CEDH · CASELAW;COMMUNICATEDCASES;ENG — 31 août 2011

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He is represented before the Court by The Committee Against Torture, a non ‑ governmental organisation based in Nizhniy Novgorod. The facts of the case, as submitted by the applicant, may be summarised as follows. A.     Alleged ill-treatment in police custody On 15 February 2005 at 11 a.m. the applicant, who was then 17 years’ old, and his father came to the Sovetskiy district police department of the town of Orsk ( отдел внутренних дел Советского района г. Орска , “Sovetskiy ROVD”) as requested in a police summons. They were asked to participate in an identification parade for identification by a victim of assault and battery. The identification parade with the applicant’s participation was however cancelled as the applicant’s lawyer had failed to appear. The applicant was photographed and fingerprinted. Thereafter he was taken to police station no. 2 of Orsk where he was questioned as a suspect of a theft from shops. To make him confess, he was handcuffed, tied up and hung in painful positions. In order to stop the torture he hit his head against the glass door of a bookcase. As a result, he broke the glass and cut his face and his head. An ambulance was called and he was examined by a doctor and provided with first aid. Afterwards he was punched in the head and the ears and tied up again. He was released after his confession to the theft. He arrived home at about 9:40 p.m. He was hospitalised from 15 to 25   February 2005. According to medical certificates, he had brain concussion, abrasion and bruises on his head as a result of injuries which had been received shortly before his hospitalisation. B.     Investigation into the alleged ill-treatment 1.     Refusal to open criminal proceedings by the prosecutor’s office On 21 February 2005 the applicant’s father complained of his son’s ill ‑ treatment to the prosecutor’s office. The prosecutor’s office of the Sovetskiy district of Orsk carried out an inquiry. According to the results of the applicant’s forensic medical expert examination of 17 March 2005, his injuries, notably brain concussion, abrasion and bruises on the head, caused light health damage. The brain concussion could have resulted either from a stroke by a head against a bookcase or from a punch in the head. On 17   March 2005 an investigator of the prosecutor’s office refused to bring criminal proceedings. That decision was quashed by the deputy district prosecutor. On 24 March 2005 the investigator of the prosecutor’s office again took a decision, under Article 24 § 1 (2) of the Code of Criminal Procedure, not to bring criminal proceedings for the absence of corpus delicti in the actions of the police officers. It was established that the applicant had left the Sovetskiy ROVD at 3:20   p.m. on 15 February 2005. He was stopped in the street on the same day at 7 p.m. and taken to police station no. 2 in order to check his involvement in a theft of which he was suspected. According to the police station records, the applicant was taken to police station “on suspicion of having committed a crime”. Records of his administrative conveying ( доставление ) to a police station were drawn up at the police station. He was searched in the presence of two witnesses. Then he suddenly jumped to his feet, ran forward and hit his head against the glass door of a bookcase. The glass broke and he injured his head. Medical aid was provided to him. An ambulance doctor stated that the applicant had not complained of any violence by police officers and that, apart from cuts on his head, she saw no injuries on him, for example no traces of handcuffs on his wrists. The police asked lawyer S. to represent the applicant during his examination as a suspect. The lawyer asked everyone to leave the office and talked to the applicant. The applicant said that he would only give statements in the presence of his lawyer Z. In reply to lawyer S.’s questions, the applicant explained the origin of injures on his head and stated that no force had been applied to him by the police officers. In the course of a talk with police officers thereafter the applicant confessed to a theft from shops. The investigator based her decision on statements obtained from police officers from Sovetskiy ROVD and police station no. 2, an expert ‑ criminalist who had photographed the applicant, the ambulance doctor who had examined the applicant at the police station, lawyer S., two witnesses who were present when the applicant injured himself, the applicant and his father, the forensic medical expert who examined the applicant, persons who had been with the applicant in the same ward in the hospital, other witnesses as well as documents including a reference from the applicant’s school teacher who characterised him as sly, deceitful and shifty. The investigator came to a conclusion that the applicant’s injuries had been self-inflicted and his allegations of ill-treatment by police officers had been devoid of foundation. 2.     Domestic courts’ review of the refusal to open criminal proceedings under Article 125 of the Code of Criminal Procedure The applicant’s father appealed against the investigator’s decision of 24   March 2005. The Sovetskiy District Court of Orsk examined the materials of the inquiry carried out by the investigator and found that the inquiry had been comprehensive and thorough. Thus, all persons appearing in the applicant’s complaint had been identified and questioned. Procedural documents from a case in which the applicant was apprehended and documents concerning the applicant’s personality had been requested and examined, as well as the results of an investigation carried out by The Committee Against Torture, a non-governmental organisation, and an internal inquiry by the head of the Sovetskiy ROVD. The special attention had been paid to verify the applicant’s allegation that he had continuously been held in police custody and had been taken by police officer S. from the Sovetskiy ROVD to police station no. 2. All personnel who had seen the applicant in the police building had been questioned in detail. The District Court found that the investigator’s conclusions had been objectively founded by the information received as a result of the inquiry. It rejected the applicant’s father’s appeal. The applicant’s father appealed against the District Court’s decision of 20   May 2005. The Orenburg Regional Court stated in its decision of 16   June 2005 that the investigator’s and District Court’s decisions were lawful, well-founded and well-reasoned. It held in respect of the applicant’s father’s complaint about the unlawfulness of the applicant’s apprehension by police on 15 February 2005 that the applicant had not been apprehended as a suspect under Articles 91, 92 and 423 of the Code of Criminal Procedure. COMPLAINTS 1.     The applicant complains under Article 3 of the Convention that he had been tortured in police custody and that no effective investigation into his complaint was carried out. 2.     He complains under Article 13 of the Convention that the authorities failed to carry out effective investigation into his complaint of torture and that their refusal to institute criminal proceedings made it impossible for him to be granted victim status which could have entitled him to compensation. 3.     The applicant complains under Article 5 § 1 (c) of the Convention that his apprehension and detention at police station no. 2 was unlawful. 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 applicant’s deprivation of liberty on 15   February 2005 at the Orsk Sovetskiy ROVD and the Orsk police station no.   2 fall within paragraph (c) of this provision, in particular during the period between: (i)     the moment of his actual apprehension by police on 15 February 2005 and the moment of his release from police station no. 2 on that day; (ii)     the moment of conveying ( доставление ) him to the police station and his release?   In answering that question the Government are requested to address, inter alia , the following points:   (a)     What were the legal grounds and reasons for: (i)     the applicant’s administrative conveying ( доставление ) to the police station on 15 February 2005? (ii)     the applicant’s detention between the moment of his actual apprehension by police on 15 February 2005 and his release from police station no. 2 on that day?   (b)     What were the exact time periods of the applicant’s presence at both police stations – the Sovetskiy ROVD and police station no. 2 ( второе отделение милиции ) – on 15 February 2005? What were the exact times that the applicant was apprehended by police on 15 February 2005, brought to the police station and released?   (c)     What administrative offence triggered the applicant’s conveying to the police station on 15 February 2005? What is the outcome of the administrative proceedings against the applicant?   (d)     Was the applicant brought to the police station on suspicion of having committed a crime punishable under the Criminal Code of the Russian Federation?   2.     Was the applicant subjected to torture, inhuman or degrading treatment or punishment by police officers on 15 February 2005, 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 at the Sovetskiy ROVD and police station no. 2 in Orsk by the Ministry of the Interior organs ( органы Министерства Внутренних Дел ) on 15 February 2005 and during what periods? What was the applicant’s procedural status? Where was the applicant held on that day? 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 15   February 2005 by the investigating authority responsible for investigating the theft from shops, and during what periods? 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?   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)     Were the investigators (investigating authority), who carried out the inquiry into the applicant’s allegations of police ill ‑ treatment, independent of the investigators (investigating authority) who were responsible for investigating the thefts from the shops?   (b)     Which police officers from which police department(s) were involved in the inquiry into the applicant’s complaint of police ill ‑ treatment? What operational and other activities did they carry out in the course of the above inquiry? Were they independent of the police department and those of its officers who were allegedly implicated in the applicant’s ill-treatment?   4.     Given the applicant’s minor age at the time of the events in question, what additional guarantees, if any, compared to an adult, did he enjoy or should have enjoyed as regards the events complained of and the subsequent inquiry into his complaints?   5.     Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 3, as required by Article 13 of the Convention? In particular, having regard to the fact that the investigating authority decided, under Article 24 § 1 (2) of the Code of Criminal Procedure, not to institute criminal proceedings on the applicant’s complaint of police ill ‑ treatment for the absence of corpus delicti in the actions of the police officers, was it open to the applicant to lodge a civil action against the State for compensation on account of the alleged police ill-treatment and, if so, was this available not only in theory but also in practice and would it have any reasonable prospects of success (see, mutatis mutandis , Chember v. Russia , no. 7188/03, §§ 70-73, 3 July 2008)?   6.     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 investigating authority’s decisions in respect of the applicant’s complaint of ill-treatment and decisions to quash them (apart from those decisions which were submitted to the Court by the applicant);   (b)     the records of 15 February 2005 concerning the applicant’s conveying ( доставление ) to the police station and the relevant extracts from the Orsk Sovetskiy ROVD and the Orsk police station no. 2 visitors’ records of 15 February 2005 concerning the applicant’s presence at those police stations (copies submitted by the applicant, mentioned as documents nos. a and b in the list of documents enclosed to the application form, are of poor quality);   (c)     information about the status and outcome of the criminal proceedings against the applicant, a first-instance and an appeal courts’ judgments, the applicant’s statement of appeal and an extract from the court hearing records concerning the domestic courts’ assessment of the applicant’s confession (self-incriminating statements) allegedly obtained as a result of the applicant’s ill ‑ treatment by police officers on 15 February 2005;   (d)     the applicant’s photographs taken at the Sovetskiy ROVD on 15   February 2005 with an indication of the time when they were taken.   (e)     the applicant’s forensic medical examination report of 17.03.2005 (a copy submitted by the applicant, mentioned as document no. h in the list of documents enclosed to the application form, is of poor quality).       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?