CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 15 juin 2021

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RUSSIA (Application no. 48741/10)           JUDGMENT               STRASBOURG 15 June 2021 This judgment is final but it may be subject to editorial revision. In the case of Milovanov v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of:   Darian Pavli, President,   Dmitry Dedov,   Peeter Roosma, judges, and Olga Chernishova, Deputy Section Registrar, Having regard to: the application (no.   48741/10) 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 a Russian national, Mr Aleksandr Nikolayevich Milovanov (“the applicant”), on 7   August 2010; the decision to give notice to the Russian Government (“the Government”) of the complaints concerning the applicant’s ill-treatment and the use of evidence allegedly obtained under duress; the parties’ observations; Having deliberated in private on 25 May 2021, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The application concerns the applicant’s alleged ill-treatment in police custody, the alleged lack of an effective investigation into his complaint and the use by the trial court of his statements allegedly obtained as a result of duress. THE FACTS 2.     The applicant was born in 1982 and is detained in Bor, the Nizhniy Novgorod Region. He was represented by Ms O.A. Sadovskaya , a lawyer from the Committee against Torture, a non ‑ governmental organisation based in Nizhniy Novgorod. 3.     The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M.   Galperin. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s arrest and alleged ill-treatment Events of 18 and 19   June 2008 5.     At 10.05   p.m. on 18 June 2008, officers of the Federal Security Service (“the FSB”) and of the Sarov Department of the Federal Drug Control Service of the Nizhniy Novgorod Region (“the Drug Control Service”) arrested the applicant, on suspicion of drug trafficking, during a test purchase operation. Another person (who was subsequently one of his co-accused) managed to escape and was arrested later on that date. 6.     According to the statements of seven witnesses who saw the applicant on 17 and 18   June 2008, he had not had any visible injuries prior to his arrest. 7 .     According to the applicant, the officers took him out of the car, handcuffed him, and hit and kicked him in the head, body and legs. One officer hit him in the chest and groin, allegedly while planting drugs on him. 8 .     According to the official account, the applicant resisted the arrest and attempted to escape. The officers used physical force against him, forced him on to the ground and handcuffed him. At 10.30   p.m. they took him to the Drug Control Service, where they searched him in the presence of several persons including attesting witnesses, and discovered drugs on him. 9 .     According to the applicant, once the attesting witnesses had left the premises, the officers encouraged him to sign some documents. When he refused to obey, an officer handcuffed him again. Officers V. and K. of the Drug Control Service and two FSB officers severely beat him and kicked him in the head and body. Electric shocks were applied to his back and buttocks, and he was tied up and beaten on his bare heels with a baseball bat. The officers also beat him on his body with a belt. One of them threatened the applicant with a working electric drill which he brought close to his head. At some point the applicant lost consciousness, and the police officers poured water on him. Then, at about 4   a.m., the officers left him in the office handcuffed to a radiator, without food or water. 10.     On 19   June 2008 he signed some documents – which were said to be “explanations” - without having read them. He was then taken to the FSB premises and between 4 p.m. and 6.30   p.m. interviewed by an FSB officer without a lawyer being present. The applicant made a number of confession statements and was then taken back to the Drug Control Service building. 11.     At   8.50   p.m. on 19   June 2008 an investigator of the Drug Control Service drew up a record of the applicant’s arrest and interviewed him as a suspect. No lawyer was present. According to the arrest record signed by the applicant, he “regretted” having stored drugs for their subsequent transfer to one of his co-accused. On the same date the applicant signed a document stating that he had refused legal assistance “when apprehended and during his first questioning as a suspect”. He further refused to testify as a suspect. 12 .     At 10   p.m. on 19   June 2008 the applicant was transferred to the temporary detention cell of the Sarov Department of the Interior (“the IVS”) and was examined on admission. On 20   June 2008 he complained of pain and stated that he had been beaten with a truncheon and a belt by the police officers, who had also used an electric shock device. According to the records of the IVS and those of the ambulance called for the applicant on that date, he had abrasions in the breastbone region; a haematoma in the right lumbar region; an oval subcutaneous haematoma the size of an egg; and several bluish subcutaneous “ribbon-shaped” haematomas of both thighs. He was diagnosed with contusions of lower back and thighs. Questioning on 20   June and 3   July 2008 13 .     On 20   June 2008, apparently after the applicant’s injuries were recorded (see paragraph   12 above), the applicant was charged with the procurement, storage and attempted sale of drugs in particularly large quantities. He was questioned as an accused in the presence of a State-appointed lawyer. The applicant (i) confessed to having been involved in the sale of drugs between July 2007 and January 2008, describing his role as an intermediary; (ii) admitted that he had been aware of the intention of one of his co-accused to sell drugs on 18   June 2008, but insisted that he had merely been a driver and claimed that the drugs had been planted on him; and (iii)   testified that the officers had ill-treated him, and that he had requested that his injuries be recorded. On the same day a court ordered that the applicant be detained on remand. 14 .     On 3   July 2008 the applicant was questioned as an accused. He maintained his confession of 20   June 2008 in substance and stated that the officers had not put pressure on him. According to the interview record, another State appointed lawyer had been present. According to the applicant, the lawyer had been absent during the interview and had signed the record later. Forensic medical examinations 15 .     On 9   April 2009 there was a forensic medical examination of the applicant, which was commissioned by the Committee against Torture. The expert found that the multiple bruises to the applicant’s body and the abrasions on his chest (as recorded in June 2008) could have been caused by blunt objects, had not caused harm to his health, and could have been inflicted on 18 to 19 June 2008. 16 .     On 15   April 2010 a forensic medical examination commissioned by the investigators took place. The expert confirmed that in June 2008 (see paragraph   12 above) the applicant had had chest abrasions, and bruises to his back, buttocks and hips; that the injuries could have appeared as a result of the applicant’s falling on to the ground; and that they had not caused any harm to his health. The expert found no reference to injuries which “could have been related to burns” in the medical records. V.’s confession in unrelated proceedings 17 .     In the meantime, criminal proceedings were brought against Officers V. and K. of the Drug Control Service in connection with alleged ill ‑ treatment and attempts to plant drugs on a private person. In the context of those proceedings V. produced a “statement of surrender and confession” of 20 March 2009 in which he stated that he had seen his superior planting drugs in the applicant’s pocket and kicking him; and that he had seen other officers beating the applicant and applying electric shocks to him at the Drug Control Service office. Inquiry into the allegations of ill-treatment 18.     On 20   June 2008 the applicant complained of ill-treatment to the Sarov prosecutor’s office. As the case concerned the allegedly unlawful actions of officers of both the Drug Control Service and the FSB, two sets of parallel inquiries were conducted, and the case was passed several times between different investigative authorities. The inquiries can be summarised as follows. 19 .     Between 3 July 2007 and 16 April 2010 investigators of the Sarov Investigative Department issued five refusals to open criminal proceedings against the officers of the Drug Control Service. Four of the refusals were subsequently quashed as having been based on incomplete inquiries. In the last refusal, dated 16 April 2010 and upheld at final instance by the domestic courts on 12 November 2010, an investigator concluded that the officers had legitimately used physical force during the arrest as the applicant had attempted to escape. The investigator found no evidence of any duress. He cited the most recent forensic expert report and the statements of six officers of the Drug Control Service (three of whom were identified by the applicant as perpetrators), two FSB officers and the attesting witnesses. All of them, including V., denied any allegations of duress. The investigators rejected the applicant’s account of the events and V.’s confession (see paragraph   17 above) as being at variance with other evidence. 20.     Between 20   October 2008 and 21   August 2009 investigators of the Military Investigations Department of the Nizhniy Novgorod Region issued four refusals to open criminal proceedings against the FSB officers. Three of the refusals were subsequently quashed as incomplete. In the last refusal, dated 21   August 2009 and subsequently assessed as lawful by the first ‑ instance court on 11 May 2010, the investigator referred to the IVS record of the applicant’s injuries and to explanations of the alleged perpetrators (including V.), two further police officers and two attesting witnesses, who denied any allegations of duress. Criminal proceedings against the applicant 21.     During the trial the applicant pleaded not guilty, arguing that his role in the events of 18   June 2008 had been confined to driving one of the co ‑ accused to his meeting with the buyer; maintained his account of ill ‑ treatment; and applied to have his statements of 20   June and 3   July 2008 declared inadmissible. 22 .     Officers V. and K. submitted to the trial court that their superior had planted drugs on the applicant after his arrest and had hit him, and that one of the attesting witnesses was a former officer of the Drug Control Service. The court examined V.’s confession (see paragraph   17 above), as well as the material from the inquiries into the applicant’s allegations of duress (as they stood at the relevant time) and the medical record compiled at the IVS. The court heard the attesting witnesses, and three of the alleged perpetrators, (including V.’s superior) who denied any use of force against the applicant, apart from forcing him on to the ground and handcuffing him during the arrest. 23 .     On 2   December 2009 the Sarov Town Court convicted the applicant of the attempted sale of drugs in particularly large quantities as part of a group, and sentenced him to twelve years’ imprisonment. The court relied on his statements of 20   June and 3   July 2008 (see paragraphs   13 and 14 above), noting that they had been made in the presence of lawyers. The court summarily rejected his allegations of duress as unfounded, referring to the refusal to bring criminal proceedings against the FSB officers. The court also relied on submissions of the other co-accused and other witnesses; material evidence; records of searches and seizures; and audio recordings of telephone conversations concerning the sale of drugs. The court rejected V.’s and K.’s trial statements as unproven by any other material. 24 .     Following the applicant’s appeal, on 12   March 2010 the Nizhniy Novgorod Regional Court upheld the conviction, finding that the trial court had lawfully admitted the applicant’s confessions as corroborated by extensive evidence. 25.     At a later stage a judge of the Supreme Court of Russia decided to bring supervisory review proceedings pursuant to the applicant’s complaint of a violation of his defence rights during the appeal, and sent the case for examination by the Presidium of the Nizhniy Novgorod Regional Court. In the absence of an update from the parties, it appears that the appellate judgment was not quashed or amended. RELEVANT LEGAL FRAMEWORK AND PRACTICE 26.     For a summary of relevant provisions of the Police Act, the Criminal Code and the Code of Criminal Procedure of the Russian Federation, see Ryabtsev v.   Russia (no.   13642/06, §§   47-52, 14   November 2013), and Lyapin v.   Russia (no.   46956/09, §§   99 et seq., 24   July 2014). For relevant domestic law and practice concerning the rights of suspects, see Turbylev v.   Russia (no.   4722/09, §§ 46-49, 6 October 2015). THE LAW ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION 27.     The applicant complained under Articles   3 and 13 of the Convention that on 18 and 19 June 2008 he had been ill-treated by the Drug Control Service officers and that there had been no effective investigation into the matter. Articles   3 and 13 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.” Admissibility 28.     The Court notes that these complaints are not manifestly ill ‑ founded within the meaning of Article   35   §   3   (a) of the Convention and are not inadmissible on other grounds. They must therefore be declared admissible. Merits The parties’ submissions 29.     The applicant maintained his complaints. 30.     According to the Government, the applicant’s injuries might have been inflicted during the arrest. The forensic medical examination of 15   April 2010 had not revealed any bruises on his buttocks and legs. The Court’s assessment 31.     The Court observes that the applicant had not had any injuries prior to being apprehended in the evening of 18   June 2008 (see paragraph   7 above.). After spending several hours in police custody he was found to have multiple injuries, as recorded by IVS personnel and the ambulance doctors (see paragraph   12 above). According to the forensic expert, the injuries could have been inflicted between 18 and 19   June 2008 (see paragraph   16 above). The Court considers that the injuries could arguably have resulted from the violence allegedly suffered by the applicant on those dates at the hands of the police. These factors are sufficient to give rise to a presumption in favour of his account of events and to satisfy the Court that his allegations of police violence were credible. 32 .     The applicant’s allegations of ill ‑ treatment were summarily dismissed by a series of refusals to initiate criminal proceedings, each time issued as a result of the pre ‑ investigation inquiries. The Court reiterates that the mere carrying out of a pre ‑ investigation inquiry under Article   144 of the Code of Criminal Procedure of the Russian Federation is insufficient if the authorities are to comply with the standards established under Article   3 of the Convention for an effective investigation into credible allegations of ill ‑ treatment in police custody (see Lyapin, cited above, §   129). 33.     The Court has no reason to hold otherwise in the present case. A forensic medical examination took place after a two-year delay (see paragraph   16 above). The investigators’ decisions were unreservedly based on the “explanations” collected from the police officers. The domestic findings contain no explanation as to how and why, as a result of handcuffing the applicant and forcing him on to the ground during the arrest (as the official account suggests), the police officers could have injured him on the chest and back or inflicted multiple ribbon-shaped bruises to his hips. The Court further notes that the trial court’s findings were tainted with the same defects. Accordingly, the Court finds that the State failed to carry out an effective investigation into the applicant’s allegations of police violence. 34 .     Given that the Government’s explanations denying the applicant’s credible allegations of police violence were provided as a result of domestic inquiries falling short of the requirements of Article   3, the Court finds that they cannot be considered satisfactory or convincing. It holds that the Government have failed to discharge their burden of proof and produce evidence capable of casting doubt on the applicant’s account of events, which it therefore finds established in so far as it is supported by evidence. 35 .     The applicant alleged that he had been subjected to electric shocks on 18 to 19 June 2008. Having regard to the contents of the medical documents, including those compiled on the date following the alleged ill ‑ treatment (see paragraph   12 above), the Court is unable to conclude that the applicant was subjected to ill-treatment by electric shock. Having regard to the applicant’s injuries confirmed by the medical evidence, the Court finds that the applicant was subjected at the hands of the police to inhuman and degrading treatment. 36 .     The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article   3 of the Convention under its substantive and procedural limbs. 37.     In the light of the above, the Court considers that it is not necessary to examine separately the complaint under Article   13. ALLEGED VIOLATION OF ARTICLE   6 OF THE CONVENTION 38.     The applicant complained that his conviction had been based on the self-incriminating statements he had made (i)   on 19   June 2008 under duress, and (ii)   on 20   June and 3   July 2008 as a result of the ill-treatment to which he had been subjected earlier. He relied on Article   6 §§   1 and 3   (c) of the Convention, the relevant parts of which reads as follows: “1.     In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 3.     Everyone charged with a criminal offence has the following minimum rights: ... (c)     to defend himself in person or through legal assistance of his own choosing   ...” As regards admission of the self-incriminating statement of 20   June 2008 Admissibility 39.     The Court notes that the complaint concerning the use of the record of the applicant’s interview on 20   June 2008 is not manifestly ill-founded within the meaning of Article   35   §   3   (a) of the Convention and it is not inadmissible on any other grounds. It must therefore be declared admissible. Merits (a)    The parties’ submissions 40.     The applicant maintained that his statement of 20   June 2008 was inadmissible evidence as it had been obtained as a result of duress, and that his inadmissibility plea had not been subjected to thorough scrutiny. 41.     The Government submitted that the applicant’s right to a fair trial had not been breached as the impugned statement had been given in the presence of a lawyer and was consistent with other evidence. (b)    The Court’s assessment 42 .     The Court reiterates that the admission of confession statements obtained in violation of Article   3 renders the criminal proceedings as a whole automatically unfair, irrespective of the probative value of those statements and irrespective of whether their use was decisive in securing the defendant’s conviction (see Aleksandr Konovalov v.   Russia , no.   39708/07, §§   53-56, 28   November 2017). 43 .     The Court has found that the applicant was subjected to ill-treatment in police custody on 18 and 19   June 2008 (see paragraphs   34-35 above). On the following day he was questioned again as an accused, immediately after his injuries were recorded. He reiterated a substantial part of his initial confession. The Court does not consider it unlikely that at the time of the questioning he was still suffering from the effects of the ill-treatment. The Court considers that the record of 20   June 2008 of the applicant’s questioning as an accused was tainted by the applicant’s previous ill ‑ treatment by the police (see Aleksandr Konovalov , cited above, §§   13-14 and 54, and Golubyatnikov and Zhuchkov v.   Russia , nos. 44822/06 and 49869/06, §§   113-14, 9 October 2018). 44.     The statement of 20 June 2008 was then directly relied on in the conviction (see paragraph   23 above). However, the trial court failed to carry out its own independent assessment with a view to ascertaining whether there were reasons to exclude from evidence that record containing the confession statements, which had allegedly been tainted by a violation of Article   3 of the Convention. In particular, the trial court refused to take into account V.’s confession, which he had reiterated in part in a court room (see paragraphs 17 and 22 above). The court rejected V.’s statements as unreliable merely on the ground that they were in contradiction with the statements made by attesting witnesses and other police officers, including by V.’s superior, whom both the applicant and V. had identified as one of the perpetrators (see paragraphs 22-23 above). This lack of a careful assessment of the quality of the impugned evidence and the circumstances in which it was obtained was not remedied by the appellate court. The Court concludes that the use of the confession statement of 20   June 2008, together with the lack of appropriate safeguards at the trial, rendered the applicant’s trial unfair. There has accordingly been a breach of Article 6 § 1 of the Convention. As regards the statements of 19   June and 3   July 2008 45.     Having regard to the above findings, the Court considers that there is no need to examine separately the admissibility and merits of the complaint regarding the admission of statements of 19   June and 3   July 2008. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 46.     Lastly, the applicant complained under Article   6 of the Convention that he had been ineffectively represented by a State-appointed lawyer and that the domestic courts had failed to examine all the relevant facts and to assess them correctly. 47.     Having regard to all the material in its possession and in so far as the matters complained of are within its competence, the Court finds that the applicant’s complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols and must be rejected as being manifestly ill-founded pursuant to Article   35 §§   3   (a) and   4 of the Convention. APPLICATION OF ARTICLE   41 OF THE CONVENTION 48.     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.” Damage 49.     The applicant’s representative claimed 40,000 euros (EUR) in respect of non-pecuniary damage, and the applicant in a letter enclosed with his observations claimed EUR   250,000 under that head. 50.     The Government contested the amount claimed as excessive. 51.     Having regard to the violations found, the Court awards the applicant EUR   26,000 in respect of non-pecuniary damage, plus any tax that may be chargeable, and rejects the remainder of the complaint. Costs and expenses 52.     The applicant did not claim costs and expenses. Accordingly, there is no call to make an award under this head. Default interest 53.     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, Declares admissible the complaints under Articles 3 and 13 of the Convention about the applicant’s alleged ill-treatment in police custody and the lack of an effective investigation thereof, as well as the complaint under Article 6 of the Convention concerning the use in evidence of the applicant’s confession statement of 20   June 2008; Holds that there has been a violation of Article   3 of the Convention under its substantive and procedural limbs; Holds that there is no need to examine separately the merits of the complaint under Article   13 of the Convention in conjunction with Article   3 of the Convention; Holds that there has been a violation of Article   6 of the Convention on account of the use in evidence of the applicant’s confession statement of 20   June 2008; Holds that there is no need to examine separately the admissibility and merits of the complaint under Article   6 about the use in evidence of the self-incriminating statements of 19   June and 3   July 2008; Declares the remainder of the application inadmissible; Holds (a)   that the respondent State is to pay the applicant, within three months, EUR   26,000 (twenty-six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, 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; Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 15 June 2021, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   {signature_p_2} Olga Chernishova   Darian Pavli Deputy Registrar   President