CASE OF REZNIKOV v. RUSSIA

THIRD SECTION

CASE OF REZNIKOV v. RUSSIA

(Application no. 5659/10)

JUDGMENT
 

STRASBOURG

18 May 2021

This judgment is final but it may be subject to editorial revision.

In the case of Reznikov v. Russia,

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

Darian Pavli, President,
Dmitry Dedov,
Peeter Roosma, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 5659/10) 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, Mr Aleksey Valeryevich Reznikov (“the applicant”), on 30 December 2009;

the decision to give notice to the Russian Government (“the Government”) of the application;

the parties’ observations;

Having deliberated in private on 13 April 2021,

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

INTRODUCTION

1.  The present case concerns the applicant’s alleged ill-treatment in police custody and the lack of proper investigation in this connection, in breach of Article 3, and the subsequent use of the confession extracted during his ill-treatment at his criminal trial in violation of Article 6 of the Convention.

THE FACTS

circumstances of the case

2.  The applicant was born in 1985 and at the time of the events lived in Krasnodar. The applicant, who had been granted legal aid, was represented by Mr E.V. Markov, a lawyer practising in Budapest.

3.  The Government were initially represented by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.The applicant’s alleged ill-treatment and confession

5.  In the evening on 2 July 2008 the applicant was arrested by police officers E., N. and A. According to the applicant, they wore plain clothes and did not identify themselves as police officers. The applicant was pushed into a car, and the police officers tied his hands behind his back. They put a shirt on his head and then placed his head between his legs, so he could not see where he was taken to. The applicant alleged that during transportation he received numerous punches in the back of his head and on the sides of his body.

6.  At unspecified time on the same day the applicant was brought to the Tsentralnyy police station of Krasnodar, where, according to the Government’s submissions, the applicant had a conversation with the police officers. According to the applicant, at the police station the officers punched him several times on the head, kicked him in the chest, and hit him in the sides of his body and arms. Then one of the officers brought a taser and electrocuted the applicant under his right knee and then to his back, loin and fingers. The applicant alleged that throughout this time he remained handcuffed, and the officers were yelling and threatening him, forcing him to confess.

7.  Allegedly, the applicant agreed to make a confession in relation to a criminal offence (causing bodily injuries resulting in the victim’s death) in order to terminate the beatings. The applicant also claimed that he was then taken to the crime scene and was told the details of the relevant events. It appears that after that the applicant was taken back to the police station. Allegedly, he had to sleep being seated in a chair to which he remained handcuffed during the night.

8.  On 3 July 2008 a peace justice sentenced the applicant to ten days of administrative detention for resisting the arrest.

9.  On the same day between 1 p.m. and 3 p.m. the applicant was interrogated by an investigator in the presence of a State-appointed lawyer. During this interview, at 2 p.m. the applicant signed a confession statement (явка с повинной). On the same day the applicant and his State-appointed lawyer were brought to the crime scene for reconstruction of the events, where the applicant confirmed his testimony.

10.  On 4 July 2008 the applicant was examined by a forensic medical expert. The medical record of this examination compiled on 8 July 2008 indicated that the applicant had bruises on his head and neck, and bruises and abrasions on his body, which may have occurred between three and five days prior to the examination. The expert also recorded bruises and abrasions on the applicant’s arms and hands, knees and ankle, resulting from an impact with a blunt object, as well as burn marks on his shoulders. According to the forensic expert, these injuries originated between one or two days prior to the examination. The applicant told the expert that he had not been ill-treated and that he “had fallen off his motorcycle five days earlier”. The medical record indicated that the applicant’s examination was carried out in the presence of the officer. According to the applicant, this officer participated in the beatings.Official inquiry into the alleged ill-treatment

11.  On 7 July 2008 the applicant refused the services of a State‑appointed lawyer and requested her to be replaced with a lawyer of his choosing. His request was granted on 8 July 2008.

12.  On 11 July 2008 the applicant lodged a complaint with the Krasnodar Investigations Department, alleging that he had been subjected to ill-treatment. By a decision of 14 July 2008 a Department’s investigator refused to institute criminal proceedings against the police officers. The refusal was essentially based on the statements of the police officers, denying the allegations of ill-treatment. The applicant himself was not interviewed.

13.  On 16 July 2008 the applicant’s mother lodged a complaint with the Tsentralnyy district prosecutor. On 25 August 2008 the decision of 14 July 2008 was quashed on the ground that the investigator had failed to mention the results of the forensic medical examination. On the same day, a new refusal to open a criminal case was issued, stating that according to the medical record some of the documented injuries had occurred earlier than the time of the alleged ill-treatment. It also stated that the medical record did not reliably prove that injuries had been inflicted by the police officers, since the applicant himself denied this, and claimed that he had fallen off a motorcycle a few days prior to his arrest. The decision also noted that he could have inflicted the injuries himself.

14.  On 8 October 2008 the Pervomayskiy District Court of Krasnodar declared the refusal unlawful due to the investigator’s failure to interview the applicant in respect of his complaint.

15.  On 3 November 2008 a new refusal was issued. It was annulled on 20 November 2008 by the supervising officer. During this round of proceedings the investigator for the first time interviewed the applicant about the events.

16.  Between May and July 2009 the investigators issued at least two decisions refusing to institute criminal proceedings due to the lack of evidence. All of these decisions were annulled by a supervising officer.

17.  Following another resumption of the inquiry, on 7 May 2010 an investigator issued another refusal to institute criminal proceedings. The refusal was based on the statements of police officers, and the statements of the medical expert, claiming that during the examination the police officer, who was present there, did not put any pressure on the applicant, and reaffirming that his injuries could have possibly resulted from a motorcycle incident, as the applicant submitted, or even could have been self-inflicted. During this additional investigation, the authorities also obtained statements from the applicant’s colleagues, stating that he often had bruises and cuts on his face and hands, and that he might had been burned at work, since he had systematically worked without protective uniform (at the time the applicant worked as a cook in a restaurant). The refusal also contained a statement from a paramedic, who worked in the administrative detention facility (специальный приемник), where applicant had been taken on 3 July 2008 after his arrest. The paramedic stated that at the time applicant had had no complaints regarding his health or alleged ill treatment.

18.  On 2 September 2015 the supervising officer annulled the refusal of 22 July 2009 and ordered to conduct an additional inquiry.The applicant’s trial and conviction

19.  By the judgment of 4 May 2009, the District Court convicted the applicant of causing bodily injuries resulting in the victim’s death and sentenced him to nine years’ imprisonment. In its judgment the domestic court relied, among other things, on the applicant’s confession made after the arrest and the interview record with the investigator of 3 July 2008. The court stated that the applicant’s allegations regarding his ill-treatment were refuted by the testimonies of an investigator and three arresting officers, who affirmed that no ill-treatment had been inflicted on the applicant.

20.  On 15 July 2009 the Krasnodar Regional Court upheld the judgment on appeal. It stated that the applicant had been informed of his right to remain silent, and that he had then been interviewed by an investigator in the presence of a lawyer and did not make any allegations of ill-treatment.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

21.  For the relevant provisions of domestic law on the prohibition of torture and other ill-treatment and the procedure for examining a criminal complaint (see Lyapin v. Russia, no. 46956/09, §§ 96-102, 24 July 2014, and Ryabtsev v. Russia, no. 13642/06, §§ 48-52, 14 November 2013).

THE LAWALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

22.  The applicant complained that he had been subjected to ill‑treatment by State officials and that the authorities had failed to conduct an effective domestic investigation in this connection. He relied on Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”Admissibility

23.  The Court notes that these complaints are neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.MeritsSubmissions by the parties

24.  The Government submitted that the applicant’s arrest record did not indicate any visible injuries. They further indicated that on 3 July 2008 the applicant voluntarily submitted a coherent and reliable confession, in the presence of a lawyer and after having been informed of his rights. Neither applicant nor his lawyer formulated any claims or complaints regarding infliction of physical or psychological duress prior to the confession. The Government contended that the applicant’s forensic medical examination had recorded several injuries, the origin of which was later duly investigated and rejected. The Government also noted that the presence of a police officer during the medical examination did not have an adverse impact on the outcome of examination.

25.  The applicant maintained his complaints and pointed out that, as the Government submitted in their observations, according to the arrest record he had no injuries at the time of his arrest. The applicant further noted that his injuries had been confirmed by a proper medical examination, even though due to the presence of the police officer he was not able to mention all of them, such as burn marks he had under his knees and on the other parts of his body. For the same reason, he had to tell the expert that he had fallen off his motorcycle, even though he had never owned one. The applicant also noted that even though he had been appointed with a lawyer, she did not request a private conversation with him prior to the interrogation with investigator and remained silent throughout it. She also did not explain the applicant his rights and left immediately after signing the interview record. The applicant claimed that both the lawyer and the investigator could have clearly noticed the signs of beatings and the emotional condition of the applicant, but nevertheless none of them asked him any questions in this regard.The Court’s assessment

(a)   General principles

26.  The relevant general principles have been summarised by the Court in Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-90 and §§ 114-23, ECHR 2015), and Lyapin v. Russia (no. 46956/09, §§ 109-15, 24 July 2014).

(b)   Application of the above principles

27.  The Court first notes that according to the applicant’s forensic medical examination carried out on 4 July 2008, which took place one day after his arrest, he had numerous injuries including bruises and abrasions on his arms and hands, knees and ankle, resulting from an impact of a blunt object, as well as burn marks on his shoulders. According to the expert, these injuries were inflicted on the applicant one or two days prior to the examination (see paragraph 10 above).

28.  The Court thus considers that the applicant’s injuries were well‑documented a day after his arrival to the police station (see paragraph 10 above) and that he could have arguably sustained them at the hands of the police officers, as he complains. The above factors are sufficient to give rise to a presumption in favor of the applicant’s account of events and to enable the Court to consider his allegations of ill‑treatment in police custody as credible.

29.  The Court must now examine whether the investigation into the credible allegations of ill-treatment was in compliance with the requirements of Article 3 of the Convention.

30.  The Court reiterates its finding that the mere pre‑investigation inquiry under Article 144 of the Code of Criminal Procedure of the Russian Federation is insufficient to comply with Article 3 of the Convention because it does not allow the authorities to conduct a proper criminal investigation in which a full range of investigative measures are carried out (see Lyapin, cited above, § 129). In the present case, the authorities had never instituted criminal proceedings in respect of the applicant’s grievances.

31.  The Court notes that although launched immediately, only three days later the first inquiry resulted in the decision to dismiss the applicant’s complaint as unfounded without any reference to the medical evidence collected (see paragraph 12 above). This refusal to institute criminal proceedings was soon quashed, but the inquiry was again discontinued on the same day, which shows that no genuine attempt was made to rectify the previous shortcomings (see paragraph 13 above). The applicant himself was interviewed with regard to his complaint more than four months after the incident (see paragraph 15 above). The most recent refusal to initiate criminal proceedings of 7 May 2010 was mainly based on the statements of police officers denying the applicants’ ill‑treatment, and the statements of the medical expert, who gave the expert report of 8 July 2008 (see paragraph 17 above). The Court notes that this refusal included for the first time in two years, the testimony of the witnesses who were not police officers. The Court observes that the above-mentioned shortcomings reveal a formalistic approach of the authorities to the inquiry and raise uncertainty in whether the domestic authorities made a meaningful attempt to bring those responsible for the ill-treatment to account.

32.  The Court finds questionable the authorities’ statements that the applicant had injured himself before his arrest, especially in the absence of any reports describing the circumstances of his arrest and a medical examination carried out once he had been brought to the police station (see Korobov v. Ukraine, no. 39598/03, § 70, 21 July 2011, and Chernetskiy v. Russia, no. 18339/04, §§ 69-70, 16 October 2014). Such a medical examination would have constituted evidence showing whether the injuries were caused before the applicant had been taken to the police station and would have assisted the courts in examining the veracity of his ill-treatment allegations (see Khani Kabbara v. Cyprus, no. 24459/12, § 156, 5 June 2018).

33.  The absence of these initial documents could have been to a certain extent compensated by a proper forensic medical examination. The Court, however, observes that the circumstances in which it was carried out cast serious doubts on the reliability of its conclusions. It first notes that the examination of the applicant by a forensic expert was carried out in the presence of a police officer, who had allegedly participated in the ill-treatment of the applicant (see paragraph 10 above). The Court further notes that even though a forensic medical examination was rapidly ordered by the investigative authorities, no thorough evaluation with respect to the quantity and nature of the applicant’s injuries took place. In her report of 8 July 2008 the expert did not assess the credibility of the applicant’s explanation of the origin of the injuries (see paragraph 10 above). A conclusion indicating the degree of support to the alleged nature of the injuries should have been based on a discussion of possible different diagnoses. That was not done in the present case, apparently due to rather general questions having been put to the expert. Taking into account the absence of an immediate medical examination after the applicant’s arrest, the Court finds it regrettable that the scope of the forensic medical examination was too general, was not able to explicitly exclude the possibility of the applicant being ill-treated in police custody.

34.  The Court, therefore, finds that the investigating authorities’ failure to conduct proper medical examination upon arrival of the applicant to the police station, the general and vague nature of the questions put to the forensic expert, as well as their failure to search for corroborating evidence in a timely manner must be considered to be a particularly serious shortcoming in the investigation. It thus concludes that the reaction of the authorities to the alleged violation was perfunctory, and, accordingly, finds that the State has failed to carry out an effective investigation into the applicant’s allegations of police violence.

35.  Lastly, the Court notes that the applicant’s allegation of having been subjected to ill-treatment by electric current (see paragraph 6 above) is not supported by the medical record (see paragraph 10 above). In view of the materials submitted by the parties, the Court concludes that the ill-treatment must be classified as “inhuman and degrading treatment”.

36.  Accordingly, there has been a violation of the substantive and procedural aspects of Article 3 of the Convention.ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

37.  The applicant complained that in convicting him the domestic courts used a confession obtained as a result of ill-treatment. The Court will examine his complaint under Article 6 § 1, which, in so far as relevant, provides:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”Admissibility

38.  The Court notes that this part of the application 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.Merits Submissions by the parties

39.  The Government submitted that the applicant’s confession was not the sole evidence on which his conviction was based. They argued that his guilt had been sufficiently proven by other evidence in the case.

40.  The applicant maintained his complaintThe Court’s assessment

41.  The Court reiterates that the admission of confession statements obtained as a result of torture or ill-treatment in breach of Article 3 of the Convention as evidence to establish the relevant facts in criminal proceedings renders the proceedings, as a whole, unfair. Insofar as the Government argued that the applicant’s confession was not the sole evidence in the case, the Court recalls that the above applies irrespective of the probative value of the statements and irrespective of whether their use was decisive in securing the defendant’s conviction (see Gäfgen v. Germany [GC], no. 22978/05, § 166, ECHR 2010).

42.  The Court has already found in the paragraph 36 above that the applicant’s confession was obtained as a result of inhuman and degrading treatment to which he was subjected in police custody. This enables the Court to conclude that the domestic courts’ use of the applicant’s confession has rendered the applicant’s trial unfair.

43.  There has therefore been a violation of Article 6 § 1 of the Convention in the present case.APPLICATION OF ARTICLE 41 OF THE CONVENTION

44.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage

45.  The applicant claimed 30,000 euros (EUR) in respect of non‑pecuniary damage.

46.  The Government invited the Court to make its award in accordance with its case-law.

47.  The Court considers that the applicant must have suffered anguish and distress as result of the violations found. In those circumstances, the Court finds it reasonable to award the applicant EUR 26,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.Costs and expenses

48.  The applicant claimed EUR 2,690 for legal services and additional EUR 500 for postal expenses.

49.  The Government did not contest the claim.

50.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.

51.  In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the applicant’s claim regarding postal expenses as unsubstantiated. The Court grants the applicant’s claim of EUR 2,690 for legal costs incurred in the proceedings before it. Taking into account that the applicant was granted legal aid, the Court deduces EUR 850 from that sum and awards the applicant EUR 1,840 plus any tax that may be chargeable to him on that amount.Default interest

52.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,Declares the application admissible;Holds that there has been a violation of the substantive and procedural aspects of Article 3 of the Convention;Holds that there has been a violation of Article 6 § 1 of the Convention;Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 26,000 (twenty-six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 1,840 (one thousand eight hundred and forty euros), plus any tax that may be chargeable to him, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 18 May 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova Darian Pavli
Deputy RegistrarPresident

 

Full & Egal Universal Law Academy