CEDH · CASELAW;COMMUNICATEDCASES;ENG — 27 septembre 2018

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The facts of the cases, as submitted by the applicants, may be summarised as follows. A.     The circumstances of the cases Between 2014 and 2017 the applicants were arrested by different law ‑ enforcement authorities. Mr Vasilyev (application no. 8337/18) was eventually convicted. There is no information as to the status of the criminal proceedings against Mr Kakaulin and Mr Dereberya (applications no.   14142/18 and no. 29526/18). During the applicants’ arrest the police officers used physical force, and in the cases of Mr   Vasilyev and Mr Dereberya they used handcuffs. According to the applicants, the force used was excessive because they did not resist the arrest. They submitted medical certificates drawn up shortly after their respective arrests and demonstrating the existence of bodily injuries of different types and severity. The applicants complained about the excessive use of force to the domestic authorities. The domestic authorities refused to institute criminal proceedings, except in Mr Kakaulin’s case, in which the proceedings were eventually terminated. The domestic courts dismissed the applicants’ appeals against investigators’ decisions. The applicants’ personal details as well as other relevant information about the circumstances of their respective arrests and their attempts to complain about ill-treatment at domestic level are summarised in the Appendix. B.     Relevant domestic law and practice 1.     The Police Act Sections 18-20 of the Police Act 2011 (Federal Law no. 3-FZ of 7   February 2011) provide that -     a police officer may use physical force, special means or a weapon during the arrest, -     a police officer shall ensure that an injured person receives first aid, -     once the physical force used results in the damage to health, and once special means or a weapon are used a police officer shall submit a report about the use of physical force, special means or a weapon to his supervisor within twenty-four hours. The Police Act 1991 (Federal Law no. 1026-I of 18 April 1991) and respective by-laws contained similar provisions. 2.     Other by-laws The Instruction on the police officers’ execution of their obligations and rights in the police departments of the Ministry of the Interior after persons are taken to police custody (approved by order no. 389 of the Ministry of the Interior of the Russian Federation on 30 April 2012) provides that -     a police officer on duty in police custody shall inform his superior about all cases when a person arrested and taken to police custody has visible wounds, injuries or is in a state that requires urgent medical intervention; -     a police officer is to call an ambulance or take a person to a nearby hospital; -     a police officer is to find out the reasons and circumstances of the injuries sustained by the person concerned. If the person concerned reports violent actions that resulted in his injuries then the police officer is to receive a criminal complaint from the person, if not, then to draw up a reasoned report and register it in the Register of the criminal complaints. The Instruction repeated the rules that were in force before its adoption. COMPLAINTS The applicants complain under Article 3 of the Convention about the excessive force used in the course of their arrests and about the lack of an effective investigation in this respect. Mr Kakaulin also complains under Article 13 of the Convention that he did not have an effective domestic remedy at his disposal.   COMMON QUESTIONS 1.     Regard being had to the medical certificates submitted by the applicants (for more details see the Appendix), were they subjected to ill ‑ treatment, in breach of Article 3 of the Convention, at the hands of police in the course of their arrest? 1.     As regards the Government’s burden of proof (a)     have the domestic authorities discharged their burden of proof by providing a plausible or satisfactory and convincing explanation on how the applicants’ injuries   had been caused (see Selmouni v. France [GC], no.   25803/94, § 87, ECHR   1999 ‑ V, and Salman v. Turkey [GC], no.   21986/93, §   100, ECHR 2000 ‑ VII)? In particular, -     did the police officers report to their supervisor about the use of physical force or/and special means during the arrest (see Shamardakov v. Russia , no. 13810/04, § 133, 30 April 2015)? -     if so, did the reports provide detailed explanation about the circumstances of the applicants’ arrest, including the use of force against them (see Türkan v. Turkey , no. 33086/04, § 48, 18 September 2008)? -     does the Russian legislation and/or regulatory framework provide for an obligation to take an apprehended person without delay before a medical professional, notably with a view of recording the injuries sustained by an apprehended person prior or during the arrest? -     if so, was this obligation complied with in the present cases ( Mammadov v. Azerbaijan , no. 34445/04, § 65, 11 January 2007)?   The Government are invited to produce documentary evidence, including the reports drawn up by police officers about the circumstances of the applicants’ arrests and the medical evidence. 2.     As regards the necessity and the proportionality of the force used (b)     was the recourse to physical force made strictly necessary by the applicants’ own conduct (see Rizvanov   v.   Azerbaijan , no. 31805/06, §   49, 17 April 2012)? In particular, -     did the State agents plan the arrest operations in advance? -     did they have sufficient time to evaluate the possible risks and to take all necessary measures for carrying out the arrest (see Rehbock v. Slovenia , no. 29462/95, § 72, ECHR 2000 ‑ XII; Grigoryev v. Russia , no. 22663/06, §   83, 23 October 2012, Davitidze v. Russia , no. 8810/05, § 90, 30 May 2013, Minikayev v. Russia , no. 630/08, §§ 59-60, 5 January 2016)?   2.     Did the authorities carry out an effective official investigation into the applicants’ allegations of ill-treatment in the course of their arrest as required by Article 3 of the Convention (see Labita v.   Italy [GC], no.   26772/95, § 131, ECHR 2000 ‑ IV, Lyapin v. Russia , no.   46956/09, §§   125-40, 24 July 2014)? In particular,   in cases in which the applicants’ arrests were carried out by masked officers, did they display visibly some anonymous signs allowing their identification and questioning in the event of challenges to the manner in which the operation was conducted (see Hristovi v. Bulgaria , no. 42697/05, § 92, 11 October 2011, and Anzhelo Georgiev and Others v. Bulgaria , no.   51284/09, § 73, 30 September 2014)? APPENDIX No. Application no. Lodged on Applicant name Date of birth Place of residence Nationality Represented by Details about arrest, location of the police station, arrest record (if available) Report drawn up by the police officers about the circumstances of the arrest and the use of force Medical evidence: date of examination, document type (date of the document) Applicants’ complaints about ill ‑ treatment to the domestic authorities (reasons for refusals) Applicants’ trial and appeal courts’ judgments   8337/18 12/01/2018 Aleksandr Yuryevich VASILYEV 01/01/1977   Pervouralsk   Russian   15/06/2014 (around 5.00 a.m.)   Arrest outdoors by police officers who had allegedly shot from a non-lethal weapon hitting the right eyebrow   Police department, Pervouralsk, Sverdlovsk Region ( ОМВД России по г. Первоуральск )   15/06/2014 (around 5.30 p.m.) Taken to the hospital   15/06/2014 (time unspecified) Arrest record drawn up   23/06/2014 Report drawn up in SIZO about visible injuries (dislocated bone fracture in the right arm, bruise on the chest) No information No medical acts in the case file. As follows from the court decisions:   15/06/2014 Extract from medical certificate no.   720 (contused wound in the left parietal lobe and right eyebrow, dislocated bone fracture in the right arm)   18/07/2014 Extract from medical examination report no. 975   16/10/2015 Extract from forensic medical examination report no. 1360 (examination conducted on the basis of the documents, absence of the description of injuries’ particularities did not allow to determine their timeframe and causes)   2017 No information about the date Extract from forensic medical examination report no. 218-доп (examination conducted on the basis of the documents) 15/06/2014 First complaint to the police department   15/03/2017 Latest (sixth) refusal to open a criminal case   (the applicant disobeyed lawful orders of the police officers, the origins of injuries were impossible to determine, they could result from the falling on the ground during the arrest, handcuffs were used to overcome his resistance)   25/08/2017 Sverdlovsk Regional Court   (the domestic courts examined the applicant’s complaint about the ill-treatment in light of the procedural rules, finding no ground for the complaint) 18/07/2014 Pervouralskiy City Court   No details about the conviction   14142/18 12/03/2018 Pavel Sergeyevich KAKAULIN 02/02/1987   Krasnoyarsk   Russian   Aleksandr Aleksandrovich BRESTER   20/03/2015 (around 5 p.m.)   Arrest at the applicant’s flat by the police officers of the Krasnoyarsk Region Department of the Federal Drug Control Service ( УФСКН по Красноярскому краю ) who had broken into the flat through the balcony   20/03/2015 Taken directly to the hospital   23/03/2015 Arrest record drawn up 20/03/2015 As follows from the authorities’ decisions, officer Sh. reported that physical force had been used, in particular, he had knocked the applicant down as a result of the latter’s attack with a knife and further resistance 23/03/2015 Medical epicrisis (head injury, contusion of the brain, fracture of the parietal bone)   04/08/2015 Forensic medical examination act no. 528 (not possible to determine the causes precisely)   12/11/2015 Forensic medical examination act no. 800   01/12/2015 Forensic medical examination act no. 849   04/07/2016 Forensic medical examination act no. 506   07/12/2016 Forensic medical examination act no. 956 20/03/2015 Hospital’s report to the police about the applicant’s injuries   03/07/2015 First complaint to the investigative committee   03/07/2015 Criminal case opened   12/12/2016 Latest decision to terminate criminal proceedings   16/10/2017 Oktyabrskiy District Court of Krasnoyarsk   (during the arrest the officers knocked the applicant down to the floor, as a result the applicant fell and hit his head against the floor and standing out objects) 21/03/2015 Criminal case opened against the applicant into a drug-related crime   No information about further developments of the proceedings   29526/18 06/06/2018 Vladimir Borisovich DEREBERYA 09/11/1973   Taganrog   Russian   Aleksandr Vladimirovich KIRYANOV 04/08/2017 (at 11.30 p.m.)   De facto arrest outdoors in the context of identity check Police station no. 1 in Rostov-on-Don ( Отдел полиции №1 УМВД по Ростову-на-Дону )   05/08/2017 (at 8.00 p.m.) Arrest report drawn up 05/08/2017 Report about the use of force (the applicant attempted to escape, the officers twisted arms behind his back and handcuffed him)   05/08/2017 Medical card Contusion of the tenth left rib 30/01/2018 Voroshilovskiy District Court of Rostov-on-Don   (at the request of the prosecutor the court ordered to conduct examination upon the applicant’s complaints about ill-treatment during the arrest)   02/03/2018 Refusal to open a criminal case (in addition to the explanation contained in the Report, the applicant resisted and fell on the ground)   06/03/2018 Investigative Committee of the Voroshilovskiy district quashed the refusal (in view of the incomplete examination)   06/03/2018 Voroshilovskiy District Court dismissed the applicant’s complaint under Art. 125 CCP about the inactivity of the investigator   26/04/2018 Rostov Regional Court dismissed the appeal   No information about further developments of the proceedings 05/08/2017 Investigative Department in Rostov-on-Don opened a criminal case against the applicant into illegal drug storage in large scale   No information about further developments of the proceedings