CEDH · CASELAW;COMMUNICATEDCASES;ENG — 16 mars 2012

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s3E839E41 { margin-top:12pt; margin-bottom:30pt; text-align:center } .s58ABC179 { margin-top:30pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s11869A80 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s401C450A { margin-top:12pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s684F2214 { margin-top:18pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s25BD2B45 { margin-top:24pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s984A15CA { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sD5DF731 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sEC177689 { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s4070A5A6 { margin-top:36pt; margin-bottom:24pt; text-align:center; page-break-after:avoid } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sCDABDDB1 { margin-top:24pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } FIRST SECTION Application no. 20544/07 Magomed Khalit Ruslanovich TSECHOYEV against Russia lodged on 3 May 2007 STATEMENT OF FACTS   The applicant, Mr Magomed Khalit Ruslanovich Tsechoyev, is a Russian national who was born in 1974 and is currently serving a sentence of imprisonment in the town of Pyatigorsk, the Stavropol Region. He was represented before the Court by Mr Ph. Leach and Mr B. Bowring, lawyers practising in London, and Mr G. Avetisyan and Ms E. Davudyan, lawyers of the Memorial Human Rights Centre practising in Moscow. The facts of the case, as submitted by the applicant, may be summarised as follows. A.     The background of the case On 21 and 22 June 2004 the town of Nazran came under attack by a organised group of armed insurgents, which left 78 persons dead and 113 wounded. B.     The applicant’s arrest and subsequent events 1.     The applicant’s arrest and the events of the next few days On 2 August 2004 at around 2 p.m. the applicant was arrested at his place of work, an industrial warehouse of a private company, in the town of Magas of the Republic of Ingushetiya. The applicant worked as a security guard. It appears that the arrest was organised by the Russian security services. Having hooded the applicant, the officers forced him into their vehicle. The applicant identified two persons among those involved in the arrest as Mr Ka and Mr Ku, apparently the applicant’s former acquaintance. The applicant was moved to an unidentified location in a building without windows, presumably in a basement. He was requested to explain where he had been in the night of 21 and 22 June 2004. The applicant explained that he had been at his workplace. Thereafter he was severely beaten with rubber truncheons in the area of his liver, kidneys and on his head. The applicant was also subjected to asphyxiation with a plastic bag and ill-treatment with an application of electrical discharges. The authorities requested the applicant to confess in his participation in the recent attack on Nazran, which he refused to do. The applicant fell faint several times during this interview. The applicant was kept in detention for a few days, during which he was constantly ill-treated. As a result, he had experienced difficulties in recalling the exact number of days spent in detention. The authorities then tricked the applicant into signing the pre-prepared papers which contained his confession. They first announce that they would release him and proposed to sign the papers, which the applicant failed to read. At some point Mr Ku approached the applicant and strongly urged him to cooperate with the authorities, to memorise his pre-prepared confession and to retell it to the investigator later on. The applicant decided to follow this advice by obeying the officers. 2.     The detention hearing of 4 August 2004 On 4 August 2004 the applicant was brought before a judge of the Nazran District Court who authorised his detention on remand. The applicant was charged with crimes under Articles 205 § 2 (terrorism), Article 209 § 3 (participation in a stable armed formation), Article 222 § 3 (arms trafficking) and Article 317 (use of violence against State officials) of the Criminal Code of Russia in connection with the alleged participation in the attack of 21-22 June 2004. Thereafter the applicant admitted his involvement in the attack in question and maintained his earlier confessions. It appears that during the hearing the applicant was accompanied by a legal aid lawyer Ch. After the hearing in the Nazran District Court the applicant was brought to the building of the Ministry of the Interior of the Republic of Ingushetiya. The interrogative officers demanded him to confess yet again. Having faced the refusal, the applicant had his arms handcuffed and twisted behind his back. The officers then passed a wooden stick through the applicant’s armpits and hanged him between two office safe boxes. The applicant was then beaten with rubber truncheons and butts of automatic rifles. He was again subject to an asphyxiation with a plastic bag and had electric discharges applied to his body. As a result, the applicant signed all the papers provided by the police. It appears that, among other things, he signed a statement which implicated in the attack his former neighbour AT, who was later one of the co-defendants in the criminal case against the applicant and whom the applicant had not seen in two years. Thereafter the applicant was taken to the temporary detention ward of the Ministry of the Interior of the town of Vladikavkaz. 3.     The detention in the IVS of Vladikavkaz During the next two days a number of police officers paid visits to the applicant, seeking to extract further confessions from the applicant. The applicant was beaten and threatened with adverse consequences for his family members in case he resisted. Eventually the applicant gave evidence implicating his friends. The applicant identified two of the participants as Mr I. Ba. And Mr Dz. The meetings took place in an interrogation room of that facility. 4.     The detention in an identified location in Nazran Several days later the applicant was transported to Nazran. He was again seriously and continuously beaten. Over the next three weeks the applicant was frequently transferred from Vladikavkaz to Nazran. At some point, he had to participate in face-to-face confrontations with a co-accused Mr A. P. Under the pressure from Mr I. Ba. and Mr Dz., the applicant agreed to give the evidence required by the investigation and agreed with everything that was stated by Mr A. P. Likewise, during his face-to-face confrontation with Mr A. Ts. the applicant was under the pressure from Mr I. Ba. and Mr Dz. and confirmed his earlier self-incriminating statements. It appears that after the confrontations the applicant orally made a complaint to some unspecified investigators (presumably, non coming from local law enforcement agencies) and the lawyer of Mr A. Ts. about the ill-treatment and more generally the methods used by the investigation. On 28 August 2004 the investigation of the case was completed and as of 31 August 2004 the applicant had access to the bill of indictment. C.     The attempts of the applicant’s family to locate him The applicant’s mother started to look for him immediately after his arrest on 2 August 2004. On 3 August 2004 she requested information on his whereabouts from the Prosecutor’s office of the Republic of Ingushetiya. The Prosecutor’s office replied to her on 12 August 2004, informing her about his detention in remand prison of the town of Vladikavkaz. On 13 August 2004 she paid a visit to that remand prison. The prison administration denied having had her son in custody on that day. On the same day, the applicant’s family also paid a visit to a remand prison in the town of Nazran. The respective prison administration also denied having had her son in custody on that day. The applicant’s family could not find him at least for the next one month and a half. On 15 September 2004 the applicant’s then legal aid counsel Ch. approached the family and told them that the applicant was detained in the remand prison in Vladikavkaz. During that meeting Ch. admitted that ill-treatment had been used during the investigation of the case and that such pressure had been used by the investigation even in his presence, that he had been unable to put an end to it and that he had never complained about it. Very soon afterwards Ch. was dismissed, but the newly appointed lawyer Mr B. chosen by the applicant’s family could not enter into contact with the applicant until 10 November 2004. The first meeting of the applicant with his family took place on 10   November 2004 at an identified military base near the town of Vladikavkaz. It appears that the applicant was brought there to make him study the case file. According to the applicant’s sister who was allowed to see him, the duration of the visit was limited to mere three minutes during which she was obliged to speak Russian and had been warned against asking any questions her brother’s case. During this meeting the applicant’s sister saw multiple signs of ill-treatment, such as haematomas on the neck and hands and the fact that the applicant now walked using a cane. He was now suffering from gastritis, inflammation of gums, frequent headaches, a lifted left kidney and cirrhosis. D.     Trial and appeal proceedings The trial proceedings before the Supreme Court of the Republic of Ingushetiya commenced on 2 December 2004 and lasted until 3 August 2005. The applicant’s case was examined by a jury. Throughout court proceedings the applicant and his lawyer on many occasions claimed that he had been ill-treated and put under pressure, that his earlier confession had been false and obtained unlawfully. During one of the meetings with his sister which took place after 2   December 2004 the applicant explained to her that the torture and coercion had continued even after his transfer to the town of Nazran. The authorities forced him not to change his earlier statements and to confirm them in front the video camera. This video footage was never mentioned by the prosecution during the trial, but may have remained in the archive of the prosecutor’s office of the Republic of Ingushetiya. The court apparently largely disregarded these arguments. The applicant alleges that during the trial the authorities put pressure on witness Ba. forcing him to give evidence against the accused. By judgment of 3 August 2005 the trial court found the applicant and other co-accused guilty on all counts as charged. The applicant received a sentence of imprisonment of 13 years in the colony of a strict regime. On appeal, the applicant again mentioned that his earlier confession had been obtained using torture. He also argued that the jury composition had been biased and unlawful because jurors nos. 5, 7 and 19 had failed to inform the court about their family connection with the law enforcement bodies during the hearing of 3 December 2004. The judgment was upheld on appeal by the Supreme Court of Russia on 10 October 2006. At present the applicant is serving his sentence of imprisonment in penitentiary establishment IK-7 in the town of Omsk. COMPLAINTS 1.     Relying on Article 3 of the Convention, the applicant complained about multiple episodes of torture and coercion by the State agents. He also complained separately about the feeling of uncertainty and mental anguish related to the complete lack of communication with his family during the initial period of his detention. 2.     Under Articles 6 and 6 § 3 (b) of the Convention the applicant complained about the use of confession in convicting him. He alleged that the proceedings were generally unfair because of the use of torture and the total lack of communication with his family during the initial stages of the investigation and that some of the jurors were impartial. 3.     Relying on Article 13 of the Convention, the applicant complained about his inability to complain properly about the events in his case. 4.     Under Article 34 of the Convention the applicant also complained that prison administration of IK-7 had been strongly discouraging any complaints and had been putting pressure on him in relation with the present application. QUESTIONS TO THE PARTIES   1.     Was the applicant subjected to a treatment contrary to Article 3 of the Convention? The Government are invited to comment separately on each of the episodes described in the statement of facts.   2.     The Government are invited to submit all interrogation, arrest and search records of the applicant, A.P. and A. Ts. (including any video footage) in their possession (those contained in the court’s criminal case and also those contained in the prosecution case file among the evidence not disclosed during the trial) as well as records of these persons’ statements during the trial and their bills of indictment.   3.     The Government are requested to produce copies of all medical records of the applicant, A.P. and A. Ts. from the remand prisons, temporary detention centres and other locations at which they were detained during the investigation of the criminal case against them. The information and documents provided should indicate their exact diagnosis and anamnesis, as well as the treatment and medication provided to them, if any.   4.     When was the applicant’s family informed about his arrest and detention? Who was/were the applicant’s counsel(s) throughout the proceedings starting from the moment of his arrest? Were they legal aid or paid counsel? Was the applicant furnished with any detailed information concerning the availability and contact information of legal aid and paid counsel and did he have the right to choose one of them and enter into contact with him/her/them and an effective opportunity to do so? Was any investigation conducted into the allegations of ill-treatment of the applicant or any of his co-accused and, if so, what was its outcome? In this connection, the Government are requested to submit copies of relevant documents from the domestic case file.   5.     Did the investigation into the applicant’s alleged ill-treatments comply with the requirements of the procedural aspect of Article 3 of the Convention?   6.     Were the criminal proceedings against the applicant fair within the meaning of Article 6 of the Convention? In particular, did the courts use the applicant’s self-incriminatory statements or any evidence originating from such statements during the trial? In view of the applicant’s allegations under Article 3 of the Convention, can it be said that the use of such evidence and the pressure which the police officials had put on the applicant during the trial rendered the proceedings unfair? In view of the applicant’s allegations of pressure, coercion and inability to communicate with the outside world, were the rights set out in Article 6 § 3 (b) and (c) respected?   7.     The Government are requested to comment on the applicant’s allegations concerning jurors nos. 5, 7 and 19 and their alleged personal connections with local police officials. In view of these comments, was the applicant’s tried by an independent and impartial tribunal established by law, as required by Article 6 of the Convention?   8.     In view of the applicant’s allegations of pressure, coercion and inability to communicate with the outside world, can it be said that in connection with each of the mentioned grievances (Articles 3 and 6) the applicant had an effective remedy within the meaning of Article 13 of the Convention to complain about the relevant events?