CEDH · CASELAW;COMMUNICATEDCASES;ENG — 31 août 2011

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He is represented before the Court by Ms O.A. Gnezdilova, a lawyer practising in Voronezh and counsel to Interregional Human Rights Group based in Voronezh. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant is a migrant worker who has been living in the Voronezh region since 2002. A.     Alleged ill-treatment in police custody 1.     The applicant’s apprehension At about 2 p.m. on 26 April 2009 the applicant arrived at a meeting place as requested by his acquaintance G., who was acting on police instructions. Three men in plain clothes pushed him to the ground, put handcuffs on him and took him to the Voronezh Zheleznodorozhniy district police department ( отдел внутренних дел Железнодорожного района г. Воронежа , “Zheleznodorozhniy ROVD”) in an unmarked car. They did not explain who they were, where they were taking him and why. 2.     Events at the Zheleznodorozhniy ROVD At the Zheleznodorozhniy ROVD the applicant was photographed. Police officers in uniform demanded that he confess to a murder. No details thereof were provided. He alleges that when he refused, he was subjected to various forms of ill-treatment; in particular, he was beaten up, electric shocks were applied to his ears, he was beaten on the head with an empty glass bottle, he was tied up and hung in painful positions while naked, his genitals were pulled and squeezed and he was threatened with an intravenous injection of an unknown substance. This lasted until the following morning. At some point the applicant agreed to give self ‑ incriminating statements. In the morning he was placed in a cell at the police station. On 27 April 2009 his questioning by the police officers continued. He confessed to a murder as dictated by them. In the evening he was again placed in a cell at the police station. 3.     Administrative proceedings against the applicant On 27 April 2009 a police officer of the Zheleznodorozhniy ROVD brought administrative proceedings against the applicant. According to the records on administrative offences, at 9.15 p.m. on 27   April 2009 the applicant used obscene language in the street. At 9.30   p.m. he was allegedly taken to the police station and examined in the presence of witness S. There were no visible injuries on him. Records of his administrative apprehension and of his having committed an administrative offence – namely the use of obscene language – were drawn up at the same time, 9.30 p.m. On 28 April 2009 the acting deputy head of the Zheleznodorozhniy ROVD sentenced the applicant to an administrative fine in the amount of 500   roubles. 4.     Inquiries about the applicant’s whereabouts On 27 and 28 April 2009 the applicant’s friend S. phoned the police and asked about the applicant’s whereabouts. No information was provided. In reply to her declaration that the applicant had disappeared and a request to search for him she was told that such a request could only be accepted three days after the disappearance. 5.     Interrogation in a murder case The applicant was continuously held at the police station until 28 April 2009, when he was taken to the Zheleznodorozhniy District Investigation Department of the Investigation Committee at the Voronezh Regional Prosecutor’s Office ( Следственный отдел по Железнодорожному району Следственного управления Следственного комитета при прокуратуре РФ по Воронежской области , “Zheleznodorozhniy Investigation Committee”) for interrogation by G., an investigator, as a witness in a case concerning the murder of D. The applicant was requested to sign certain documents in Russian, although he could not read that language. He was subsequently transferred back to the police station, from which he was released in the evening of the same day. No prosecution was brought against the applicant in relation to that case. B.     The applicant’s injuries On 29 April 2009 the applicant was refused medical aid at town emergency hospital no. 1 as he had no state medical insurance certificate. He was, however, examined, and bruises on his face and chest were recorded. On 30 April 2009 the applicant asked to be examined at the Voronezh Regional Forensic Medical Bureau. The detailed records of his injuries ( акт медицинского освидетельствования ) included numerous bruises and abrasions on his face, chest, scrotum, arms and legs. On 14, 15 and 18 May 2009 the applicant was examined by a doctor at town hospital no.   3, where he was diagnosed with a fractured rib on the basis of an X ‑ ray examination. C.     Investigation into the alleged ill-treatment 1.     Application to the Investigation Committee at the Prosecutor’s Office (a)     Refusal to initiate criminal proceedings On 7 May 2009 P., deputy head of the Zheleznodorozhniy Investigation Committee, refused to accept from the applicant a request for an investigation into his ill-treatment by officers of the Zheleznodorozhniy ROVD and threatened to call the migration service and have him deported from the country. The applicant retained a lawyer, Ms O.A. Gnezdilova, a member of the Voronezh Regional Bar Association. On 14 May 2009 his lawyer lodged an application about the applicant’s ill ‑ treatment at the Zheleznodorozhniy ROVD with a request to bring criminal proceedings against its officers for abuse of power (Article 286 of the RF Criminal Code) and torture (Article 117 of the RF Criminal Code). The application asked for specific investigation measures, in particular the applicant’s identification of the police officers who were on duty on 26 ‑ 28   April 2009, and a forensic medical expert examination with a view to establishing a possible cause and time of the infliction of injuries. On 25 May 2009 an investigator of the Zheleznodorozhniy Investigation Committee refused to open criminal proceedings on the applicant’s complaint. The applicant appealed to the Voronezh Zheleznodorozhniy District Court under Article 125 of the Code of Criminal Procedure. On 18   June 2009 the court terminated the proceedings on the applicant’s appeal, since the investigator’s decision of 25 May had been quashed on 17 June 2009 by the deputy head of the Zheleznodorozhniy Investigation Committee. The applicant learned about the quashing from the court. The investigator’s subsequent decisions of 27 June and 6 August 2009 that no criminal proceedings should be brought with regard to the applicant’s complaint of ill-treatment were likewise quashed by the head of the Zheleznodorozhniy Investigation Committee or his deputy (decisions of 27   July and 1 September 2009), and the applicant’s corresponding court appeals were therefore not examined for the same reason (the Zheleznodorozhniy District Court’s decisions of 28 July and 1 September 2009). (b)     Institution of criminal proceedings On 8 October 2009 a decision of 11 September 2009 by the investigator not to bring criminal proceedings was quashed by the Voronezh Regional Investigation Committee and a decision to institute criminal proceedings was taken. On 16 October 2009 the applicant was given victim status in the criminal proceedings. (c)     Suspension of criminal proceedings On 8 April 2010 the criminal proceedings were suspended for failure to identify those responsible. The proceedings were subsequently reopened and suspended again on the same ground several times, for the last time on 25 November 2010. The applicant’s appeals against that decision were dismissed. 2.     Application to the Ministry of the Interior A complaint about the applicant’s ill-treatment was also lodged with the internal security department of the Voronezh Regional Department of the Interior, which informed the applicant’s lawyer on 19   May 2009 that her complaint had been transferred to the Zheleznodorozhniy Investigation Committee and that she would be informed of the results of the internal inquiry. On 30 June 2009 the applicant’s lawyer was informed that as a result of the internal inquiry M., a police officer in the Zheleznodorozhniy ROVD, would be subjected to disciplinary liability and that she could have access to the internal inquiry report. This access was, however, subsequently refused. On 23 July 2009 the applicant’s lawyer was informed that M. had been subjected to disciplinary liability for his failure to identify S., a witness to the applicant’s administrative offence. D.     Appeal against the judgment in the administrative proceedings On 16 July 2009 the applicant’s lawyer received access to documents concerning the administrative proceedings against the applicant. On 29 July 2009 the Zheleznodorozhniy District Court examined her appeal against the decision of the Zheleznodorozhniy ROVD of 28 April 2009 sentencing the applicant to the administrative fine. It quashed the judgment and terminated the administrative proceedings against the applicant for the absence of an administrative offence. The applicant’s lawyer lodged an application with the Investigation Committee, asking that criminal proceedings be opened in connection with the fact that the charges against the applicant in the administrative proceedings had been trumped up. The application was examined by the Zheleznodorozhniy Investigation Committee, which on 3 January 2010 refused to open criminal proceedings. On 29 April 2010 the applicant appealed to the Zheleznodorozhniy District Court. COMPLAINTS 1.     The applicant complains under Article 3 of the Convention of torture in police custody, applied in order to force him to confess to a crime which he had not committed. He complains under Article 13 of the Convention of the lack of an effective investigation into his complaints about the torture. 2.     The applicant complains under Article 5 of the Convention of his unlawful detention in the police station for three days. He had no formal status as a suspect in the murder case and the administrative proceedings against him were brought in order to justify his unlawful detention. QUESTIONS TO THE PARTIES 1.     Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, did the deprivation of liberty from 26 April 2009 to 28 April 2009 inclusive fall within paragraph (c) of this provision?   In answering that question the Government are requested to address, inter alia , the following points:   (a)     What were the legal grounds and reasons for the applicant’s apprehension on 26 April 2009 in the absence of any administrative offence (see the Voronezh Zheleznodorozhniy District Court’s judgment of 29 July 2009) and for his subsequent detention until his release on 28 April 2009?   (b)     What were the exact times that the applicant was apprehended by police on 26 April 2009, brought to the police station and released on 28   April 2009? Please submit the relevant extracts in respect of the applicant from the Register of persons brought to a police station ( «Книга учета лиц, доставленных в дежурную часть органа внутренних дел» ) for 26, 27 and 28 April 2009, which that station was required to hold in accordance with Order no. 248 of the Ministry of the Interior of 1 April 2009 ( приказ МВД РФ от 1 апреля 2009 № 248 ).   (c)     What was the outcome of the investigation carried out by the Zheleznodorozhniy District Investigation Department into the applicant’s complaint that the administrative case against him had been fabricated? What court decisions were taken with regard to the applicant’s appeal to the Zheleznodorozhniy District Court against the Zheleznodorozhniy District Investigation Department’s decision of 3 January 2010 not to open criminal proceedings concerning the complaint of fabrication?   2.     Was the applicant subjected to torture, inhuman or degrading treatment or punishment by police officers on 26-28 April 2009, in breach of Article 3 of the Convention?   In answering that question the Government are requested to address, inter alia , the following points:   (a)     Once in the hands of the police: (i)     Was the applicant informed of his rights? If so, when, and what rights was he informed about? (ii)     Was he given the possibility of informing a third party (family member, friend, consulate, etc.) about his detention and his location and, if so, when? (iii)     Was he given access to a lawyer and, if so, when? (iv)     Was he given access to a doctor and, if so, when and was his medical examination conducted out of the hearing and out of sight of police officers and other non ‑ medical staff?   (b)     What activities involving the applicant were conducted by the Zheleznodorozhniy ROVD on 26, 27 and 28   April 2009, and during what periods? If they were carried out at night, was this lawful? What was the applicant’s procedural status? Where was the applicant held on 26, 27 and 28 April 2009? What confessions and/or statements ( явка с повинной; показания ) did the applicant give during that period (please submit relevant documents, in particular, written, audio or video records containing the applicant’s statements/confessions)? Was the applicant given access to a lawyer before and during each such activity?   (c)     What activities involving the applicant were conducted on 26, 27 and 28   April 2009 by the Zheleznodorozhniy District Investigation Department of the Investigation Committee at the Voronezh Regional Prosecutor’s Office ( Следственный отдел по Железнодорожному району Следственного управления Следственного комитета при Прокуратуре РФ по Воронежской области ) and during what period? If they were carried out at night, was this lawful? What was the applicant’s procedural status? What confessions and/or statements ( явка с повинной; показания ) did the applicant give during that period (please submit relevant documents, in particular, written, audio or video records containing the applicant’s statements/confessions)? Was the applicant given access to a lawyer before and during each such activity?   (d)     What was the applicant’s procedural status for his examination on 28   April 2009 by Mr D.S. Gnezdilov, investigator of the Zheleznodorozhniy District Investigation Department, in criminal proceedings concerning the murder of Mr Yuriy Dobrosotskiy (please submit the records of the applicant’s examination and other relevant documents)? What was the outcome of those criminal proceedings (please submit copies of a first-instance and an appeal court judgment or other relevant documents)?   (e)     Did the police officers who apprehended the applicant and took him to the police station act lawfully, given that they were allegedly in plain clothes, did not introduce themselves, gave no explanation for the apprehension, pushed the applicant to the ground, handcuffed him and took him to the police station in an unmarked car?   3.     Having regard to the procedural protection from torture, inhuman or degrading treatment or punishment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention? In particular:   (a)     Did the Investigation Committee order the applicant’s forensic medical examination ( судебно-медицинская экспертиза ) in order to establish, inter alia , harm to the applicant’s health and the possible origin and time of infliction of his injuries?   (b)     Which police officers from which police department(s) were involved in the inquiry and the preliminary investigation into the applicant’s complaint of police ill-treatment prior to and after the decision of 8 October 2009 to bring criminal proceedings? What operational and other activities did they carry out in the course of the above inquiry and investigation? Were they independent of the Zheleznodorozhniy ROVD and those of its officers who were allegedly implicated in the applicant’s ill-treatment?   4.     In answering each of the above questions the Government are requested to submit the relevant documents in support of their information, and, in particular, the following:   (a)     the Voronezh Zheleznodorozhniy District Court’s judgment of 29   July 2009 (on the applicant’s appeal against the decision of the Zheleznodorozhniy ROVD of 28 April 2009 concerning the administrative proceedings against the applicant), with information on its entry into force; the relevant appeal court’s decision, if the above judgment was appealed against;   (b)     the Zheleznodorozhniy District Investigation Department’s decision of 27 July 2009 and the investigating authority’s other decisions with regard to the applicant’s complaint of ill-treatment and the decisions to quash them (apart from those decisions which were submitted to the Court by the applicant);   (c)     the decision of 9 April 2010 to suspend the criminal proceedings, and information and documents concerning any subsequent developments in the case since 9 April 2010;   (d)     photographs of the applicant taken at the Zheleznodorozhniy ROVD during his detention on 26-28 April 2009, with an indication of the time they were taken.     FIRST SECTION   Application no. 57519/09   RAZZAKOV c. Russie Application no. 46956/09   LYAPIN c. Russie Application no. 38887/09   FARTUSHIN c. Russie Application no. 31316/09   GORSHCHUK c. Russie Application no. 4722/09   TURBYLEV c. Russie Application no. 52796/08   OVAKIMYAN c. Russie Application no. 2281/06   ANDREYEV c. Russie     GENERAL QUESTIONS TO THE PARTIES   In the light of the issues raised as a result of alleged ill-treatment by police in seven communicated cases ( Razzakov (no. 57519/09), Lyapin (no.   46956/09), Fartushin (38887/09), Gorshchuk (31316/09), Turbylev (4722/09), Ovakimyan (52796/08) and Andreyev (2281/06)) and in view, in particular, of such fundamental guarantees to detained persons as the right to have one’s deprivation of liberty officially recorded, the possibility of informing a third party about one’s detention, access to a lawyer and access to a doctor, which should apply from the very outset of deprivation of liberty and of which they should be expressly informed without delay (see, among other authorities, Menesheva v. Russia , no.   59261/00, § 87, ECHR 2006 ‑ III; Salmanoğlu and Polattaş v. Turkey , no.   15828/03, § 79, 17 March 2009; Algür v. Turkey , no. 32574/96, § 44, 22   October 2002; Salduz v.   Turkey [GC], no. 36391/02, § 54, 27 November 2008), the Government are requested to provide information about the relevant domestic law and practice on the points below, demonstrating their state of development at the time of the events in each case, that is from 2005 to 2009 (including the Constitution, laws, by-laws ( подзаконные акты ), service instructions ( служебные инструкции ), practice directions, decisions or other acts of the Supreme Court of the Russian Federation and decisions and other acts of the Constitutional Court of the Russian Federation):   (1)     What is the maximum duration between the moment of an individual’s actual apprehension ( фактическое задержание ) in all possible cases of deprivation of liberty in criminal and administrative proceedings, and: (i)     his or her contact with a third party (family member, friend, consulate, etc.) in order to inform [them] about his detention and his location? (ii)     access to a lawyer? (iii)     access to a doctor? (iv)     notification of the above-mentioned rights? How are these guarantees (to inform a third party about one’s detention, access to a lawyer and to a doctor) regulated by domestic law? Does a person in the above-mentioned situations have a right to access to a doctor before, during and after admission to an IVS ( изолятор временного содержания ) or SIZO ( следственный изолятор )? Do medical examinations at police premises and the IVS or SIZO have to be conducted out of the hearing and out of sight of police officers and other non-medical staff?   (2)     Besides the formal recording of various forms of deprivation of liberty in accordance with the rules of criminal and administrative procedure, do the police keep custody records in respect of each person who has been apprehended or otherwise deprived of liberty, with information, inter alia , about the time of the actual apprehension and arrival at a police station, the time and nature of actions taken in his or her respect and the police officers responsible for conducting such actions?   (3)     Do the records of apprehension ( протокол задержания ) of a suspect have to contain information about the actual apprehension ( фактическое задержание ) of a suspect prior to his or her being brought before an investigator or other competent authority, such as the exact time, place, legal basis and reasons (reference is made to Article 92 of the Code of Criminal Procedure and Appendix 12 to the Code)? Which document records the time when the suspect is brought before an investigator or other competent authority and from which the three-hour time-limit referred to in Article   92 starts to run?   (4)     What behaviour should be expected from police officers carrying out an apprehension, or bringing a suspect before a competent authority or conveying him or her to a competent authority in administrative and criminal proceedings ( задержание, доставление, привод ) to? In particular, do they have to wear uniform, use marked cars, produce their service badges and explain the legal basis and reasons for their actions? How is the use of force and handcuffs regulated? What are the guarantees against abuses by police officers in such situations?   (5)     In accordance with the rules of criminal procedure, what activities can police officers carry out with the participation of a person after his or her actual apprehension? Can they question him or her or take explanations about an offence prior to questioning by an investigator? Can they take a confession to a crime?   (6)     Do district police departments have cells for persons detained in criminal and administrative proceedings? Are they equipped for overnight detention? Are interrogations and other procedural activities with detained persons carried out in offices belonging to police officers or in special rooms for those activities? Is audio or video recording used by police officers and investigators for questioning and other procedural activities?   (7)     What are the requirements, guarantees and procedure for taking a confession to a crime ( явка с повинной ) under the Code of Criminal Procedure, in particular Article 142 of the Code and Annex 3 to the Code? Is the person informed of any rights and legal consequences and given access to a lawyer before a confession is taken? Can a confession be taken from any person irrespective of his or her procedural status, for example, a witness or any other person who is not formally declared a suspect or an accused, and, if so, does Article   75 § 2 (1) of the Code (which qualifies as inadmissible evidence the statements made by a suspect or an accused in the absence of a lawyer in pre-trial proceedings and not confirmed in court) apply to confessions taken from persons other than a suspect or an accused? What is the court practice with regard to the application of Article 75 § 2 (1) of the Code of Criminal Procedure (please submit a representative review of court decisions in individual cases)?   (8)     As regards the competent authorities’ reaction to complaints about police ill-treatment, what criteria do they use when deciding whether to institute criminal proceedings and carry out an investigation? How is Article   140 § 2 of the Code of Criminal Procedure (setting out the ground for the institution of criminal proceedings) interpreted by the domestic courts, the Ministry of the Interior and the investigating authority at the prosecutor’s office as regards such complaints?   (9)     As regards an inquiry under Article 144 of the Code of Criminal Procedure: (i)     Which of the investigation methods employed for a preliminary investigation under Articles 150-226 of the Code can be employed in the course of such an inquiry? (ii)     What other methods can be employed? (iii)     Are persons from whom explanations ( объяснения ) are taken liable for false statements or refusal to testify?   (10)     Which investigating authority and police department (which carries out operational, search and other procedural activities) is required to conduct an inquiry under Article 144 of the Code of Criminal Procedure (prior to a decision on whether to open criminal proceedings) and preliminary investigation (after criminal proceedings are brought) into allegations of police ill-treatment? Are they independent of the investigating authority and the police departments implicated in the alleged ill-treatment?