CEDH · CASELAW;COMMUNICATEDCASES;ENG — 31 janvier 2014

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s72EB7DC5 { margin-top:18pt; margin-bottom:0pt; text-align:center } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s29100277 { font-family:Arial; font-weight:bold } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sADADF4A7 { font-family:Arial; text-decoration:underline }     Communicated on 31 January 2014   FIRST SECTION Application no. 39708/07 Aleksandr Viktorovich KONOVALOV against Russia lodged on 16 July 2007 STATEMENT OF FACTS   The applicant, Mr Aleksandr Viktorovich Konovalov, is a Russian national, who was born in 1971 and is currently serving a sentence of imprisonment in the Belgorod region. The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     The applicant’s alleged ill ‑ treatment in police custody and his administrative arrest (a)     OVD Severniy On 14 June 2006 a Ms I., a university student, disappeared. On 15 June 2006 her mother reported her missing to the police department OVD Severniy of the Kominternovskiy district police department of Voronezh ( Северный ОВД Коминтерновского РУВД г.   Воронежа , “OVD Severniy”). The search had been carried out by operative officers of the criminal search unit of the OVD Severniy Mr   S. and Mr M., district police officer Mr   A. and police driver Mr   L. On 17 June 2006 between 6 and 7 a.m. they arrived at the applicant’s flat. The applicant and his brother Y. were home. The police officers searched the flat and the applicant’s car. According to an official record, the search of the car was carried out between 10.10 a.m. and 11.20 a.m. by an investigator of the OVD Severniy and expert Mr   K. in the presence of two witnesses and the applicant’s brother. The applicant was handcuffed and taken, together with his brother, to the OVD Severniy where he was questioned about I.’s whereabouts. He stated that I. was his girlfriend, that he had last seen her on 14 June 2006 and that he was not aware of her whereabouts. His “explanation” ( объяснение ) was written down by operative officer M. and the applicant signed it. Police officers had allegedly beaten him up in order to extract from him information about I. The applicant maintained his statements. Between beatings he was placed in a cell for administrative detainees at the OVD Severniy where other detainees heard from him that he was being beaten up. (b)     Administrative arrest The applicant’s and his brother’s detention at the OVD Severniy from 9.50   p.m. on 17   June 2006 until 10.40 a.m. on 19 June 2006 was recorded as detention on the ground of them having committed an administrative offence, notably petty hooliganism under Article 20.1 of the Code of Administrative Offences. Operative officers of the criminal search unit of the OVD Severniy M. and E.M. allegedly found them in a street in the immediate vicinity of the OVD Severniy while they was using obscene language. According to the applicant, they were not released and did not commit any administrative offence. Instead, they were continuously detained at the OVD Severniy. The applicant was not served a copy of the administrative record against which he could not, therefore, appeal. (c)     OVD Sovetskiy On 19 June 2006 the applicant and his brother were taken from the OVD Severniy to the Sovetskiy district police department ( Советский РОВД г.   Воронежа , “ROVD Sovetskiy”) where the applicant was again questioned about I.’s whereabouts, allegedly beaten up and tortured with electric current. According to the applicant, his brother was released and soon died as a result of injuries and tortures by police officers. The applicant was put a knitted cap on his head so that he could not see anything and taken by car out of the town where beatings and torture with electricity through wires attached to his little fingers allegedly continued. His mouth was scotched so that he would not scream. When he was ready to give any statements he was taken to a river bank and shown a dead body. He was thrown on the ground and kicked. Back to the ROVD Sovetskiy the applicant signed an “explanation” ( объяснение ) prepared by investigator Ms   S. of the Voronezh Sovetskiy district prosecutor’s office in the presence of the police officers who had beaten him up. According to the explanation, the applicant had strangled I. with a cable. He also stated in the same “explanation” that he had received all his injuries at the OVD Severniy where he had been beaten up, and that at the ROVD Sovetskiy he had not been beaten up or threatened and that he had no complaints against officers of the ROVD Sovetskiy. On the same day between 11 p.m. and midnight investigator Ms   S. conducted the examination of a place where a corps of an unidentified woman was found. According to an official record, the examination was carried out based on the applicant’s information about the place where he had hidden I.’s body. The applicant, whose status was not indicated in the record, was not assisted by a lawyer. According to a report by operative officer Mr Sh. to the head of the ROVD Sovetskiy dated 20 June 2006, a corpse of an unidentified woman was found on 19 June 2006 at 11 p.m. According to the subsequent post ‑ mortem examination, the death had been caused by strangulation and the corpse had then been burned. On 20 June 2006 at 12.50 a.m. the applicant was formally apprehended as a suspect by investigator S. and questioned between 1 and 1.50 a.m. The applicant allegedly asked for access to a lawyer of his choice to be retained by his family. However, the investigator called lawyer on duty Ms   P. to be present during the apprehension and interrogation. The lawyer allegedly refused to talk to the applicant before the interrogation. The applicant confirmed his confession, reiterated and developed in more detail the statements which appeared in the “explanation” of 19 June 2006, including those concerning the origin of his injuries, in particular a chest trauma as a result of him being allegedly kicked by police officers at the OVD Severniy. During his additional interrogation next morning between 11 and 11.15   a.m. by investigator S. in the presence of the same lawyer P. the applicant explained that he had burned I.’s corpse. Between 11.30 a.m. and 1.32   p.m. his statements were verified at the scene of the crime in the presence of lawyer P. where he gave further details concerning the murder and showed where he had hidden the victim’s mobile phone. Operative officer of the ROVD Sovetskiy M.D. was among participants of the verification. On 21 June 2006 between 10.15 and 10.50 a.m. the applicant was questioned as an accused by investigator S. in the presence of lawyer P. and confirmed his earlier self-incriminating statements and statements concerning his alleged ill-treatment at the OVD Severniy. He was placed in cell no. 156 of SIZO 36/1 of Voronezh in which other persons were also detained. (d)     The applicant’s injuries On 20 June 2006 investigator S. ordered the applicant’s medical examination to elucidate the origin of his injuries. At 3.20 p.m. the applicant was examined by a medical expert of the Voronezh Regional Forensic Medical Centre who reported multiple bruises and abrasions on the back, shoulders, arms, chest, stomach, legs, head and face of the applicant. The injuries could have been inflicted by a blunt object during a period from one to three days before the examination. The applicant explained to the expert that after his apprehension on 17 June 2006 police officers had punched him on his head and various parts of his body and had beaten him with a rubber baton on his back and legs. He, however, did not inform the expert about his torturers’ identity in the presence of the police officers of the ROVD Sovetskiy who had brought him to the expert. According to the applicant, several abrasions on his arm had been caused by his attempt to cut his veins as a protest against his ill-treatment. At an unspecified date the applicant asked for the X-ray examination of his chest as he believed that his ribs had been broken. His request was refused. 2.     Prosecutor’s office response to the applicant’s complaint of police ill-treatment (a)     Refusal to bring criminal proceedings against officers of the OVD Severniy Following a pre-investigation inquiry under Articles 144-145 of the Code of Criminal Procedure (“CCrP”) into the applicant’s complaint at his interrogation as an accused on 21 June 2006 about his alleged ill-treatment by police, on 1 July 2006 the prosecutor’s office of the Kominternovskiy district of Voronezh refused, on the ground of Article 24 § 1 (2) of the Code of Criminal Procedure, to bring criminal proceedings against police officers of the OVD Severniy for want of elements of the offence. The decision stated that on 17 June 2006 the applicant, who had committed an administrative offence, had been taken to the OVD Severniy from which he had later been taken to the criminal search unit of the ROVD Sovetskiy. On 29   June 2006 he had allegedly acknowledged that he had received his injuries as a result of his resistance to police officers during his apprehension. The decision concluded that by lodging a complaint against police officers the applicant had tried to avoid criminal liability for the crime which he had committed. It does not follow from the decision that any police officers were questioned or any other measures taken to establish the facts. On 30 July 2006 a deputy Kominternovskiy district prosecutor annulled the decision of 1   July 2006 and ordered an additional inquiry. On 2   August 2006 a new refusal to open a criminal case followed, which was again annulled by a deputy district prosecutor on 20   September 2006. On 29 September 2006 the Kominternovskiy district prosecutor’s office again refused to open a criminal case. The decision stated that on 17   June 2006 operative officers of the criminal search unit of the OVD Severniy Mr   S. and Mr M., district police officer Mr   A. and a police driver Mr   L. had carried out operative activities in connection with I.’s disappearance. In order to check the applicant’s involvement into I.’s disappearance they had arrived at his place of residence. The applicant and his brother Y. had refused to obey their lawful orders and had not opened the door. After long negotiations the applicant and his brother who were both in a state of alcoholic inebriation had voluntarily followed them to the OVD Severniy for giving explanations. In office no. 26 operative officer M. had received his “explanation” and let him go. According to the explanations of the participants of the operative group, as well as the head of the criminal search unit Mr D., no physical force or “special means” had been applied to the applicant. Nor had any complaints been received from him. The decision referred to the explanations of operative officers M. and M.E. who, in the evening of 17   June 2006 in a street in the immediate proximity of the OVD Severniy, had caught site of the applicant and his brother Y. who had used obscene language. They had taken them to the OVD Severniy where they had been found guilty of the administrative offence under Article 20.1.2 of the Code of Administrative Offences and had been detained in a cell for administrative offenders from 9.50 p.m. on 17 June until 10.40 a.m. on 19   June 2006. The operative officers emphasised that the applicant and his brother had been detained during less than 48 hours (the maximum time ‑ period for the detention of a suspect in criminal proceedings between his arrest and a court detention order). Thereafter officers of the ROVD Sovetskiy had taken them to the criminal search unit of the ROVD Sovetskiy. According to the explanations of officer on duty Mr B. and assistant to the officer on duty Mr   R., during the applicant’s detention at the OVD Severniy no physical force or “special means” had been applied to him, an ambulance had not been called and no complaints had been received from him. No traces of blood had been found in office no. 26. When questioned on 29   September 2006, the applicant explained that his statement of 29 June 2006 about his resistance to police officers during his apprehension as an explanation to his injuries had been given by him under a pressure from officers of detention facility IZ 36/1 in which he was detained at the time. It was noted in the decision that both times when the applicant had been brought to the OVD Severniy – first for giving explanations about I.’s disappearance and later for having committed the administrative offence – he had had no injuries. It was concluded that the applicant could have received his injuries outside the OVD Severniy by an unknown person against whom he had not wished to bring criminal proceedings. (b)     Refusal to bring criminal proceedings against officers of the ROVD Sovetskiy On 21 September 2006 the prosecutor’s office of the Sovetskiy district of Voronezh refused to bring criminal proceedings against police officers of the ROVD Sovetskiy on the ground of Article 24 § 1 (1) of the Code of Criminal Procedure for want of an event of crime. The applicant had explained that he had blamed the officers of the OVD Severniy for all his injuries out of fear that the officers of the ROVD Sovetskiy, in whose hands he had been at that moment, would continue beating and torturing him; and that he had actually been ill-treated by officers of both police departments. According to the explanations of operative officers of the ROVD Sovetskiy Mr   P. and Mr S., on 19 June 2006 they had arrived at the OVD Severniy where they had received material concerning I.’s disappearance. An officer on duty had told them that the applicant, who had been detained as an administrative offender, had probably possessed information about I.’s disappearance. They suggested that he should go with them for giving explanations and he had agreed. On the way from the OVD Severniy he had complained of pain in his ear, chest and leg. No physical force had been applied to him at the ROVD Sovetskiy where he had voluntarily confessed of having murdered I. and showed where he had hidden her corpse. Operative officer of the ROVD Sovetskiy Mr M.D. had participated, together with investigator S., in the search in the applicant’s flat where I.’s mobile phone had been found, and in the verification of his statements at the scene of the crime. According to him and his colleague operative officer G., no physical force had been applied to the applicant. (c)     Court appeal against the decisions of the prosecutor’s office The applicant’s appeal of 17 May 2007 against the decisions of the prosecutor’s office was not examined by the Sovetskiy District Court because the applicant by that time had been convicted by a final judgment, as was stated in the court’s letter of 4 June 2007. 3.     Criminal proceedings against the applicant At his trial the applicant requested that his self-incriminating statements at the preliminary investigation should not be admitted in evidence as they had been given as a result of his ill-treatment by police officers. He also complained that he had been unlawfully detained on 17, 18 and 19   June 2006 and that his request to invite a lawyer of his choice had been disregarded by the investigator. On 12 October 2006 at the applicant’s request the trial court suspended proceedings in the criminal case against him pending the investigating authority’s final decision in respect of his alleged ill-treatment. The proceedings were however resumed on 19 October 2006. The court rejected the applicant’s requests to declare his self-incriminating statements as inadmissible evidence on the ground that his allegations of police ill ‑ treatment had been duly examined and dismissed by the prosecutor’s office in the decisions of 21 and 29 September 2006. The court also noted that all investigative measures since the applicant’s apprehension as a suspect on 20 June 2006 had been carried out in the presence of lawyer P. and that there was no evidence that the applicant had wished to appoint another lawyer. On 25 October 2006 the Sovetskiy District Court of Voronezh convicted the applicant of aggravated murder and sentenced him to twelve years’ imprisonment. The record of the examination of the crime scene of 19   June 2006, the two records of the applicant’s examination as a suspect of 20   June 2006, the record of the verification of the statements at the crime scene of 20   June 2006, the record of the applicant’s examination as an accused of 21   June 2006, and the applicant’s “explanation” given to investigator S. on 19   June 2006 with his confession were among the evidence on which the judgment was based. On 5 December 2006 the applicant received a reply from the Voronezh Regional Bar Association that lawyer P. had been subjected to disciplinary liability for her breach of the procedure for providing legal assistance by the investigating authority’s appointment. On 6 February 2007 the Voronezh Regional Court dismissed the applicant’s appeal against the judgment and endorsed the trial court’s findings. COMPLAINTS 1.     The applicant complains under Articles 3 and 13 of the Convention that he was subjected to ill-treatment by the police officers of the OVD Severniy and ROVD Sovetskiy of Voronezh on 17, 18 and 19 June 2006 and that the State failed to conduct effective investigation into those events. 2.     He also complains under Article 5 of the Convention that the alleged ill ‑ treatment took place during the period when those police officers unlawfully deprived him of his liberty without any reasonable suspicion of his involvement in I.’s disappearance, between his actual apprehension in the morning of 17 June 2006 until his detention as a suspect at 12.50   a.m. on 20 June 2006, and that he was not informed promptly of the reasons for his arrest and of any charge against him. He complains that on 17 June 2006 he had actually been apprehended as a suspect in the criminal case concerning I.’s disappearance and that his administrative offence had been falsified by the police officers. 3.     The applicant complains under Article 6 §§ 1 and 3 (c) of the Convention that his conviction was based on evidence received as a result of his ill-treatment and in the absence of a lawyer of his choice. He had no access to a lawyer after his apprehension on 17 June 2006. As to the investigative activities on 19, 20 and 21 June 2006, he was refused access to a lawyer of his choice and lawyer P. appointed by the investigator did not provide him with any real legal assistance.     QUESTIONS TO THE PARTIES   Questions concerning the applicant’s deprivation of liberty during the period between the moment of his actual apprehension by the police officers of the OVD Severniy in the morning of 17 June 2006 and the moment of his formal apprehension as a suspect on 20 June 2006:     1.     Was the applicant deprived of his liberty in breach of Article 5 §   1 of the Convention? In particular, did the deprivation of liberty during the above period fall within one of the paragraphs of this provision?   2.     What was the reason and ground for taking the applicant to the police station of the OVD Severniy from the applicant’s flat in the morning of 17   June 2006? Did the authorities have a reasonable suspicion of the applicant having committed the crime (of which he was later convicted) before taking him to the police station? If so, what was the basis for such suspicion?   3.     Having regard to the record of the examination of the applicant’s car of 17 June 2006, according to which the examination was carried out from 10.10 a.m. until 11.20 a.m. in the presence of the applicant’s brother Y., when exactly in the morning of 17 June 2006 was the applicant apprehended by the police officers at his flat and brought to the police station of the OVD Severniy?   The Government are invited to submit a copy of the record of the examination of the applicant’s car of 17 June 2006 and an extract from the register of persons brought to the OVD Severniy on 17   June 2006.   4.     Having regard to the fact that the applicant’s car was searched in the morning of 17   June 2006 as the crime scene (see the relevant official record) and that the applicant was questioned on the same day at the OVD Severniy by operative police officer M. about the applicant’s last meeting with the victim and her whereabouts (see the “Explanation” obtained by operative officer M. of the OVD Severniy and the finding in the refusal to bring criminal proceedings of 29 September 2006 that the police arrived at the applicant’s flat in order to check his involvement into I.’s disappearance), was the applicant actually detained and questioned on suspicion of him having committed a criminal offence involving the victim’s disappearance?   5.     Was the applicant informed promptly of the reasons for his actual arrest and of any charge against him at the OVD Severniy, as required by Article   5 § 2 of the Convention? Was he informed of his rights as a suspect? Was he given access to a lawyer? Was he given the possibility to inform his family of his detention?   6.     Was the applicant detained continuously at the OVD Severniy from the morning of 17 June 2006 when he was brought there for giving explanations about I.’s disappearance until his transfer to the ROVD Sovetskiy by police officers P. and S. of the ROVD Sovetskiy? Having regard to the pre ‑ investigation inquiry’s version of the applicant’s release after he had given the “explanations” to operative officer M. and before that same officer had detained him on the same day on the ground of him using obscene language in the immediate vicinity of the OVD Severniy, was that version based on some evidence other than the explanations of the operative officers of the OVD Severniy? What punishment was the applicant sentenced to for having committed the administrative offence and by what State authority? The Government are invited to submit the record of the administrative offence allegedly committed by the applicant, the decision finding the applicant guilty of that administrative offence and all other documents concerning the administrative proceedings brought against the applicant.   7.     What was the reason and ground for taking the applicant to the ROVD Sovetskiy on 19 June 2006? Did the authorities have a reasonable suspicion of the applicant having committed the crime (of which he was later convicted) before taking him to the police station? If so, what was the basis for such suspicion?   8.     Having regard to the fact that the applicant’s car had been searched in the morning of 17   June 2006 as the crime scene, that the applicant had been questioned at the OVD Severniy by operative police officer M. about his last meeting with the victim and her whereabouts, that according to the explanations by operative officers of the ROVD Sovetskiy P. and S. they had received information from the officer on duty at the OVD Severniy in the morning of 19 June 2006 that the applicant had probably possessed information about I.’s disappearance, and that the applicant was questioned on 19 June 2006 at the ROVD Sovetskiy by investigator S. about the victim’s disappearance and confessed to having murdered her (see the “Explanation” obtained from the applicant by investigator S.), was the applicant actually detained by the police officers of the ROVD Sovetskiy in the morning of 19   June 2006 and requested to give “explanations” on suspicion of him having committed a criminal offence involving the victim’s disappearance?   The Government are invited to submit an extract from the register of persons brought to the ROVD Sovetskiy on 19 June 2006, the records of the investigative activities in the case concerning I.’s disappearance carried out on 17, 18, 19, 20 and 21 June 2006, in particular, the record of the examination of the crime scene of 19   June 2006, the two records of the applicant’s examination as a suspect of 20   June 2006, the record of the verification of the statements at the crime scene of 20 June 2006 and the record of the applicant’s examination as an accused of 21 June 2006.   9.     Was the applicant informed promptly of the reasons for his arrest and of any charge against him at the ROVD Sovetskiy, as required by Article   5 §   2 of the Convention? Was he informed of his rights as a suspect? Was he given access to a lawyer? Was he given the possibility to inform his family of his detention?       Questions concerning the applicant’s alleged ill-treatment during the period between the moment of his actual apprehension by the police officers of the OVD Severniy in the morning of 17 June 2006 and the moment of his formal apprehension as a suspect on 20 June 2006:   1.     Having regard to the applicant’s medical examination on 20   June 2006 which revealed numerous injuries which could have been inflicted during the period from one to three days before the examination, was the applicant subjected to torture, inhuman or degrading treatment or punishment by the police officers of the OVD Severniy and ROVD Sovetskiy on 17, 18 and 19 June 2006, in breach of Article   3 of the Convention?   2.     Having regard to the procedural protection from torture, inhuman or degrading treatment or punishment (see Labita v. Italy [GC], no. 26772/95, §   131, ECHR 2000 ‑ IV), did the pre-investigation inquiry conducted by the domestic authorities into the applicant’s allegations of ill-treatment comply with the requirements of Article   3 of the Convention (see, among other authorities, Mikheyev v. Russia , no.   77617/01, §§   108-110 and 121, 26   January 2006)?   In particular:   (a)     Did the domestic authorities’ refusals to bring criminal proceedings into the applicant’s claim of ill-treatment and, hence, to conduct a preliminary investigation, according to Part VIII, Articles 150-226 of the Code of Criminal Procedure, breach the State’s obligation to conduct an effective, thorough and expeditious investigation?   (b)     Was the pre-investigation inquiry independent given that it was conducted by the prosecutor’s office which investigated and prosecuted the applicant in the criminal case against him and which relied in its day ‑ to ‑ day activities on the operative support of the police officers of the OVD Severniy and ROVD Sovetskiy against whom the applicant’s complaint was lodged?   The Government are invited to submit a copy of the decision by the investigator of the Kominternovskiy district prosecutor’s office not to bring criminal proceedings of 2 August 2006 and the decisions of the Kominternovskiy deputy district prosecutor of 30 July and 20   September 2006 to annul the investigator’s refusals to bring criminal proceedings of 1   July and 2 August 2006.   Question concerning the use of evidence allegedly obtained as a result of the applicant’s ill-treatment and in the absence of (efficient) legal assistance:   Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention, in view of his conviction being based on the above evidence which was allegedly obtained (i)     as a result of his ill ‑ treatment by the police officers and (ii)     in the absence of a lawyer (the explanation received from the applicant by investigator S. on 19 June 2006 and the record of the examination of the crime scene of 19   June 2006) or in the presence of lawyer P. appointed by the investigator who allegedly did not provide the applicant with efficient legal assistance, while the applicant’s request for access to a lawyer of his choice was allegedly ignored by the investigator? As regards the second aspect (ii), was the applicant able to defend himself through legal assistance of his own choosing, as required by Article   6 §   3   (c) of the Convention?   The Government are invited to submit exhaustive information and all documents concerning the disciplinary proceedings brought against lawyer P., in particular, a report by the qualification committee of the Voronezh Regional Bar Association and a decision of the Council of the Voronezh Regional Bar Association of 30 November 2006. What breach of the procedure for providing legal assistance by the investigating authority’s appointment was she found to have committed in the applicant’s case?