Communicated on 21 October 2011

FIRST SECTION

Application no. 35061/04 Deni Aliyevich ABDULKADYROV and Albek Akhmetovich DAKHTAYEV against Russia lodged on 8 September 2004

STATEMENT OF FACTS

The applicants, Mr Deni Aliyevich Abdulkadyrov and Mr Albek Akhmetovich Dakhtayev , are Russian nationals who were born in 1982 and 1983 respectively and who are currently serving sentences of imprisonment in penal establishments in the Republic of Komi and Murmansk Region respectively. They are represented before the Court by Ms K. Moskalenko and Ms O. Preobrazhenskaya , lawyers practising in Moscow and Strasbourg respectively .

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

On 25 September and 19 September 2002 respectively the applicants were arrested in Grozny in the Chechen Republic and taken to Operative ‑ Search Bureau -2 of the Ministry of the Interior in the Southern Federal Circuit ( ОРБ -2 СКОУ ГУ МВД РФ по ЮФО ) . They were allegedly not informed of the reasons for their arrest. No official records of the arrests were drawn up until 30 September and 24 September 2002 respectively. Throughout this time the applicants remained without legal assistance. The applicants ’ families remained unaware of their whereabouts.

During their unacknowledged detention the applicants were allegedly ill ‑ treated and forced into making confessions.

Once the applicants ’ arrests were regularised they signed statements similar to the previous ones in the presence of investigator S. and legal-aid counsel Ts . and D. The applicants stated that they had not been subjected to any form of ill-treatment.

It appears that investigator S. and legal-aid counsel D. saw injuries on the second applicant (bruises, traces from electric wires and lumps). The second applicant explained that the bruises had been caused by a fall down the stairs. Several days later he told legal-aid counsel D. that he had received the injuries in a fight with his brother. It appears that no apparent injuries were visible on the first applicant.

Until 18 December 2002 the applicants were detained in the temporary detention centre at Operative-Search Bureau-2, following which they were transferred to the remand prison of Chernokozovo in the Naurskiy District of northern Chechnya .

After their transfer to the remand prison the applicants made their alleged beatings known to their legal-aid counsel. It appears that on several occasions complaints of ill-treatment were notified to investigator S., who refused to open a criminal investigation into the matter.

In the course of the trial, on 24 November 2003 the applicants again raised the issue of their alleged ill-treatment. In response to their complaint the Rostov Regional Court requested the Prosecutor ’ s Office of the Chechen Republic to conduct an inquiry into the applicants ’ allegations.

On 8 December 2003 investigator D. of the Leninskiy District Prosecutor ’ s Office of Grozny refused to open a criminal investigation into the applicants ’ complaints of ill-treatment for lack of evidence of a crime. The decision, in so far as it concerns the applicants, reads as follows:

“[Investigator S.] submitted that he had been in charge of the pre-trial investigation of the criminal case [against the applicants] and that the operative assistance had been provided by officers of [Operative-Search Bureau-2], including chief operative officer Yakh .

After their arrest [the applicants] were placed in the temporary detention centre at [Operative-Search Bureau-2], following which they were transferred to remand prison [impossible to read]. ... During the initial pre-trial investigation [the applicants] made no complaints about having been subjected to any unlawful methods of investigation. However, they made subsequently [relevant] complaints, which [the investigator S.] decided upon in the framework of the criminal case under investigation. On each occasion the [applicants ’ ] arguments were not objectively confirmed and it was decided [to refuse the institution of a criminal investigation]. ... [The applicants made their statements of their own free will; they were not subjected to any violence; all investigative actions were carried out with the participation of legal-aid counsel].

Legal-aid counsel Ts . submitted that she had represented [the first applicant] from 30 September 2002 until the termination of the preliminary investigation. In the course of the preliminary investigation [the first applicant] did not complain of having been subjected to unlawful methods of investigation and physical violence, and Ts . did not lodge any complaints of ill-treatment on [the first applicant ’ s] behalf with the Prosecutor ’ s Office.

...

[Chief operative officer Yakh .] submitted that ... no physical violence had been applied to [the applicants] by the officers of [Operative-Search Bureau-2], and that [the applicants] had made their statements of their own free will.”

On 9 December 2003 the presiding judge received a copy of the above decision and read it out during the trial.

The court further questioned investigator S., who was in charge of the applicants ’ case, and the attesting witness M., who had been present during several of the investigative actions in which the applicants had participated. Both S. and M. submitted that no physical force had been applied to the applicants, and that they had made all statements voluntarily and without coercion. S. admitted that when he had questioned the applicants at Operative-Search Bureau -2 they had been handcuffed to the radiator to prevent the risk of escape.

During the pleadings the presiding judge allowed the prosecutor to amend one of the charges against the applicants in so far as it concerned the date of the alleged murder of P. (from 30 May 2001 to 29 May 2001).

On 11 May 2004 the Rostov Regional Court convicted the applicants, along with another individual, of banditry, murder, assault against policem e n and illegal possession of firearms, and sentenced them to twenty ‑ five years ’ imprisonment. The applicants ’ conviction was based mainly on the defendants ’ statements given at the pre-trial investigation, the results of confrontations between the parties, records of crime scene examinations and the findings of forensic medical examinations. The court also relied on statements by prosecution witnesses and victims, which, however, did not link the applicants to the crimes they were charged with. Despite the court ’ s rulings, most of the prosecution witnesses and the victims did not attend the trial. Having regard to the social unrest in Chechnya , where the witnesses in question lived, the court used as evidence their statements obtained at the pre-trial stage. The defence witnesses were all heard during the trial and provided the applicants ’ alibis. The court, however, rejected the testimony of the defence witnesses as all of them were either relatives or friends of the applicants. The court ordered that the applicants ’ sentences should start to run from 25 September and 19 September 2002 respectively.

The applicants appealed, claiming, inter alia, that they had not been afforded an opportunity to question the prosecution witnesses and the victims, that they had been subjected to ill-treatment during the pre-trial investigation, and that during the pleadings the presiding judge had allowed the prosecutor to amend one of the charges against them, thereby violating their right to defence .

On 18 August 2004 the Supreme Court of Russia upheld the judgment on appeal and reduced the applicants ’ sentences to twenty-three and twenty ‑ four years ’ imprisonment respectively. As regards the impossibility of obtaining the attendance of prosecution witnesses and victims, the court accounted for it by the difficulty of the social situation in Chechnya . As to the alleged ill-treatment, the court held that the applicants ’ allegations had been reasonably found to be unsubstantiated. In so far as the amendment of one of the charges against the applicants is concerned, the appeal court found that the fact in question did not violate the applicants ’ right to defence since, in any event, in their statements made during the pre-trial investigation the applicants mentioned having committed this crime “approximately in the spring of 2001” and further during the trial they had denied having committed the crime in question.

In November and December 2004 the applicants were placed in strict regime correctional colonies in the Republic of Komi and Omsk Region respectively for serving their sentences. Subsequently the second applicant was transferred from the correctional colony in Omsk Region to the correctional colony in Murmansk Region.

COMPLAINTS

The applicants complained, among other matters, under Article 3 of the Convention about ill ‑ treatment in police custody and lack of effective investigation thereof, under Article 6 about use of their coerced self ‑ incriminating statements for conviction and lack of opportunity to question the witnesses against them at either stage of the proceedings, and under Article 8 about their placement in correctional facilities situated far away from their home.

QUESTIONS TO THE PARTIES

1 . Did the applicants have a fair hearing in the determination of the criminal charges against them, in accordance with Article 6 § 1 of the Convention, in view of the applicants ’ conviction being based on the evidence which was allegedly obtained as a result of the police ill ‑ treatment? Did the applicants request at the trial that such evidence should be declared inadmissible evidence? If so, what was the ground for such request and how was it decided by the domestic courts (please submit the relevant decisions, extracts of the court records and/or any other relevant documents)?

2. Were the applicants afforded an opportunity to examine the witnesses against them as required by Article 6 § 3 (d) of the Convention , either during the investigation or at the trial ? Was every reasonable effort made in order to obtain their attendance at the trial ?

3 . Have the applicant s exhausted all domestic remedies in relation to their placement to remote penitentiary facilities as required by Article 35 § 1 of the Convention? If not, what effective avenues of recourse were available to them?

4 . Does the detention of a convict in the penitentiary facility located outside his home region give rise to a “continuing situation” for the purposes of calculating the six-month rule under Article 35 § 1 of the Convention? Have the applicant s complied with the six-month rule in relation to their complaint under Article 8 of the Conventi on?

5 . Has there been an interference with the applicant s ’ right to respect for their private and family life, within the meaning of Article 8 § 1 of the Convention, in view of the decision to transfer the applicants to penitentiary facilities outside their home region and the effects that decision had on the applicant s ’ contacts with their family members? If so, did the interference in question fulfil the criteria set out in Article 8 § 2 of the Convention (see Khodorkovskiy and Lebedev v. Russia , nos. 11082/06 and 13772/05 , §§ 835-51, 25 July 2013) ? In this connection, (a) having regard to the terms of Article 73 of the Russian Code on the Execution of Sentences as it stood at the time of the applicants ’ placement for serving their sentences in November-December 2004 , was the interference in question “in accordance with law”; (b) did it pursue a legitimate aim; and (c) was it “necessary” for the pursuit of such an aim, in other words supported by relevant and sufficient reasons and proportionate?