CASE OF LYKOVA v. RUSSIA

THIRD SECTION

CASE OF LYKOVA v. RUSSIA

(Application no. 68736/11)

JUDGMENT

(Extracts)

STRASBOURG

22 December 2015

FINAL

02/05/2016

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Lykova v. Russia,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Luis López Guerra, President,
Helena Jäderblom,
George Nicolaou,
Helen Keller,
Dmitry Dedov,
Branko Lubarda,
Pere Pastor Vilanova, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 1 December 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 68736/11) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Irina Nikolayevna Lykova (“the applicant”), on 26 October 2011.

2. The applicant, who had been granted legal aid, was represented by Ms O.A. Gnezdilova, a lawyer practising in Voronezh. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.

3. The applicant complained about her son’s death in a police station, alleging that he had been detained there unlawfully and subjected to ill-treatment by police officers.

4. On 13 September 2012 it was decided to grant priority to this application under Rule 41 of the Rules of Court, and on 21 October 2013 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1964 and lives in Voronezh (Voronezh Region).

A. The alleged ill-treatment and the death of the applicant’s son

1. The version of events submitted by the applicant

6. On 9 September 2009, between 10 and 11 a.m., the applicant’s son, Mr Sergey Lykov, and his friend P. were stopped by police officers at a bus stop in Voronezh. They were given no reasons. Sergey Lykov and P. were then taken to the premises of department no. 6 of the Voronezh Region criminal police (оперативно-розыскная часть № 6 криминальной милиции главного управления внутренних дел по Воронежской области) (hereafter, “the police station”).

7. Inside that police station, a police officer, S., ordered the other police officers present to undress Mr Lykov and P. and to bind their hands and feet with adhesive tape. S. began punching Mr Lykov and P. on the head, urging them to confess to all the thefts that they had committed. Faced with their silence, S. and another police officer began to hit each of their heads violently against the ground, as well as against a cupboard and a table. After 15 minutes they stopped striking them and S. ordered one of the police officers to “give [P.] a fashionable haircut” by cutting locks of his hair with a knife. S. and other police officers then placed plastic bags around the heads of Mr Lykov and P. to suffocate them. Faced with the repeated nature of these actions, Sergey Lykov, who was exhausted, asked S. to tell him what he wanted to know. S. again asked him to confess to the alleged thefts. Mr Lykov then admitted that they had burgled an apartment in 2007. S. ordered the police officers to take Sergey Lykov to another room.

8. The police officers continued to torture P. with electricity. A few minutes later the police officer returned Sergey Lykov to the office. According to P., Sergey Lykov was “in a bad way”, although he had no obvious physical injuries. P. was taken to another office, where he began writing a confession. While he was writing, he heard Sergey Lykov betin to cry out. According to P., his cries lasted a good hour. Shortly afterwards a police officer came into the room where P. was being held and told him that they were going to the scene of the 2007 burglary. P. stated that Sergey Lykov was not with them during this visit and that he had not seen him again afterwards. P. was finally taken to a temporary detention centre, where he was examined by a doctor who noted several physical injuries (bruises and grazing on his arm). P. learned later that Mr Lykov had thrown himself out of a window.

2. The version of events submitted by the Government

9. On 7 September 2009 a decision (постановление о приводе) was issued ordering P.’s arrest for the purpose of questioning him as a witness.

10. On 9 September 2009 police officers found P. in a street in Voronezh, in the company of Sergey Lykov. They asked the two friends to accompany them to the police station. Mr Lykov was invited for the purpose, in particular, of “provid[ing] useful information”, in line with section 11 § 4 of the Police Act of 18 April 1991, then in force. Sergey Lykov accepted the invitation of his own free will.

11. After discussions with police officer T. at the police station, Sergey Lykov decided to confess to a theft purportedly committed on 4 September 2009, and provided a written statement to that effect. T. informed Mr Lykov of his constitutional right not to incriminate himself.

12. At 6.50 p.m., after having finished writing his confession, Sergey Lykov suddenly threw himself out of the open window of T.’s office, which was on the fifth floor.

3. Subsequent events

13. At 7.50 p.m. Mr Lykov arrived at hospital with an emergency medical assistance team. He died at 1.10 a.m. on 10 September 2009.

14. Sergey Lykov’s cousin I., who had had no news of him, carried out a search and on 10 September 2009 she finally found his corpse in the Voronezh morgue. After examining the body, I. noted that it had signs of numerous physical injuries, in particular a haematoma above the left eyebrow, facial injuries and haematomas on the wrists.

15. On 13 September 2009 I. wrote to the Prosecutor General of Russia, requesting that an investigation be opened into the death of Sergey Lykov. She informed the Prosecutor that her cousin had been arrested on 9 September 2009 while he was with his friend P.

16. On 22 September 2009 police officer B. from the Tsentralny district police station in Voronezh issued a decision refusing to open a criminal investigation into the supposed theft, on the street, of a mobile telephone, to which Sergey Lykov had confessed: B. noted that the avowed offence of theft had never been recorded in the registers of complaints by victims of offences, which were held by the police.

B. The preliminary investigation into the death of Sergey Lykov

1. The first part of the investigation

17. One hour after the incident (at 8 p.m.), an investigator, Ya., from the Voronezh Leninskiy district Investigation Committee arrived on the scene and examined the premises, in particular Office no. 55, from where Mr Lykov had fallen. The investigator seized from the scene a gas mask and a telephone, as well as the sheet of paper with Sergey Lykov’s written confession. She indicated that she had not found traces of blood in the office, but only on the grass area below the window.

18. By a decision of 21 September 2009, investigator L. from the same department refused to open a criminal investigation into the victim’s death. Referring to Article 24 § 1 (1) of the Russian Code of Criminal Procedure, he concluded that no offence had been committed.

19. The investigator summarised the explanations provided by police officer T., who stated that:

– at 3 p.m. on 9 September 2009 Sergey Lykov and his friend P. had been taken to the police station by police officers S. and F.; the second individual (P.) was being sought on suspicion of theft;

– during an interview between T. and Mr Lykov, the latter had confessed voluntarily to a theft. Although he had started writing a confession, Mr Lykov suddenly stood up and climbed onto a chair, then onto a table which was beside the open window, and then finally jumped from this window;

– T. had rushed to prevent him from jumping, but he was too late;

– no police officer had struck Sergey Lykov or had forced him to confess to the offence. According to T., Sergey Lykov had no physical injuries;

– during the interview Mr Lykov had been calm, but he complained to T. that his life was difficult, since he had to care for his ill mother.

20. The investigator also summarised the explanation provided by police officer Sa., who stated that:

– at 2 p.m on 9 September 2009 while on patrol in the city, he and two other police officers had seen two individuals on a scooter. Since they had information that an individual suspected of theft was moving about on a scooter, they had stopped the persons concerned for an identity check. They had invited Sergey Lykov and P. to accompany them to the police station and they had agreed;

– on arrival at the police station, Mr Lykov and P. had been separated. Sa. and F. had interviewed P., while T. had had a conversation with Mr Lykov;

– on entering T.’s office at a later point, Sa. was able to note that Sergey Lykov was not handcuffed and had not been struck. He had heard Mr Lykov confess to the theft of a mobile telephone;

– he had not heard Sergey Lykov complain of ill-treatment of any kind;

– later he had learnt that Mr Lykov had attempted to take his own life.

21. The investigator also noted that in response to his questions, police officer S. had denied any involvement in ill-treatment of Sergey Lykov.

22. At the same time, the investigator noted the statements made by P., to the effect that:

– between noon and 1 p.m. on 9 September 2009 he and Sergey Lykov had been in the city centre when police officers approached, introduced themselves and asked him [and Sergey Lykov] them to accompany them to the police station. They had agreed;

– at the police station, he and Sergey Lykov had been separated and placed in different offices. Shortly afterwards, when passing in the corridor, he had seen Sergey Lykov sitting at a table writing something. He had not seen Sergey Lykov being struck, had not heard him crying out, and had not noticed any physical injury on his person;

– he had heard Sergey Lykov complain of heart pains, but never refer to an intention to commit suicide.

23. The investigator took note of the statements by the applicant, and also of close relatives of the victim, to the effect that he had never expressed thoughts of suicide.

24. The investigator noted the presence in the case file of the written confession drawn up by Mr Lykov shortly before his death.

25. Relying on the information communicated by the hospital in which Mr Lykov had been treated after his fall, the investigator established that death had resulted from Mr Lykov’s fall from the fifth floor. No injuries indicating kicks or punches, or the use of handcuffs, had been found on the corpse.

26. Lastly, the investigator noted the contents of the report from the on-site inspection conducted on 9 September 2009 (see paragraph 17 above).

27. On 28 June 2010 the decision of 21 September 2009 was set aside by a hierarchically superior civil servant, who ordered an additional investigation, noting, in particular, that it was necessary to:

– find witnesses who could confirm that Sergey Lykov had suicidal thoughts;

– verify that the police officers who had taken Sergey Lykov to the police station had acted in accordance with the law;

– consider whether the police officers who had not ensured the victim’s safety inside the police station bore any criminal liability.

28. In the meantime, on 27 October 2009 an autopsy of the body was carried out on the orders of investigator L. and a forensic report was drawn up. In that document, the forensic medical expert noted that death had resulted from multiple fractures to the head, chest and spine, and to the base and dome of the skull. According to the expert, the location of the injuries identified, and the preponderance of internal over external injuries, led to the conclusion that those injuries had originated in [Mr Lykov’s] fall from the fifth floor. The expert concluded that there was no cause-and-effect relationship between the other injuries (hematomas and scratches on the trunk and the lower and upper limbs, namely a hematoma in the fold of the right elbow measuring 4 x 3 cm; a scratch on the right forearm measuring 6 x 0.7 cm; a 4.5 x 2 cm hematoma on the right carpus; a hematoma on the left shoulder measuring 18 x 14 cm, on which there were scratches of 5 x 2.5 cm; a hematoma on the left knee measuring 7 x 6 cm, on which there was a scratch of 1.5 x 1 cm; and an oval-shaped scratch on the left ankle measuring 2 x 1.5 cm) and the death. As to the question of whether there were traces of a struggle or self-defence, the doctor indicated that it was generally accepted in forensic medicine that injuries to the arms and wrists were to be classified in that way. Thus, he noted the presence of a bruise on the right carpus and a scratch on the right forearm. He added that he was unable to ascertain how those injuries had been sustained. Lastly, the doctor noted that the corpse had been deposited in the morgue unclothed.

2. The second part of the investigation

29. By a decision of 8 July 2010, investigator Ko. from the same department again refused to open a criminal investigation.

In his reasoning, he quoted from the statements given by police officers T., Sa. and S., by witness P., and also by the applicant and the deceased’s close relatives, already cited in the decision of 21 September 2009 (see paragraph 18 above).

30. The investigator also questioned certain individuals who had got to know Sergey Lykov in a café where they drank alcoholic beverages together. Those persons explained that when Sergey Lykov drank alcohol he became talkative and that, in this intoxicated state, he complained about a lack of money and difficulties with his invalid mother. He had also confided to his companions that he had committed thefts and that, were he arrested, he “would harm himself”.

31. The investigator also noted a directive, classified as secret, for the attention of police officers. According to that directive, the police were not personally responsible for the life and health of individuals who had freely consented to attend a police station for an interview, “except in the event of violation of the rights and freedoms of citizens proclaimed in the Russian Constitution”. Regard being had to that directive and the facts noted, the investigator concluded that officer T. could not be held responsible for the offence of negligence.

32. The investigator concluded that Sergey Lykov’s death had been the result of a voluntary act on the latter’s part. In consequence, the investigator refused to open a criminal investigation against the police officers F., B., Sa. and T. for an abuse of power, on the grounds, firstly, that Sergey Lykov’s arrest had not been illegal, and, secondly, that the police officers had not ill-treated him. He also concluded that there were no grounds for prosecuting the police officers for homicide, assault or incitement to suicide, given that Sergey Lykov’s death “had not been violent”.

33. On 11 February 2011 the applicant lodged a judicial appeal against that decision. She complained, inter alia, that her son had been placed in detention without this fact being properly recorded, and that, in consequence, her son had been deprived of legal assistance. Equally, she submitted that the investigation carried out had been incomplete and focused on a hypothesis that was favourable to the police officers. She criticised the investigative authorities for failing to conduct a forensic examination of the gas mask seized in the police station in order to obtain genetic material, including perhaps that of her son. According to the applicant, a handwriting expert’s report should also have been commissioned in order to determine her son’s psychological state when he wrote the confession. Further, referring to the autopsy report, which stated that the corpse had injuries that could be interpreted as traces of a struggle or self-defence, the applicant accused the authorities of failing to explain the origin of those injuries, and the cause of her son’s death.

34. On 18 April 2011 the Leninskiy District Court of Voronezh upheld the contested decision. In its reasoning, the court reiterated the arguments set out in the investigator’s decision and considered that the investigation had been complete and thorough. In response to the applicant’s arguments, the court expressed the opinion that a handwriting analysis was unnecessary, since the deceased’s family had confirmed the handwriting’s authenticity. Equally, a DNA examination of samples from the gas mask was unnecessary, since Sergey Lykov’s death had not resulted from suffocation. Thus, the court concluded that there was no evidence in support of the idea that the deceased had been subjected to ill-treatment by the police officers or that he had been arrested or detained unlawfully.

35. On 11 August 2011 the Voronezh Regional Court upheld the decision, on appeal, for the same reasons.

36. On 11 October 2012 the applicant’s lawyer sent a letter to the head of the Investigation Committee of Russia, asking him to open a new criminal investigation into the death of Mr Lykov and to entrust this investigation to the department for investigations into offences committed by State employees of the armed forces, a department that was part of the Investigation Committee of Russia in the Tsentralny federal constituency. The lawyer expressed the fear that if the requested investigation were to be carried out by investigators from the Voronezh regional department of the Investigation Committee, that investigation would be ineffective. She argued that, without having available to them locally-based agents to gather the necessary information, the investigators from the latter department would have no choice but to use officers from the Ministry of the Interior, among whom might be those involved in the victim’s death.

37. On 14 November 2012 the Voronezh regional department of the Investigation Committee dismissed that request, considering that the decision of 8 July 2010 had been in accordance with the law and that there were no grounds for revoking it and opening a criminal investigation.

C. Witness statements by P. and the events concerning him

38. On 10 September 2009, the day after his arrest, P. was taken to a temporary detention centre (“IVS”). During his admission, a doctor’s assistant noted the following physical injuries: a bruise on the left shoulder-blade, scratches on the elbows and knees, and a bruise on the right ear. The medical assistant drew up a report recording the injuries and noting that they were the result of a road-traffic accident that had occurred on 9 September 2009. The medical examination was carried out in the presence of police officers who had participated in the beating. According to P., it was the police officers who provided the medical assistant with the road-accident version of events, while he himself, for fear of reprisals, had been obliged to confirm it.

39. On 11 September 2009 P. was transferred to remand prison no. 1 in Voronezh. On admission, he was examined by a doctor who found the same injuries as those observed in the IVS.

40. On an unspecified date in September 2009 P. lodged a complaint about the alleged ill-treatment at the police station. According to P., this complaint led to him being taken on the following day to the police station, where he was beating in reprisal. Then – again according to his submissions –, P. withdrew his complaint in fear for his life when investigator Ya. came to the remand prison to question him about the circumstances of the ill-treatment. According to P., in response to his question about possible consequences for the police officers involved in beating Mr Lykov and himself, investigator Ya. replied that, in any event, there had been none.

41. On 5 October 2009 inspector Ya. from the Voronezh regional department of the Investigation Committee issued a decision refusing to open a criminal investigation. She recounted the explanation provided by police officer Sa., who had denied any ill-treatment, and, noting P.’s withdrawal of his complaint, concluded that no ill-treatment had occurred.

42. In the meantime, the criminal investigation against P. continued, and resulted in an examination on the merits by the Voronezh regional Court. At the public hearing on 1 February 2011 P. made a statement. He withdrew the account given by him in the context of the investigation into the death of Sergey Lykov. P. described the events of 9 September 2009 as they are set out in paragraphs 6-8 of the present judgment. He added that police officer S. had threatened him if he were to withdraw his confession to the thefts or make statements about the events surrounding the arrest and death of Mr Lykov. He added that S. had beaten him again prior to the court hearing concerning his placement in pre-trial detention, in order to prevent him lodging a complaint before the judge. He also alleged that he had been subjected to unprovoked attacks by the administration of the remand prison in which he was detained. P. asked to be placed under protection in his capacity as a witness of the ill-treatment inflicted on Sergey Lykov by police officers. He also asked that criminal proceedings be brought against police officer S. for abuse of power and for the murder of Mr Lykov. P. suggested that the criminal investigation into the death be reopened.

43. The judge ordered that P.’s written statement be included in the case file. With regard to P.’s requests in respect of S. and Mr Lykov, the judge replied that the latter’s death was unrelated to the ongoing trial; as for S., he was not a party to the trial proceedings. In consequence, she dismissed those requests.

44. At one of the subsequent hearings P. complained that, after the above statement, the remand prison’s administration threatened him.

45. On 30 June 2011 the prosecutor for the Leninskiy district of Voronezh set aside the decision refusing to open a criminal investigation in respect of P.’s supposed torturers. The prosecutor ordered an additional investigation. The Court has not been informed of the outcome of this investigation.

46. After serving his sentence, P. was released. He submits that he has received several threats in connection with the present case. For fear of reprisals, he moved to Sweden. In his letter of 20 April 2014 to the Investigation Committee, sent from abroad, P. offered to act as a witness, but he was never questioned.

D. Events occurring after the application was communicated to the Government

47. On 23 December 2013 a hierarchically superior State employee in the Voronezh regional department of the Investigation Committee set aside the decision of 8 July 2010, noting that the department had received new information concerning the death of Sergey Lykov from the European Court of Human Rights. He ordered an additional investigation, in particular so that P. could be questioned and his allegations of ill-treatment verified.

48. On 10 January 2014 the deputy head of the Voronezh regional department of the Investigation Committee ordered the opening of a criminal investigation within the meaning of Article 146 of the Code of Criminal Procedure. In his reasoning, he noted that Ms Lykova’s application, which was being examined by the European Court of Human Rights, contained elements suggesting that Mr Lykov had been subjected to ill-treatment by the police officers.

49. On 16 January 2014 investigator L. from the Investigation Committee ordered a second forensic medical report, to answer, inter alia, the following questions: whether Mr Lykov’s body showed injuries and, if so, where; if the body showed injuries resulting from a struggle, ill-treatment, the use of handcuffs or restraint of the upper or lower limbs using adhesive tape; and whether there were signs of electrocution. The Government have not indicated whether that medical report was drawn up. In any event, no expert report was added to their observations.

50. The investigator questioned police officers Sa. and F.; the first reiterated the explanation he had provided in 2009 (see paragraph 17 above), and the second gave similar explanations. The investigator also questioned a certain V., who allegedly stated that he occasionally drank alcoholic beverages in Sergey Lykov’s company and indicated that the latter was a drug addict who committed thefts to obtain money, and that he had spoken to him about his difficulties with his invalid mother. According to V., Sergey had confided in him that, if he were arrested, he “would harm himself”.

51. The investigator questioned the deceased’s grandmother and cousin, who stated that, to their knowledge, Sergey did not take drugs, did not abuse alcohol, and had never expressed thoughts of suicide.

52. On 13 January 2014 the investigator issued a decision granting the applicant victim status.

E. The internal investigation within the Ministry of the Interior

53. On 27 October 2009, at the close of an internal investigation into the police officers’ conduct, the Internal Security Service of the Voronezh regional department drew up a report; its conclusions can be summarised as follows: referring to the decision of 21 September 2009 (see paragraph 17 above), the regional department considered that Sergey Lykov had indeed taken his own life and that no fault on the part of the police officers had been established. At the same time, the Service described as a lack of professionalism the fact that police officer T. had not taken sufficient care in controlling Mr Lykov’s conduct, a shortcoming that had enabled the latter individual to throw himself from the window.

II. RELEVANT DOMESTIC LAW AND PRACTICE

54. For the relevant domestic law concerning criminal liability for murder, incitement to suicide or abuse of office, as well as the criminal procedure, see the judgment in Keller v. Russia, no. 26824/04, §§ 54-61 and 67‑73, 17 October 2013.

55. For a description of the powers given to the police by section 11 of the Police Act of 18 April 1992, see the judgment in Shimovolos v. Russia, no. 30194/09, §§33-34, 21 June 2011.

56. For a description of the status of the special department responsible, within the Investigation Committee of Russia, for investigating offences committed by civil servants within the security forces, see the judgment in Razzakov v. Russia, no. 57519/09, § 43, 5 February 2015.

57. According to Article 19.3 of the Code of Administrative Offences, apart from where such an order is unlawful, a refusal to obey an order given by a police officer acting in the exercise of his or her duties to protect public order is punishable by an administrative fine ranging from 500 to 1,000 roubles or up to 15 days’ administrative detention.

58. According to the joint directive of 29 December 2005 from the department of the Prosecutor-General of Russia (no. 39), the Ministry of the Interior (no. 1070), the Ministry of Emergency Situations (no. 1021), the Ministry of Justice (no. 253), the Federal Security Service (no. 780), the Ministry of Economic Development (no. 353) and the Committee for Controlling the Circulation of Drugs (no. 399), on the unified recording of offences (“О едином учете преступлений”) (hereafter “Instruction no. 39”), judges are empowered to take note of a verbal statement complaining of a criminal offence where such a statement is made at the hearing, while prosecutors and investigators are empowered to do so in all other circumstances (§ 7). The relevant extract of the official record is then brought to the attention of the authority with competence for reviewing the events complained of. This authority must register the information included in it (§ 22). No civil servant who has competence to take measures to record these verbal statements may refrain from doing so (§ 24).

THE LAW

I. ALLEGED SUBSTANTIVE VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION

A. The parties’ submissions

110. The Government considered that the factual basis of a violation of Articles 2 and 3 of the Convention in respect of the applicant’s son had not been established beyond all reasonable doubt. They argued that the death of the applicant’s son had been the result of his throwing himself out of a window on the fifth floor. Sergey Lykov had committed this suicidal act, they asserted, on account of an unhappy set of personal circumstances, which the police officers had not been in a position either to foresee or to prevent. According to the Government, the forensic doctor had been unable to determine whether certain injuries could be attributed to reasons other than the fall – in particular the use of handcuffs, a struggle or ill-treatment.

111. The applicant contested that argument. She noted that the existence of a torture session inflicted on her son had been attested by the statements of witness P., who had been present in the police premises. She thus dismissed as absurd the version of suicide, since her son had never expressed any intention whatsoever of taking his own life. Moreover, the applicant pointed out the contradictions which, in her opinion, undermined this version: if – as the Government implicitly alleged – her son had simply preferred death to the perspective of going to prison, she could hardly see why he would have decided to confess to an offence that had been unknown to the police themselves up until that point (see paragraph 16 above). For the remainder, the applicant considered that it could not be excluded that the act of defenestration was more a gesture of despair than an act of suicide as such. Referring to the Mikheyev judgment (Mikheyev v. Russia, no. 77617/01, 26 January 2006), she supposed that her son, after several hours of unbearable torture, had been in such a state of mind that he saw no other solution but to throw himself from the window to escape his suffering.

B. The Court’s assessment

112. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

1. General principles

113. The Court reiterates that Article 2 ranks as one of the most fundamental provisions in the Convention, one which, in peace time, admits of no derogation under Article 15. Together with Article 3, it enshrines one of the basic values of democratic societies. The Court reiterates that the first sentence of Article 2 enjoins the Contracting States not only to refrain from the taking of life “intentionally” or by the “use of force” disproportionate to the legitimate aims referred to in sub-paragraphs (a) to (c) of the second paragraph of that provision, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see Kleyn and Aleksandrovich v. Russia, no. 40657/04, § 43, 3 May 2012, and Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 174, ECHR 2011 (extracts)).

114. The obligations on Contracting States take on a particular dimension where detainees are concerned since detainees are entirely under the control of the authorities. In view of their vulnerability, the authorities are under a duty to protect them. The Court has accordingly found, under Article 3 of the Convention, that, where applicable, it is incumbent on the State to give a convincing explanation for any injuries suffered in custody or during other forms of deprivation of liberty, which obligation is particularly stringent where that individual dies (see Slimani v. France, no. 57671/00, § 27, ECHR 2004‑IX (extracts)). In the absence of such explanation, the Court can draw inferences which may be unfavourable for the Government (see El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 152, ECHR 2012, and Mikheyev, cited above, § 102).

115. The Court also reiterates that Article 2 may imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual from the acts of another individual or, in certain particular circumstances, from himself or herself (see Tanribilir v. Turkey, no. 21422/93, § 70, 16 November 2000; Keenan v. the United Kingdom, no. 27229/95, § 89, ECHR 2001‑III; and Opuz v. Turkey, no. 33401/02, § 128, ECHR 2009).

However, this obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities, without losing sight of the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources. Not every claimed risk to life, therefore, can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising (see Keenan, cited above, § 90, and Taïs v. France, no. 39922/03, § 97, 1 June 2006).

116. The Court points out that Article 3 of the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000‑IV). Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 114, ECHR 2014). In respect of a person deprived of his or her liberty, recourse to physical force which has not been made strictly necessary by his or her own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 (see Ribitsch v. Austria, 4 December 1995, § 38, Series A no. 336, and Selmouni v. France [GC], no. 25803/94, § 99, ECHR 1999‑V).

117. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25). However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons under their control in custody, strong presumptions of fact will arise in respect of injuries or death occurring during that detention (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000‑VII, and Giuliani and Gaggio, cited above, § 181).

118. The Court also reiterates that when it comes to establishing the facts, it is sensitive to the subsidiary nature of its task and must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case. Where domestic proceedings have taken place, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and it is for the latter to establish the facts on the basis of the evidence before them. Though the Court is not bound by the findings of domestic courts and remains free to make its own assessment in the light of all the material before it, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by the domestic courts (see Giuliani and Gaggio, cited above, § 180; Gäfgen v. Germany [GC], no. 22978/05, § 93, ECHR 2010; and Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 182, 14 April 2015).

119. The Court must be especially vigilant in cases where violations of Articles 2 and 3 of the Convention are alleged (see, mutatis mutandis, Ribitsch, cited above, § 32). When there have been criminal proceedings in the domestic courts concerning those same allegations, it must be borne in mind that criminal-law liability is distinct from international-law responsibility under the Convention. The Court’s competence is confined to the latter. Responsibility under the Convention is based on its own provisions which are to be interpreted in the light of the object and purpose of the Convention, taking into account any relevant rules or principles of international law. The responsibility of a State under the Convention, arising for the acts of its organs, agents and servants, is not to be confused with the domestic legal issues of individual criminal responsibility under examination in the national criminal courts. The Court is not concerned with reaching any findings as to guilt or innocence in that sense (see Giuliani and Gaggio, cited above, § 182, and Avşar v. Turkey, no. 25657/94, § 284, ECHR 2001‑VII).

2. Application of these principles to the present case

(a) Article 3 of the Convention

120. Turning to the circumstances of the present case, the Court takes note of the evidence submitted by the applicant party. Relying on the assertions of eyewitness P., who accompanied Sergey Lykov and who was present at the first alleged torture session and had subsequently heard cries, the applicant has submitted a coherent and specific account of the ill-treatment to which her son was allegedly subjected (see paragraph 7 above). In addition, in support of this account, the applicant refers to the autopsy report, which details several hematoma and scratches on the trunk and lower and upper limbs which did not result from the fall from the window (see paragraph 28 above). With regard to the bruise on the right carpus and the scratch on the right forearm, the forensic doctor had noted that such marks were generally held to be signs of struggle or self-defence (ibid.). The Court further observes that neither of the parties alleges that Sergey Lykov already had these injuries when he arrived at the police station.

121. The Court reiterates that it is incumbent on the State in such circumstances to provide a plausible explanation of how the injuries found on the victim’s body were caused and to produce evidence capable of casting doubt on the veracity of the victim’s allegations, particularly if those allegations are backed up by medical reports (see Selmouni, cited above, § 87, and Mižigárová v. Slovakia, no. 74832/01, § 85, 14 December 2010)

122. The Court notes that the Government interpret the above-mentioned report by the forensic doctor as attributing all of Mr Lykov’s injuries to his fall from the fifth floor and thus as refuting the allegations of ill-treatment... However, as the Court has noted above, this report indicates that the forensic doctor found the presence of injuries which were unrelated to the fall from the window and which are generally attributed to acts of struggle or self-defence. In addition, the Court considers that it is appropriate to have regard to the explanations provided by P., who described, in a detailed and coherent manner, the violence perpetrated against Sergey Lykov and himself. The Court sees no reason to call into question the testimony by P.: his account is consistent with the nature and position of the injuries identified on Sergey Lykov’s body (see paragraphs 38 and 39 above). Moreover, as the Court has established above, from September 2009, that is, before the autopsy report was submitted, witness P. gave the relevant domestic authorities several opportunities to verify his allegations, including those concerning Sergey Lykov (see paragraphs 39, 42 and 46 above). However, on each occasion the relevant authorities ignored his complaints and proposals to provide witness statements ...

Lastly, the Court considers that the applicant’s version is all the more credible in that the authorities have never – either at the domestic level, or in the proceedings before this Court – provided an explanation for those injuries that were not sustained by Mr Lykov as a result of the fall.

123. The Court further observes that the decision to close the investigation (see paragraph 18 above) was based on statements containing obvious contradictions, especially with regard to the chronological sequence of events (see paragraphs 19, 20 and 22 above). The Court notes in this respect that the investigative authorities failed to re-establish the exact chronology of the events occurring between the arrest of P. and the applicant’s son and the latter’s throwing himself from the window, and to resolve the contradictions between the various statements.

124. In those circumstances, the Court is not convinced by the version advanced by the Government – namely, that all the injuries resulted from Mr Lykov’s suicide. The Government have not submitted sufficient information to suggest that the observed injuries which were not attributable to the fall originated in something other than the infliction of ill-treatment in the police premises on the afternoon and evening of 9 September 2009. In consequence, the Court considers it established that Sergey Lykov was subjected to treatment contrary to Article 3 of the Convention.

125. In addition, the Court has already held that there is no more important safeguard against ill-treatment than the requirement to record without delay all information relating to a person’s arrest in the relevant custody ledgers (see Timurtaş v. Turkey, no. 23531/94, § 105, ECHR 2000‑VI). It reiterates that the three relevant rights – the right of the person detained to have the fact of his detention notified to a third party of his choice, the right of access to a lawyer, and the right to request a medical examination by a doctor of his choice – must apply as from the very outset of deprivation of liberty, regardless of how it may be described under the legal system concerned (see Salduz v. Turkey [GC], no. 36391/02, § 54, ECHR 2008; Martin v. Estonia, no. 35985/09, § 79, 30 May 2013; and Zayev v. Russia, no. 36552/05, § 86, 16 April 2015). The Court concludes that these rights, the purpose of which is precisely to prevent police abuse, were not respected in Mr Lykov’s case.

126. In assessing the seriousness of the established facts, the Court takes into consideration the intensity of the acts in question, the fact that they were inflicted, were that the case, in an intentional manner by State agents acting in the exercise of their duties, as well as the circumstances in which those acts took place.

With regard to the intensity of the acts of violence, the Court notes that, according to P.’s version, on which the Court has based its findings (see paragraph 122 above), the police officers inflicted several blows on the victim by striking his head against hard surfaces – the ground, a cupboard and a table (see paragraphs 7 and 122 above). Those blows, already sufficiently painful in themselves, were accompanied by several sessions of asphyxiation (ibid.), treatment that was also liable to cause severe pain and suffering to the victims. The Court notes that an element of humiliation was added to the victim’s physical suffering, since Sergey Lykov was subjected to this treatment in a naked state, with his hands and feet bound (see paragraphs 7, 8 and 122 above).

The Court reiterates that the treatment complained of took place in the course of unrecorded detention, which could only have aggravated the victim’s state of vulnerability; held in police custody, he was deprived over a period of several hours of the procedural safeguards to which a person in that situation was normally entitled (see paragraph 125 above).

The Court further observes that the above-mentioned ill-treatment was inflicted with the intention of extracting a confession (see paragraphs 7 and 11 above).

Having regard to the foregoing, the Court is convinced that the acts of violence committed against the person of Sergey Lykov, considered as a whole, caused “severe” pain and suffering and were particularly serious and cruel. Such conduct must be regarded as acts of torture for the purposes of Article 3 of the Convention (see Lyapin v. Russia, no. 46956/09, § 115, 24 July 2014).

127. The foregoing enables the Court to conclude that the treatment to which the victim was subjected on 9 September 2009 entailed a substantive violation of Article 3 of the Convention.

(b) Article 2 of the Convention

128. The Court notes that the present case contains nothing from which it might be concluded beyond all reasonable doubt that Mr Lykov’s death was intentionally caused by the State agents. The applicant and the Government agree on the fact that the victim threw himself from the window. They disagree only on the question whether this action was sudden and unforeseeable by the police officers, so that the authorities are exonerated of all liability, or whether this act was a gesture of despair provoked by the ill-treatment. The Court considers it necessary to focus on the question of whether the authorities could be held responsible for the victim throwing himself from the window.

129. In considering persons who are detained or placed in police custody, and thus in a relationship of dependence comparable to that in which Mr Lykov found himself, the Court has accepted a positive obligation to protect the individual, including against himself. In addition, even where there is insufficient evidence to enable the Court to find that the authorities knew or ought to have known that the detained person was at risk of suicide, police officers must take certain basic precautions in order to minimise any potential risk (see Keller, cited above, § 82, and Mižigárová, cited above, § 89).

130. In the present case the Court does not find it necessary to establish whether or not the authorities who arrested Mr Lykov had information about the existence of personal circumstances liable to push him to suicide, which, were it available, ought to have encouraged them to act in such a way as to prevent a possible suicide attempt. The Court considers that the victim’s vulnerability at the precise moment when he threw himself from the window resulted, first and foremost, from the torture to which he had been subjected by the police officers. The Court has already had to assess a case in which the ill-treatment inflicted was of such intensity that it pushed the victim to throw himself from a window to escape his suffering (see Mikheyev, cited above, § 135). In the present case, the Court has established that Mr Lykov had been tortured in the presence of P. (see paragraph 127 above). In addition, it cannot be excluded that the victim was tortured afterwards, in so far as P. claims to have heard his cries throughout the following hour (see paragraph 8 above). Moreover, the Court also notes that during this period Mr Lykov confessed and threw himself from the window (see paragraphs 11 and 12 above). The Court notes that the victim entered the building alive and died on account of the fall from the fifth floor of the police station. Firstly, the Court considers that the Government’s version of suicide for personal reasons is not satisfactory. It failed to take account of the established fact that the applicant was being tortured (see paragraphs 120-127 above), or of his unrecorded detention ... Secondly, the Court cannot draw any decisive conclusion from the investigation, which it has found to be ineffective (see paragraph 109 above). Accordingly, having found that neither the Government nor the national investigation have provided a satisfactory explanation for the victim’s death, the Court considers that the Russian authorities are responsible for Sergey Lykov’s fatal fall from the window.

131. The Court reiterates that its jurisdiction is limited to ruling on the State’s responsibility under the Convention; the individual liability of the individuals involved is a matter for the domestic courts alone. In consequence, the Court considers that it is not for it to discuss in the present case the individual liability for negligence of any police officers present in view of their insufficient supervision of the victim’s conduct.

With this clarification, the Court is of the view that the Russian authorities must be held responsible, having regard to the Convention, for the death of Mr Lykov, who was tortured during a period of unrecorded detention, when he was deprived of all the rights which should normally have been afforded to persons in custody (see paragraph 125 above).

(c) Conclusions

132. The above considerations are sufficient for the Court to be able to conclude that there has been a substantive violation of Article 2 and Article 3.

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FOR THESE REASONS, THE COURT, UNANIMOUSLY,

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4. Holds that there has been a substantive violation of Article 3 of the Convention;

5. Holds that there has been a substantive violation of Article 2 of the Convention;

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Done in French, and notified in writing on 22 December 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stephen PhillipsLuis López Guerra
RegistrarPresident

 

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