Communicated on 7 July 2020 Published on 27 July 2020

THIRD SECTION

Application no. 37421/16 Temirlan Dukvakhayevich ESKERKHANOV against Russia lodged on 14 January 2019

STATEMENT OF FACTS

The applicant, Mr Temirlan Dukvakhayevich Eskerkhanov , is a Russian national, who was born in 1980 and lived, prior to his arrest and subsequent conviction, in Shchedrinskaya , Chechen Republic. He is represented before the Court by Ms O. Golub and Ms R. Magomedova , lawyers practising in Bryansk Region and Moscow respectively.

The circumstances of the case

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

On 28 February 2015 the Moscow City Investigative Committee opened a criminal investigation into the murder of a prominent opposition leader N. It appears that the applicant was one of the suspects.

On 7 March 2015 a group of six men broke into the flat where the applicant was staying in Moscow. They pinned him face down to the floor, kicked him in the lower back and threatened him with a gun. All the men wore masks and military uniforms without insignia. Then a group of approximately 7 to 8 men wearing civilian clothes entered the flat. They threatened the applicant urging him to confess to N. ’ s murder. Several men tread on the applicant ’ s back and head. Then they took him to another room and had him seated on the couch. They kept questioning him about N. ’ s murder. When the applicant did not respond to their questions, they hit him. After that, they handcuffed the applicant ’ s arms behind his back, put him face down in a car and took him to an office where he was questioned as a witness.

On 8 March 2015 at 1 a.m. the applicant was taken to the Investigative Committee. In the car, the men accompanying him insulted him, twisted his arms, pulled the hair out of his beard and hit him on the back. Upon arrival, he was taken to a room where he was ordered to stand facing the wall and several men hit him on the inner thighs for 10 minutes. They also threatened to rape him. Then the applicant was taken to a temporary detention centre. He was transported face down on the floor lying in the aisle between the seat rows in the car. The applicant ’ s request for medical assistance was to no avail. During the medical examination the bruises and lesions he sustained were not recorded.

On the same day the applicant was taken to the Basmanniy District Court. In the van on the way to the courthouse, the guards hit him with the machine gun on the ribs. One of the guards burnt the applicant ’ s beard. The guards insulted the applicant and threatened him. There was another detainee present in the van who witnessed the beatings.

During the hearing the judge authorised the applicant ’ s remand in custody. The applicant complained about the ill-treatment, but the judge pretended that she had not heard anything. The applicant remained in custody pending investigation and trial.

On 13 March 2015 the applicant was indicted on the charges of murder and possession of firearms.

On 17 March 2015 the applicant was transferred to remand prison SIZO ‑ 6. The doctor who examined him upon arrival noted in the medical file that the applicant had an old scar on the stomach and bruises resulting from handcuffing.

On 2 April 2015 the Committee against Torture lodged a complaint about the applicant ’ s ill-treatment in custody.

On 20 May 2015 the investigator St. refused to institute criminal proceedings in response to the applicant ’ s complaint. Having questioned the applicant, the policemen and investigators in charge of the applicant ’ s criminal case, he ruled no case to answer against the alleged perpetrators.

On 16 October 2015 the District Court upheld the decision of 20 May 2015. The final decision on the matter was taken by the Moscow City Court on 16 December 2015.

During his detention in the remand prison from 17 March 2015 to 10 October 2017, on more than fifteen occasions the applicant was transported from the remand prison to the courthouse or the investigative committee and back. On those days he normally had to wake up at 5 a.m. and had no breakfast. The trip lasted from 3 to 4 hours. The applicant was handcuffed and placed in a single compartment. The natural ventilation of the van through the hatches was insufficient and it was stiflingly hot in the summer. During the winter the vans were not heated when the engines were off. It was impossible to use the toilet during the journey. On the way back, the applicant had to spend from 7 to 8 hours in the prison van.

In the courthouse, the applicant was placed in a holding cell. The cells measured 1.5 by 1.5 m and were overcrowded, poorly lit and unventilated. The number of inmates per cell varied from 3 to 5 persons. The cells were equipped only with benches. There was no toilet or tables.

On 26 July 2016 the Moscow Circuit Military Court fixed the jury trial for 24 August 2016.

During the trial the applicant and other defendants were placed in a glass cabin.

On 29 June 2017 the jury declared the defendants guilty.

On 13 July 2017 the Military Court sentenced the applicant to twenty years ’ imprisonment and a fine. The applicant appealed.

On 10 October 2017 the Supreme Court of the Russian Federation upheld, in substance, the applicant ’ s conviction on appeal. The applicant took part in the proceedings via a video link. He was held in a metal cage during the hearing.

On 16 July 2018 the applicant was transferred to a correctional colony to serve a prison sentence.

On that day he was woken up at 6 a.m. There was no breakfast or bagged food for him. In the prison van, the applicant was placed in a compartment measuring 0.3 sq. m. There was no lighting in the van. The compartment in which the applicant was held was ventilated through three tiny hatches. There was no toilet and the applicant had to use a plastic bottle for his needs. The trip lasted some 10 hours.

At the railway station, the applicant and other inmates were placed in railway carriages. The applicant was in a compartment measuring 4 sq. m and holding 11 other inmates. The compartment was poorly lit or ventilated. There was no window. The applicant was allowed to use the toilet only once. For the rest of the time he had to use a plastic bottle. No hot meal or drinking water were provided. The inmates smoked in the compartment.

On 17 July 2018 at 7 p.m. the train reached the railway station in Mordovia Republic. The inmates were taken to the correctional colony in a van. The compartment in the van measured 6 sq. m and held 60 inmates.

At correctional colony no. IK-18 twenty inmates including the applicant were placed in a metal cage measuring 4 by 2.5 m. There were no benches and the inmates had to stand for 4 hours without a possibility to use a toilet. The applicant was held in the cage until 1 a.m. on 18 July 2018.

On 28 July 2018 sixty inmates, including the applicant, were placed in a prison van measuring 6 sq. m and taken to correctional colony no. IK-5. The trip lasted approximately 7 hours. There was no lighting or ventilation in the van. The inmates were not allowed to use the toilet. Nor were they provided with food or drinking water.

On 2 April 2019 the applicant was transferred to correctional colony no. IK-4 in Stavropol Region. On that day the applicant was woken up at 5 a.m. and placed in a cell measuring 7.5 sq. m and holding 40 inmates. There were no benches and the inmates had to stand for 11 hours. They were not allowed to use a toilet. No food was provided.

At 4 p.m. the applicant was placed in a single compartment in a prison van measuring 1.6 by 0.45 by 0.45 m. The van was not equipped with lighting or ventilation. The trip to the correctional colony lasted 5 hours.

At the correctional colony in Potma , the applicant was placed in a metal cage located outside where he was kept until 3 a.m. on 3 April 2019. Then the applicant was placed in a cell which had 12 sleeping places and housed 18 inmates. The inmates took turns to sleep.

On 10 April 2019 the applicant was taken to the railway station. He was placed in a train compartment measuring 4 sq. m and holding 18 inmates. All of them had baggage. There was no window. The inmates were not allowed to use the toilet. No food or water was provided. The inmates smoked in the compartment. The trip lasted 4 hours.

On 11 April 2019 at 3 a.m. the train arrived to Ryazan. The applicant was placed in a quarantine cell measuring 20 sq. m and holding 15 inmates. There were 10 beds and the inmates had to take turns to sleep. No bed sheets were provided.

On 14 April 2019 the applicant was transferred to Rostov- na - Donu . During the trip no hot meals or drinking water were provided.

On 15 April 2019 the applicant arrived to Rostov- na - Donu .

On 16 April 2019 the applicant was transferred to Pyatigorsk where he was held in remand prison SIZO-2.

On an unspecified date the applicant was transferred to correctional colony no. IK-4 in Aleksandriyskaya . He was transported in a prison van which was severely overcrowded. While its capacity was 30 persons, the number of inmates transported with the applicant was 40 persons. The trip lasted approximately 5 hours.

During the periods of transfer, the applicant was not allowed to do outdoor exercise, to use a shower or to do his laundry.

COMPLAINTS

The applicant complains under Articles 3 and 13 of the Convention that on 7 and 8 March 2015 he was subjected to ill-treatment in custody and that the ensuing investigation was not effective.

The applicant complains under Articles 3 and 13 of the Convention about the conditions of his transport to the courthouse and his detention there and about the conditions of his transport after conviction.

The applicant complains under Article 6 §§ 1 and 3 (b) and (c) of the Convention that he was unable to participate effectively in the judicial proceedings because of his confinement in a glass cabin or a metal cage during the hearings and the excessively intensive schedule of those hearings and inhuman conditions of his transport to and from the courthouse.

QUESTIONS TO THE PARTIES

1. As regards the events of 7 and 8 March 2015, has the applicant been subjected to torture or inhuman or degrading treatment while in custody, in breach of Article 3 of the Convention? Having regard to the procedural protection from inhuman or degrading treatment, was the investigation conducted by the domestic authorities in the present case compatible with the requirements set forth in Article 3 of the Convention (see Lyapin v. Russia , no. 46956/09, §§ 109-40, 24 July 2014) ?

The Government are requested to produce all the materials pertaining to the events between 7 and 8 March 2015.

2. Were the conditions of the applicant ’ s detention at, and transport to and from, the courthouse compatible with Article 3 of the Convention (see Idalov v. Russia [GC], no. 5826/03, §§ 91-108, 22 May 2012) ?

3. Were the conditions of the applicant ’ s tra nsport after conviction from 16 to 28 April 2018 and from 2 to 25 April 2019 compatible with Article 3 of the Convention (see Tomov and Others v. Russia , nos. 18255/10 and 5 others, §§ 114-42,9 April 2019)?

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

5. Did the applicant have a fair hearing as required by Article 6 §§ 1 and 3 (b) and (c) of the Convention? In particular, as regards the applicant ’ s confinement in a glass cabin and a metal cage during the trial and appeal proceedings, was the applicant afforded adequate time and facilities to prepare his defence and to maintain confidential communication with his counsel (see Yaroslav Belousov v. Russia , nos. 2653/13 and 60980/14, §§ 145-54 , 4 October 2016, and Razvozzhayev v. Russia and Ukraine and Udaltsov v. Russia , nos. 75734/12 and 2 others, §§ 248-55, 19 November 2019) ?