police officers. They asked him whether he was ready to confess to the murder. The officers threatened the applicant to return him to the men who had abducted him. The applicant refused to confess.

On the night of 26 August 2011 the officers brought the applicant to his apartment and searched his place.

On 26 August 2011 at about 9 a.m. the applicant ’ s arrest record was drawn up. The applicant was admitted to a temporary detention facility (“IVS”). According to its medical notes, the applicant had abrasions on his wrists, on his nose and left knee.

On 5 September 2011 the applicant ’ s lawyer complained to the investigation department of Moscow about the applicant ’ s apprehension on 19 August 2011 and ill-treatment. He also requested the applicant ’ s medical examination.

On 7 September 2011 the applicant was admitted to remand prison no. 2 in Moscow. According to its medical notes, he had abrasions on his wrists.

On 15 September 2011 the investigator ordered the applicant ’ s forensic medical examination. On 23 September 2011 the applicant was examined by a forensic doctor.

On 28 September 2011 the expert issued report no. 440-10283, citing the applicant ’ s medical notes drawn up in IVS and the remand prison.

The expert concluded that the applicant had scars on his wrist joints caused within at least one month and not more than two months. She noted that the scars could have resulted from healed wounds caused by handcuffs. His abrasions on the bridge of his nose and his left knee-joint could have resulted from 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 and location, their forms and size, it was impossible to determine the time when they had been inflicted and individual characteristics of traumatic objects.

On 5 October 2011 the investigator refused to open a criminal case into the applicant ’ s alleged kidnapping and ill-treatment.

The refusal contained the applicant ’ s detailed description of the abduction and ill-treatment. It also contained the explanations of Mr V.L., a taxi driver. According to him, on 19 August 2011 the road officers stopped his car and asked for documents. They asked him to go out of the car and while they were checking the documents, someone grasped his neck, took him several meters away from his car and told him not to move. The persons introduced themselves as officers of a department against organised crime. They asked the driver about the applicant and told him not to tell anyone about the events and that if anyone asked, Mr V.L. was supposed to say that he had dropped the applicant near the hotel. According to Mr V.L., when the group left, the applicant was not in the car. He did not see or hear whether any force had been applied to the applicant.

According to the explanations of Mr F.R. and Mr P.A., concierges in the applicant ’ s house, on 26 August 2011 after midnight a group of policemen arrived with the applicant who was handcuffed. The policemen asked to turn off video recording in the house and went to the applicant ’ s flat. They did not see any visible injuries on the applicant. They did not see the applicant between 19 and 25 August 2011.

According to the explanations of Mr R.T., the applicant ’ s friend, on 19 August 2011 at around 11 p.m. he called the applicant. During the conversation, Mr R.T. heard some noise, screams and then the sound of a falling telephone. He tried to reach the applicant several times but to no avail. The applicant did not come to the meeting and Mr R.T. has not seen him or heard from him afterwards.

According to the explanations of the head of the criminal investigation service of Moscow ( УУÐ ГУ МВД по г . Москва ) and its officers, the applicant was suspected of committing the murder of Mr Yu.B . In the evening of 25 August 2011 they received information that the applicant ’ s mobile phone was detected in the area of the park where they later found the applicant. According to the officers, during the arrest the applicant tried to escape. The handcuffs were used. No physical violence was used against him.

The decision referred to the applicant ’ s medical notes and the forensic report . The investigator concluded that the applicant ’ s injuries had been caused by handcuffs during the arrest.

Dismissing the applicant ’ s complaint a bout his abduction on 19 August 2011, the investigator concluded that the persons who had stopped the applicant ’ s taxi car were unidentified persons who had imitated the actions of road traffic officers.

The investigator concluded that there was no evidence of crime under Articles 126 (kidnapping) and 286 (abuse of power) of the Criminal Code (“the CC”).

On 31 October 2011 the applicant challenged the refusal before the Presnenskiy District Court.

On 4 April 2012 the Presnenskiy District Court dismissed the applicant ’ s complaint against the refusal as unfounded and endorsed the investigator ’ s reasoning.

On the same day the applicant appealed against the court decision.

On 21 May 2012 the Moscow City Court dismissed the applicant ’ s appeal finding that the refusal was lawful .

On 7 May 2013 the Moscow City Court convicted the applicant of murder of Mr Yu.B ., relying on witness statements and other material evidence.

On 4 December 2013 the Supreme Court of Russia upheld the conviction.

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 Ryabtsev v. Russia , no. 13642/06 , §§ 48 ‑ 52, 14 November 2013, and Lyapin v. Russia , no. 46956/09, §§ 96-1 02, 24 July 2014 .

COMPLAINTS

The applicant complains 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 complains under Article 5 § 1 of the Convention about his unrecorded detention between 19 and 26 August 2011.

QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to torture or inhuman or degrading treatment, in breach of Article 3 of the Convention?

2. Having regard to the procedural protection from torture and inhuman or degrading treatment (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of the requirements under Article 3 of the Convention?

3. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention between 19 and 26 August 2011? Was such detention compatible with the guarantees of Article 5 §§ 1-5 of the Convention?

4. D id the applicant have at his disposal an effective domestic remedy for his complaint under Article 3, as required by Article 13 of the Convention?