Communicated on 3 November 2015
THIRD SECTION
Application no. 50495/07
Aleksandr Nikolayevich BURLAKOV
against Russia
lodged on 4 October 2007
STATEMENT OF FACTS
1. The applicant, Mr Aleksandr Nikolayevich Burlakov, is a Russian national, who was born in 1984 and lives in Belgorod. He is represented before the Court by Mr E.I. Rozhkov, a lawyer practising in Belgorod.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
A. The applicant’s arrest and alleged ill-treatment
3. On 20 April 2007 at around 1 p.m. officers of the Belgorod regional department of the Federal Service for Drug Control (УФСКН РФ по Белгородской области) apprehended the applicant during a test purchase, conducted on suspicion that the applicant was involved in drug dealing. The applicant was taken to the regional office of the Federal Service for Drug Control.
4. According to the applicant, the officers beat him up and made him confess to drug dealing. The officers conducted a body search of the applicant and searched his car. They then drove him to his grandparents’ summer house, which is where the applicant said he had kept drugs. Finding no drugs, the officers allegedly put the applicant in the police car and started making threats that they would shoot him in the legs. They allegedly punched him and hit him with a pistol and choked him with the collar of his clothes. The applicant submits that he lost consciousness several times as a result of these actions.
5. On the same day at 6.10 p.m. the officers issued an administrative record of the applicant’s arrest. The applicant was informed that he had been arrested for using drugs. The documents relating to the administrative offence were forwarded to the Justice of the Peace. According to the applicant, the officers did not inform him of his right to have a lawyer.
6. On 21 April 2007 the Justice of the Peace of the Vostochniy Circuit of Belgorod ordered the applicant’s arrest for five days. The applicant was placed in a temporary detention facility (IVS).
7. On 25 April 2007 the Federal Service for Drug Control opened a criminal case against the applicant for involvement in drug dealing while the applicant was still under administrative arrest. On the same day the applicant was formally apprehended for forty-eight hours on suspicion of drug dealing. On 26 April 2007 the applicant was informed about the opening of the criminal case against him. On 27 April 2007 the court released the applicant on bail.
B. The applicant’s injuries
8. On 23 April 2007 an investigator of the Belgorod prosecutor’s office ordered the applicant to undergo a forensic medical examination following his complaints of alleged ill-treatment. According to the applicant, on 23 April 2007, he was taken to the examination by the same officers who had allegedly ill-treated him. The applicant further alleges that these officers talked in private with the expert before the examination. After the talk, the expert issued a report (no. 2079, dated 23 April 2007), indicating an effusion of blood into both eyes (кровоизлияние в глаза) and an unrelated eye illness. There is no copy of this report in the case file and the applicant submits that he was not able to obtain a copy.
9. On 27 April 2007, after his release on bail, the applicant went to the traumatology department of Belgorod town hospital no. 1, where the doctor diagnosed him with a possible contusion of both kidneys, with a question mark next to the diagnosis. On 28 April 2007 the applicant was examined by a urologist, who diagnosed him with a contusion of the right kidney and a contusion of the lumbar region.
10. The applicant further provided his photograph, allegedly taken on 28 April 2007, which shows signs of blood effusion into both eyes.
11. The applicant submits that his contusions were caused during the beatings by the officers on 20 April 2007 while the blood in his eyes was caused by the officers choking him the same day.
C. Pre-investigation inquiry into the applicant’s allegations of police ill‑treatment
1. Refusals to open a criminal case
12. On 23 April, 4 May and 11 June 2007 the applicant submitted his complaints of alleged ill-treatment against the officers of the Belgorod regional department of the Federal Service for Drug Control to the town, regional and general prosecutor.
13. On the dates specified below, the investigators of the prosecutor’s office of Belgorod issued successive refusals to open criminal proceedings against the officers. The refusals of 10 May and 11 June 2007 were issued pursuant to Article 24 § 1 (1) of the Code of Criminal Procedure (“the CCrP”) on account of the absence of any crime. Details of the other refusals were not provided. It appears from the case files that all the refusals to open a criminal case against the police officers for allegedly ill‑treating the applicant were systematically revoked by the higher authority within the prosecutor’s office for being unsubstantiated or unlawful, and the investigators were ordered to carry out additional inquiries.
No.
issued on:
revoked on:
(i)
10 May 2007
21 May 2007
(ii)
26 May 2007
8 June 2007
(iii)
11 June 2007
21 August 2007
(iv)
26 August 2007
28 August 2007
(v)
3 September 2007
[no information]
14. The applicant alleges that he was not able to receive copies of all the refusals to institute criminal proceedings against the officers. The case files contain the copies of only the refusals issued on 10 May and 11 June 2007.
15. According to the refusal of 11 June 2007, officers M., D., K., Sh., and B. denied ill-treating the applicant. They alleged that no physical force or special devices had been applied to the applicant on 20 April 2007. After the applicant had given his explanation concerning his involvement in drug dealing, he was taken for a search of his grandparents’ summer house, which the applicant said was a place where he had kept drugs. According to the officers, the search was conducted in the presence of the applicant and witnesses. The applicant was allegedly informed of his rights and did not make any comments about the search.
16. The refusals to open a criminal case against the officers do not make any reference to the applicant’s medical records or physical injuries, and no explanation is given about this.
2. Judicial review of the investigating authority’s most recent refusal
17. On 25 September 2007 the applicant appealed against the most recent refusal to open a criminal case against the police officers, dated 3 September 2007, to the Oktyabrskiy District Court of Belgorod in accordance with Article 125 of the CCrP. The applicant alleges that his appeal was not examined, and the court did not issue any decision concerning his appeal.
D. Judicial review of the applicant’s alleged deprivation of liberty
18. On 8 November 2007 the applicant lodged a complaint relating to his apprehension and deprivation of liberty between 1 p.m. and 6.10 p.m. on 20 April 2007 with the Oktyabrskiy District Court of Belgorod in accordance with Article 125 of the CCrP.
19. On 4 December 2007 the court dismissed the complaint, having noted that the pre-trial stage of the criminal proceedings against the applicant had been completed and his case had been sent to the court for trial. The court concluded that the applicant’s complaint must have been examined during the trial of his criminal case.
20. On 23 January 2008 the Belgorod Regional Court upheld that decision on appeal.
E. Criminal proceedings against the applicant
21. On 11 December 2007 the Oktyabrskiy District Court of Belgorod convicted the applicant of one count of drug dealing and sentenced him to two years’ imprisonment. It acquitted the applicant of four other counts of drug dealing.
22. During the trial the applicant denied being guilty of drug dealing. He requested the court to exclude certain evidence, including his explanations and the search records of 20 April 2007, which were allegedly obtained in breach of procedural requirements, by coercion and in the absence of a lawyer.
23. The applicant also expressly requested the trial court to obtain the materials from the prosecutor’s inquiry concerning his alleged ill-treatment by the officers, the forensic medical examination report of 23 April 2007 and his medical records from the hospitals and to examine those materials in trial. He also requested the trial court to order an additional forensic medical examination on the basis of his medical records and photographs. However, the trial court dismissed these requests, as can be seen in the record of the trial, as provided by the applicant. On 11 December 2007 the trial court dismissed the applicant’s allegations of ill-treatment, endorsing the results of the prosecutor’s inquiry into his complaints and the last refusal, of 3 September 2007, to open a criminal case against the officers. The trial court briefly noted that this refusal was lawful and was based on sufficient reasoning.
24. On 27 February 2008 the Belgorod Regional Court quashed the judgment of 11 December 2007 on appeal and remitted the case to the first‑instance court for re-examination, finding that the applicant had been incited to commit the crime by the officers. The appeal court did not address the issues of the applicant’s alleged ill-treatment and deprivation of liberty, although these issues had been expressly raised in his statement of appeal.
25. On 7 May 2008 the trial court convicted the applicant of three counts of drug dealing and sentenced him to two years and six months’ imprisonment. It acquitted the applicant of two other counts of drug dealing. The applicant this time pleaded guilty to the charges of which he was convicted. The applicant did not appeal against that judgment, which entered into force on 26 May 2008. It does not appear from the judgment that the trial court examined the issues of the applicant’s alleged ill‑treatment.
COMPLAINTS
The applicant complains under Article 3 of the Convention that he was subjected to ill-treatment by the officers of the Belgorod regional department of the Federal Service for Drug Control.
The applicant further complains under Article 5 of the Convention of his unlawful apprehension and deprivation of liberty between 1 p.m. and 6.10 p.m. on 20 April 2007, which was allegedly unrecorded.
The applicant also complains under Article 13 of the Convention of the lack of an effective investigation concerning his alleged ill‑treatment and the absence of effective domestic remedies concerning the alleged breaches.
QUESTIONS TO THE PARTIES
1. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, did his deprivation of liberty between 1 p.m. and 6.10 p.m. on 20 April 2007 fall within paragraph (c) of this provision?
2. Having regard to the court’s decision of 4 December 2007 and the Belgorod Regional Court’s decision of 23 January 2008, did the applicant have at his disposal an effective domestic remedy for his complaint under Article 5, as required by Article 13 of the Convention?
3. Having regard to:
(a) the applicant’s interview by the police officers about his alleged involvement in drug dealing, followed by the search of his grandparents’ summer house on 20 April 2007, before he was formally recognised as a suspect in criminal proceedings, and
(b) the injuries found on the applicant thereafter,
has the applicant been subjected to torture or inhuman or degrading treatment in breach of Article 3 of the Convention (see Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999‑V; and, among many other authorities, Polonskiy v. Russia, no. 30033/05, §§ 122-123, 19 March 2009; Gladyshev v. Russia, no. 2807/04, § 57, 30 July 2009; Alchagin v. Russia, no. 20212/05, §§ 53‑54, 56, 17 January 2012; A.A. v. Russia, no. 49097/08, §§ 75, 77 and 80-81, 17 January 2012; Yudina v. Russia, no. 52327/08, §§ 67-68, 10 July 2012; Ablyazov v. Russia, no. 22867/05, §§ 49-50, 30 October 2012; Tangiyev v. Russia, no. 27610/05, §§ 53-55, 11 December 2012; Markaryan v. Russia, no. 12102/05, §§ 60-61, 4 April 2013; Nasakin v. Russia, no. 22735/05, §§ 52-53, 18 July 2013; Aleksandr Novoselov v. Russia, no. 33954/05, §§ 61-62, 28 November 2013; Velikanov v. Russia, no. 4124/08, § 51, 30 January 2014)?
4. Have the authorities discharged their burden of proof by providing a plausible or satisfactory and convincing explanation as to how the applicant’s injuries were caused (see Selmouni, cited above, § 87, and Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000‑VII)?
5. Having regard to:
(a) the investigators’ refusals to open a criminal case and carry out an investigation into the applicant’s alleged ill-treatment by the officers,
(b) the revocation of those numerous refusals by the investigators’ superiors as being based on incomplete pre‑investigation inquiries, and
(c) the investigators’ inability to carry out measures within the framework of the pre-investigation inquiries, e.g. confrontations, identification parades, searches,
was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention (see Lyapin v. Russia, no. 46956/09, §§ 125-140, 24 July 2014)?
6. Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 3, as required by Article 13 of the Convention?
7. The Government are invited to submit documents containing the following information in respect of the applicant’s alleged ill‑treatment and unlawful detention in police custody:
(a) the time of his arrival and length of his presence at the police departments, cells for administrative offenders at the police departments, the temporary detention facilities (IVS), the pre-trial detention facilities (SIZO), the medical institutions (ambulance, traumatology centre, hospital, forensic medical examination bureau, etc.), where applicable;
(b) the applicant’s injuries and/or his state of health, as recorded in the places listed above in sub-paragraph (a);
(c) the applicant’s self-incriminatory statements or explanations to the officers in any form, e.g. a statement of “surrender and confession” (явка с повинной), or an explanation, etc., if applicable;
(d) the time when the applicant was recognised as a suspect in the criminal proceedings, was informed of his rights as a suspect, informed his family or other third parties about his detention, and had access to a lawyer;
(e) the forensic medical expert’s conclusions about the applicant’s injuries (including, inter alia, report no. 2079 dated 23 April 2007), the investigators’ decisions ordering the applicant’s forensic medical examination, and explanations by the applicant and officers as to the origin of the injuries, on the basis of which the expert’s opinion was sought;
(f) all medical documents from the traumatology unit and the no. 1 and no. 2 town hospitals of Belgorod, concerning the applicant’s complaints about the effusion of blood into both eyes and related medical treatment, allegedly prescribed to him on 27-28 April 2007;
(g) a summary of the information from the above list (sub‑paragraphs (a) to (f)).
8. As regards the inquiry into the applicant’s alleged ill‑treatment, the Government are invited to submit:
(a) a numbered list of all decisions by investigating authorities in chronological order, including, inter alia, the refusals to open a criminal case against the officers of 10 and 26 May, 11 June, 26 August and 3 September 2007 (name of the relevant authority, date, the relevant provision of the Code of Criminal Procedure which served as grounds for the refusal to open a criminal case, and, for each instance, the decision to revoke it or set it aside, including, inter alia, the decisions of 21 May, 8 June, 21 and 28 August 2007 (with the name of the authority, date, and the reason for the revocation or setting aside);
(b) a numbered list of all court decisions on the applicant’s appeals against the investigators’ decisions in chronological order (court, date and outcome), including, inter alia, the decision of the Belgorodskiy District Court of 3 July 2007;
(c) copies of the above decisions by the investigating authorities and the courts in the same order; and
(d) the documents relating to inquiry no. 1436-пр-07 by the prosecutor’s office of Belgorod in response to the applicant’s complaints of alleged ill‑treatment, and the conclusions, issued on 25 May 2007.
9. In addition, the Government are invited to submit the record of the hearing of the applicant’s criminal case, which resulted in the final judgment against the applicant, dated 7 May 2008.
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