Communicated on 23 November 2015
THIRD SECTION
Application no 31469/08
Danil Aleksandrovich DANILEVICH
against Russia
lodged on 23 April 2008
STATEMENT OF FACTS
1. The applicant, Mr Danil Aleksandrovich Danilevich, is a Russian national, who was born in 1982 and is serving a life sentence in the Vologda Region.
2. He was convicted of several crimes while a member of an organised criminal group that operated in Tatarstan and other Russian regions from the 1990s to the early 2000s. The final judgment was given by the Supreme Court of Russia on 19 March 2009.
3. The facts of the case, as submitted by the applicant, may be summarised as follows.
A. The applicant’s first arrest and alleged ill-treatment
1. The applicant’s first arrest and alleged ill-treatment
4. On 28 May 2002 at around 3 p.m. the applicant was driving a car and noticed that he was being followed by a police car with its emergency vehicle lights on. He drove into a courtyard, left the car and ran into one of the surrounding buildings. Two police officers followed him. The applicant was then apprehended and taken to the Avtozavodskoy district police station of Naberezhnyye Chelny (Автозаводской ОВД г. Набережные Челны).
5. At the police station police officer N. and another officer allegedly applied physical force to, and put psychological pressure on, the applicant in order to compel him to confess to several crimes. According to the applicant, the police officers punched him and hit him with a rubber stick; inserted metallic rods between his fingers and then squeezed his hands; put a chair on his hand and pushed it towards the floor; beat his legs with a wooden stick; grasped his nose and closed his respiratory tract with their hands; pressed on his eye pits with their fingers; inserted metallic rods in his ears; put a black, knitted hat on his head and beat his head against the wall; and choked him.
6. The applicant submits that he was deprived of his liberty from 3 p.m. on 28 May 2002 until 9 p.m. on 29 May 2002, and was placed in a cell at the police station overnight without any record of this being taken. It appears that the applicant did not provide any self-incriminating statements and was then released.
2. The applicant’s injuries
7. On 30 May 2002 the forensic medical examination bureau of Naberezhnyye Chelny examined the applicant at his own request. The applicant provided a detailed description of his alleged ill-treatment by police officers; he complained of pain in various parts of his body, of feeling nauseous and of vomiting.
8. According to medical report no. 781, issued on 30 May 2002, the doctor recorded in detail the applicant’s injuries, bruises and abrasions noting, inter alia, pain in the applicant’s occipital region and between his fingers, multiple bruises and abrasions on the applicant’s face, ears, chest, stomach, arms, hands and legs, between his fingers and on his soles. He was recommended to see a neurologist.
9. According to the applicant, on 31 May 2002 he visited a doctor of the emergency hospital of Naberezhnyye Chelny and complained of headaches, feeling nauseous, earache and partial loss of hearing. The doctor recommended the applicant see a neurologist. The applicant submits that he was examined by a neurologist at hospital no. 8, who diagnosed him with concussion. The applicant refers to medical documents, dated 31 May 2002, which indicate that the applicant was diagnosed with vegetative-vascular dystonia. Concussion was noted as a possibility with a question mark.
10. According to forensic medical examination report no. 1159 dated 4 April 2003, the applicant’s physical injuries, bruises and abrasions, as recorded on 30 May 2002, were a result of traumatic impact by hard, blunt objects one to three days before the medical examination – possibly on the dates indicated by the investigator – which did not result in “damage to the health” of the applicant. The report further indicated that it was impossible to conclude whether the applicant had also had concussion because the symptoms developed only two to three weeks after the injuries occured. There is no copy of the relevant report in the case files.
3. Pre-investigation inquiry into the applicant’s allegations of police ill‑treatment and unlawful deprivation of liberty
11. On 3 June 2002 the applicant lodged a complaint against the police officers with the prosecutor’s office of Naberezhnyye Chelny.
12. The police officers denied ill-treating the applicant. They alleged that he had been apprehended and interviewed in connection with his possible involvement in criminal activity after his attempt to flee in response to police demands to pull over.
13. On 28 June 2002 the prosecutor’s office refused to institute criminal proceedings against the police officers as there was no evidence of a crime under Article 286 of the Criminal Code (abuse of powers) in their actions.
14. The applicant appealed against the refusal to institute criminal proceedings to the Naberezhnyye Chelny Town Court pursuant to Article 125 of the Code of Criminal Procedure (“the CCrP”).
15. On 15 July 2002 the court quashed the refusal to institute criminal proceedings against the police officers as being unlawful, noting that the applicant’s arguments concerning his ill-treatment and unlawful deprivation of liberty had not been properly addressed.
4. Criminal proceedings against the police officers
16. On an unspecified date the investigative authorities instituted criminal proceedings against the police officers for allegedly ill-treating the applicant.
17. On 4 September 2002 the prosecutor’s office of Naberezhnyye Chelny assigned victim status to the applicant in a criminal case against the police officers.
18. The applicant maintained his complaints of unlawful deprivation of liberty and ill-treatment against the police officers of the Avtozavodskoy district police station of Naberezhnyye Chelny who had forced him to confess to crimes. During the verification of his statements, he pointed out a cell where he had been allegedly detained overnight from 28 May to 29 May 2002 respectively.
19. In her submissions to the investigative authorities, the applicant’s partner M. submitted that the applicant had left home between 9 and 10 a.m. on 28 May 2002. She had not noted any physical marks or injuries on the applicant at that time. He had not returned home that night. The next day she had gone to the police station and had seen the applicant in the corner of a room; he had had a bruised and swollen nose and ears and black eyes. The applicant’s aunt Z. provided similar statements.
20. Z. and M. further provided a detailed account of the applicant’s state of health before his arrest, during his time at the police station and after his release in their submissions to the Court, dated 10 and 12 November 2009.
21. A witness, B.R., submitted evidence to the investigative authorities that on 28 May 2002 the applicant had been placed in a cell at the police station with him. The applicant had told B.R. about his alleged ill-treatment by the police officers; B.R. had not seen any marks on the applicant’s face indicating that he had been beaten. The next day B.R. had seen the applicant in one of the rooms at the police station. He had had a black knitted hat on his head. According to B.R., police officers N. and Sh. had beaten the applicant up. He alleged he had seen at least thirty blows by each police officer. They had forced the applicant to confess to a crime. B.R. had met M. and Z. in the corridor and recommended they call a lawyer, stating that otherwise the applicant would be beaten to death.
22. The applicant also provided to the Court with a copy of B.R.’s statement (“explanation”) to the applicant’s lawyer taken on 13 June 2003. It is generally consistent with the statements given by B.R. to the investigative authorities.
23. Police officers N. and Sh. admitted that B.R. had been in the same room as the applicant for five minutes on 29 May 2002. They, nevertheless, denied ill-treating the applicant, stating that no physical or psychological pressure had been imposed on him. According to N., B.R. had provided false statements about the applicant’s alleged ill-treatment and confinement to a cell after threats from members of the organised criminal group in which the applicant had been involved.
24. The police officers further denied placing the applicant in a cell overnight. They allegedly released the applicant at around 6 p.m. on 28 May 2002. The next day at around 11 a.m. the applicant came to the police station himself and requested the return of his car, which he had been driving before his arrest. Sh. had said in his initial statement, however, that the applicant had been apprehended on 28 May and released on 29 May 2002 (see refusal to institute criminal proceedings of 28 June 2002, mentioned in paragraph 13 above).
25. On the dates specified below the prosecutor’s office issued six consecutive decisions to terminate the criminal proceedings against the police officers under Article 24 § 1 (2) of the CCrP. With the exception of the last decision of 6 May 2008, these decisions were systematically revoked by the Naberezhnyye Chelny Town Court or by the prosecutor’s office of Tatarstan after an appeal by the applicant. The decisions were revoked for being unlawful and the investigative authorities were ordered to undertake additional investigative measures:
(i) decision of 28 October 2002; revoked on 2 December 2002 by the Naberezhnyye Chelny Town Court;
(ii) decision of 14 April 2002; revoked on 8 May 2003 by the prosecutor’s office of Tatarstan;
(iii) decision of 2 July 2003; revoked on 26 August 2003 by the prosecutor’s office of Tatarstan;
(iv) decision of 5 October 2003; revoked on 12 October 2005 by the Naberezhnyye Chelny Town Court;
(v) decision of 16 July 2006; revoked on 3 April 2008 by the prosecutor’s office of Tatarstan;
(vi) decision of 6 May 2008; forwarded for revocation on 16 October 2008 by the prosecutor’s office of Tatarstan.
26. In its last decision to terminate the criminal proceedings against the police officers of 6 May 2008 the investigator noted that: (i) the applicant’s allegations of ill-treatment by the police officers had not been confirmed by the evidence; (ii) the circumstances under which the applicant had got his physical injuries could not be established; (iii) there were no reasons to assume that his physical injuries had been inflicted by the police officers; and (iv) the applicant’s injuries could have possibly been inflicted after he was released from police custody.
27. As to the applicant’s allegations of unlawful deprivation of liberty, the investigator noted: (i) the applicant’s attempt to flee from the police shortly before his apprehension; and (ii) the existence of clear evidence to suspect the applicant had committed a crime, leading to a finding of an absence of evidence of a crime (under Article 301 § 1 of the Criminal Code (unlawful deprivation of liberty)) in the actions of the police officers.
28. The applicant challenged the investigator’s decision of 6 May 2008 before the Naberezhnyye Chelny Town Court pursuant to Article 125 of the CCrP.
29. On 24 October 2008 the court rejected the applicant’s appeal against the decision of 6 May 2008, noting that the decision was lawful and duly reasoned.
30. On 25 November 2008 the Supreme Court of Tatarstan upheld this decision on appeal.
B. The applicant’s second arrest and alleged threats
1. The applicant’s second arrest and alleged threats
31. On 27 September 2003 the applicant was apprehended by the police.
32. According to the applicant, from the moment of his arrest on 27 September 2003, police officers, investigating officers and the co‑accused in his criminal case had systematically exerted psychological pressure on him and had threatened the use of physical violence and murder. As a result, he had been compelled to confess to crimes which he claims he had not committed.
33. In particular, in December 2003 police officer N. allegedly visited the applicant in hospital, where the applicant had been undergoing treatment in connection with the gunshot injury received during his apprehension by N. on 27 September 2003. The applicant submits that during their thirty minute conversation at the hospital N. threatened him with physical violence (torture) if he refused to do what was asked and sign all the papers required by the investigation authorities.
34. Then police officer N. allegedly told the applicant how he had tortured D. and S. (the co-accused in the applicant’s criminal case): he had twisted their hands and given them electric shocks. N. added that if the applicant did not do what he demanded, he would kill him and report that the incident had happened because the applicant had tried to flee. N. allegedly said that he regretted that he had not killed the applicant on 27 September 2003 when apprehending him. When the applicant refused to incriminate himself, N. told him that he would “put as many unsolved criminal cases (висяки) on him, as necessary”.
35. A few days later the applicant was sent to pre-trial detention facility IZ 16/3 in Bugulmy, where he allegedly started receiving written notes from D. and B., the co-accused in his criminal case. These contained threats and requests to sign all the papers that would be demanded by the investigation authorities and do everything they said; otherwise they would “make his relatives handicapped”.
36. Then the applicant was taken to a temporary detention facility in Naberezhnye Chelny, where the head of the investigation team, U., allegedly asked him to sign a backdated statement of surrender and confession to crimes which the applicant had not committed.
37. The applicant’s record of surrender and confession indicates that it was drawn up by investigator U. at 9.30 a.m. on 3 October 2003 and signed by the applicant without his lawyer present. This record does not indicate that the applicant was informed of his rights under Article 51 of the Constitution (the privilege against self-incrimination).
38. The applicant’s arrest record indicates that it was issued by the head of the investigation unit, M., at 10.28 a.m. on 3 October 2003 on suspicion of his involvement in an organised criminal group.
39. At 11.43 a.m. on 3 October 2003 the applicant was questioned as an accused for the first time by M. in the presence of a lawyer, Sh. The applicant refused to make a statement, referring to Article 51 of the Constitution.
2. Refusals to open a criminal case
40. In July 2005 the applicant lodged a complaint with the General Prosecutor’s Office concerning the alleged psychological pressure and threats from police officers, investigating officers and his co-accused, D. and B. His complaint was transferred to the prosecutor’s office of Tatarstan.
41. On 11 August 2005 the deputy prosecutor of Tatarstan refused to open criminal proceedings against the police and the investigating officers.
42. On 29 December 2005 the prosecutor of Tatarstan overruled this refusal and ordered an additional inquiry.
43. On 16 January 2006 the deputy prosecutor of Tatarstan issued a new refusal to open a criminal case against police officer N. and investigating officers U., S., and Z. pursuant to Article 24 § 1 (2) of the CCrP, due to the absence of the constituent elements of a crime.
44. Police officer N. confirmed that in December 2003 he had visited the applicant in hospital and had had a thirty-minute talk with him concerning the applicant’s involvement in crimes. N. denied exerting any physical or psychological pressure on the applicant.
45. D. submitted that he had exerted pressure on the applicant at the request of investigating officers U., S. and Z. to force him to give the statements that “the investigation authorities wanted” concerning the crimes. He regretted this fact and asked for these statements to be excluded from the evidence in their criminal case.
46. B. denied threatening and exerting any pressure on the applicant, alleging that he had had no chance to see the applicant as he had been separately detained in a pre-trial detention facility in Bugulmy.
47. The deputy prosecutor concluded that the threats and psychological pressure alleged by the applicant had not been confirmed.
C. Criminal proceedings against the applicant
48. On 27 August 2007 the Supreme Court of Russia convicted the applicant of organised banditry, illegal possession of firearms, kidnapping, murder and other crimes and sentenced him to life imprisonment.
49. On 19 March 2009 the Supreme Court upheld this judgment on appeal.
50. The applicant raised the issues of unlawful investigation methods and the extraction of his confession under threats during his trial. However, the courts did not examine these issues.
D. Conditions of the applicant’s detention
51. Between 14 November 2008 and 15 April 2009 the applicant was detained in detention facility IZ 77/2 in Moscow pending appeal.
52. According to the applicant, his personal belongings had been seized by the prison administration; he had been detained in cells intended for persons sentenced to life imprisonment even though his appeal was pending; and he had been given the special uniform of prisoners serving life sentences and treated accordingly. The applicant further submitted that during walks in the prison courtyard, his hands had been “repeatedly” shackled behind his back and he had been given no gloves in winter.
E. Civil proceedings concerning the applicant’s alleged right to telephone conversations with his close family members
53. The applicant is serving life imprisonment in correctional colony no. 5 of the Vologda Region (ФКУ ИК-5 УФСИН России по Вологодской области).
54. On 11 January 2011 the applicant complained to the Belozerskiy District Court of the Vologda Region concerning the refusal of the prison administration to allow telephone conversations with his close relatives, including his underage child, referring to Article 8 of the Convention.
55. He alleged, in particular, that his close relatives lived far from the prison (1,000 km away) and owing to financial problems they were not able to visit him there. The applicant provided, inter alia, a copy of his son’s birth certificate (born 18 December 2002) and his aunt Z.’s submissions in support of his application before the Court.
56. It appears from Z’s submissions that she was the applicant’s guardian (опекун) until he reached eighteen years of age, as the applicant had lost his father when he was a child and his mother had abandoned him. It appears that Z. has close ties with the applicant and treats him as her son. She also submitted that the applicant’s underage son had sought contact with him.
57. Referring to Article 6 of the Convention, on 26 January 2011 the applicant requested that the Belozerskiy District Court of the Vologda Region ensure his personal participation in the hearing of his civil case.
58. On 28 January 2011 the court dismissed his complaint, noting that the applicant was serving a life sentence under strict conditions under which telephone conversations were allowed only in exceptional circumstances. The court considered that the remoteness of the prison from the applicant’s close family members, and their poor financial conditions could not be deemed exceptional circumstances.
59. The first-instance court did not address the applicant’s request to ensure his personal participation in the hearing, dated 26 January 2011.
60. On 13 April 2011 the Vologda Regional Court upheld the judgment on appeal. As to the applicant’s complaint about the first-instance court’s failure to ensure his personal participation in the hearing of his civil case, the appeal court found no breach of Russian civil procedural law, noting that the applicant had been serving time in prison, had been notified about the hearing of his civil case and had been able to present his position through his representative. The appeal court did not address the issue of whether, considering the nature of the complaint, the applicant’s personal participation had been necessary.
COMPLAINTS
The applicant complains, under Article 3 of the Convention, that he was subjected to physical and psychological ill-treatment by police officers, investigating officers and the co-accused.
He further complains, under Article 13 of the Convention in conjunction with Article 3, that the State failed to conduct an effective investigation into those incidents, and that he had no effective domestic remedy.
The applicant further complains about the allegedly inhuman conditions of his detention between 14 November 2008 and 15 April 2009 and the absence of an effective domestic remedy.
The applicant further complains, under Article 5 of the Convention, that he was unlawfully deprived of his liberty when being held, without any record being taken, at the police station from 28 to 29 May 2002.
He further complains, under Article 6 of the Convention, that the criminal proceedings against him were unfair on account of the use of evidence obtained as a result of psychological ill-treatment and without a lawyer present.
The applicant further complains under Article 6 of the Convention of the court’s failure to examine his request to personally participate in the hearing of his civil case, which rendered those proceedings unfair.
Lastly, he complains under Article 8 of the Convention of the prison administration’s refusal to allow him telephone calls to close relatives, in breach of his right to respect for his private and family life.
QUESTIONS
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 3 p.m. on 28 May 2002 and 9 p.m. on 29 May 2002 fall within paragraph (c) of this provision?
2. Having regard to:
(a) the applicant’s interviews by police officers about his alleged involvement in crimes;
(b) the injuries found on the applicant, as recorded in the relevant medical documents; and
(c) the alleged psychological pressure and threats from police officers, investigating officers and the co-accused in his criminal case;
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, §§ 122-23, 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; and Velikanov v. Russia, no. 4124/08, § 51, 30 January 2014)?
3. What were the investigating authorities’ explanations in their latest decisions on the applicant’s complaints as to how the applicant’s injuries were caused? Have the authorities discharged their burden of proof by providing a plausible or satisfactory and convincing explanation (see Selmouni, cited above, § 87, and Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000‑VII)?
4. Having regard to:
(a) the prosecutor’s refusals to open a criminal case and carry out an investigation into the applicant’s alleged ill-treatment, and revocation of these refusals by the prosecutor’s superiors or by the court;
(b) the prosecutor’s numerous decisions to terminate the criminal proceedings against the police officers, and revocation of these decisions by the investigating committee’s superiors or by the courts;
Was the investigation by the domestic authorities in the present case in breach of Article 3 of the Convention?
5. 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?
6. Having regard to the use of the applicant’s self-incriminating statements, which were allegedly obtained without his lawyer present, under psychological pressure and threats from police officers, investigating officers and the co-accused in his criminal case, did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention, and was he able to defend himself, as required by Article 6 § 3 (c) of the Convention? Did the applicant request during his trial that such evidence be declared inadmissible? If so, what were the grounds for such requests and how was it decided by the domestic courts (please submit the relevant extracts of the court records and/or any other relevant documents)?
7. The Government are invited to submit documents containing the following information in respect of the applicant’s alleged ill-treatment in police custody:
(a) the time of his arrivals and the periods spent 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, accident & emergency unit, 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 police officers in any form, for example a “voluntary surrender and confession” (явка с повинной), an explanation, etc., if applicable;
(d) the time when the applicant was officially a suspect in the criminal proceedings, informed of his rights as a suspect, his family or other third parties were informed about his detention, and he had access to a lawyer;
(e) the forensic medical experts’ conclusions about the applicant’s injuries (including report no. 1159 dated 4 April 2003), investigators’ decisions ordering the applicant’s forensic medical examinations in respect of each forensic medical expert’s report, and explanations by the applicant and the police officers as to the origins of the injuries, on the basis of which the experts’ opinions were sought;
(f) summary of the information from the above list (sub-paragraphs (a) to (e)) in respect of the applicant.
8. As regards the investigation into the applicant’s alleged ill-treatment, the Government are invited to submit:
(a) the numbered list of all decisions by investigating authorities in chronological order (name of the relevant authority, date, the grounds for the refusal to open a criminal case or the termination of the criminal proceedings against the police and/or investigating officers, and – in relation to each decision – the relevant decision to revoke it or set it aside (with the name of the relevant authority, date, and the reason for the revocation or setting aside);
(b) the numbered list of all court decisions on the applicant’s appeals against the investigators’ decisions, in chronological order (court, date and outcome);
(c) copies of the above decisions by the investigating authorities and the courts in the same order;
(d) a copy of the decision to open a criminal case against the police officers;
(e) explanations by police officer N., the applicant’s co-accused, D. and B., and investigating officers concerning the applicant’s complaint of psychological ill-treatment;
(f) copies of the records documenting police officer N. visiting the applicant in hospital. The Government are further invited to comment whether his visiting the applicant in hospital in December 2003 was lawful.
9. Were the conditions of the applicant’s detention between 14 November 2008 and 15 April 2009 in detention facility IZ 77/2 in Moscow compatible with Article 3 of the Convention? The Government are requested to comment on all aspects of the conditions of detention which the applicant complained of (see paragraphs 51-52 of the Statement of Facts). In particular, was the shackling of the applicant’s hands behind his back during walks in the prison courtyard, without gloves in winter, compatible with Article 3 of the Convention (compare Kashavelov v. Bulgaria, no. 891/05, §§ 39 and 40, 20 January 2011, and Kaverzin v Ukraine, no. 23893/03, §§ 151-163, 15 May 2012)? How often was the applicant handcuffed during these walks and what was the length of these walks?
10. Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 3 concerning the conditions of his detention, as required by Article 13 of the Convention? The Government are requested to submit relevant court practice on these issues.
11. As to the applicant’s complaints concerning his civil case where he challenged the refusal of the prison administration to provide access to a telephone for conversations with his close family members,
(a) Was Article 6 § 1 of the Convention under its civil head applicable to the proceedings in the present case?
(b) Did the applicant have a fair hearing in the determination of his civil rights, in accordance with Article 6 § 1 of the Convention, considering the court’s failure to examine his request for personal participation in the hearing?
12. The Government are further invited to comment on the following:
(a) Has there been an interference with the applicant’s right to respect for his private and family life, within the meaning of Article 8 § 1 of the Convention, considering the prison administration’s refusal to allow him to telephone his close family members, including his underage child?
(b) If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2 of the Convention?
(c) Has there been a violation of the applicant’s right to respect for his private and family life, contrary to Article 8 of the Convention?
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