Communicated on 13 March 2017
THIRD SECTION
Application no 42900/14
Denis Nikolayevich DRUZHKOV against Russia
and 9 other applications
(see list appended)
STATEMENT OF FACTS
A. The circumstances of the cases
The applicants are all Russian nationals living in various regions of the Russian Federation. The facts of the cases, as submitted by the applicants, may be summarised as follows.
Between 2006 and 2015 the applicants were arrested by different law‑enforcement authorities, and, except in Mr Verbitskiy’s case (application no. 31915/14), prosecuted for and subsequently convicted of different types of criminal offences. For example six applicants were convicted of drug related offences.
The police officers used physical force and/or special means (handcuffs, rubber truncheons) during the applicants’ arrest. According to the applicants the use of force was excessive because they did not resist the arrest. All applicants submitted medical certificates drawn up shortly after their respective arrests and demonstrating the existence of bodily injuries of different types and severity.
Mr Nakagutov (application no. 42417/13), Mr Vasilyev (application no. 42438/15), Mr Verbitskiy (application no. 31915/14) and Mr Sokolov (application no. 45235/16) alleged in addition that they had also been beaten up while in police custody.
The applicants unsuccessfully complained about the excessive use of force to the domestic authorities. In all cases, except two, the prosecutors or investigators refused to institute criminal proceedings and their refusals were subsequently upheld by the domestic courts.
In the Mr Latypov’s case (application no. 48121/13), the Sovetskiy District Court of Ufa found such refusal to be unlawful and unsubstantiated on the ground that the investigator failed to interview the applicant and to conduct a forensic medical examination.
In the Mr Vasilyev’s case (application no. 42438/15), the applicant’s complaint about the ill-treatment in the course of the arrest and in police custody was first examined and rejected during his trial, after that the applicant initiated separate proceedings to open a criminal case against the police officers, but to no avail.
The applicants’ personal details as well as other relevant information about the circumstances of their respective arrests and their attempts to complain about ill-treatment at domestic level are summarised in the Appendix.
B. Relevant domestic law and practice
1. The Police Act
Sections 18-20 of the Police Act 2011 (Federal Law no. 3-FZ of 7 February 2011) provide that
- a police officer may use physical force, special means or a weapon during the arrest,
- a police officer shall ensure that a person injured receives first aid,
- once the physical force used resulted in the damage to health, and once the special means or a weapon are used a police officer shall submit a report about the use of physical force, special means or a weapon to his supervisor within twenty-four hours.
The Police Act 1991 (Federal Law no. 1026-I of 18 April 1991) and respective by-laws contained similar provisions.
2. Other by-laws
The Instruction on the police officers’ execution of their obligations and rights in the police departments of the Ministry of the Interior after the persons are taken to the police custody (approved by the order no. 389 of the Ministry of the Interior of the Russian Federation on 30 April 2012) provides that
- a police officer on duty in the police custody shall inform his superior about all the cases when an arrested and taken to the police custody person has visible wounds, injuries or is in the state that requires urgent medical intervention;
- a police officer is to call an ambulance or take a person to a nearby hospital;
- a police officer is to find out the reasons and circumstances of the injuries sustained by the person concerned. In case the person concerned reports about violent actions that resulted in his injuries then the police officer is to receive a criminal complaint from the person, if not, then to draw up a reasoned report and register it in the Register of the criminal complaints.
The named instruction repeated the rules that were in force before its adoption.
COMPLAINTS
The applicants complain under Article 3 of the Convention that the police officers used excessive force in the course of their arrest and under Article 13 of the Convention that they did not have an effective domestic remedy at their disposal.
Mr Latypov (application no. 48121/13) in addition complains under Article 5 § 4 of the Convention that it took the Supreme Court of the Republic of Bashkortostan one year, six months and six days to examine his appeal lodged against the detention order issued by the Sovetskiy District Court of Ufa (detention order issued on 29 October 2012 and appeal decision adopted on 6 May 2014).
COMMON QUESTIONS to the parties
1. Regard being had to the medical certificates submitted by the applicants (for more details see the Appendix), were they subjected to ill‑treatment, in breach of Article 3 of the Convention, at the hands of police?
As regards the Government’s burden of proof
(a) have the domestic authorities discharged their burden of proof by providing a plausible or satisfactory and convincing explanation on how the applicants’ injuries had been caused (see Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999‑V, and Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000‑VII)? In particular,
- did the police officers report to their supervisor about the use of physical force or/and special means during the arrest (see Shamardakov v. Russia, no. 13810/04, § 133, 30 April 2015)?
- if so, did the reports provide detailed explanation about the circumstances of the applicants’ arrest, including the use of force against them (see Türkan v. Turkey, no. 33086/04, § 48, 18 September 2008)?
- does the Russian legislation and/or regulatory framework provide for an obligation to take an apprehended person without delay before a medical professional, notably with a view of recording the injuries sustained by an apprehended person prior or during the arrest?
- if so, had this obligation been complied with in the present cases (Mammadov v. Azerbaijan, no. 34445/04, § 65, 11 January 2007)?
The Government are invited to produce documentary evidence, including the reports drawn up by police officers about the circumstances of the applicants’ arrests and the medical evidence.
As regards the necessity and the proportionality of the force used
(b) had the recourse to physical force been made strictly necessary by the applicants’ own conduct (see Rizvanov v. Azerbaijan, no. 31805/06, § 49, 17 April 2012)? In particular,
- did the State agents plan the arrest operations in advance?
- did they have sufficient time to evaluate the possible risks and to take all necessary measures for carrying out the arrest (see Rehbock v. Slovenia, no. 29462/95, § 72, ECHR 2000‑XII; Grigoryev v. Russia, no. 22663/06, § 83, 23 October 2012, Davitidze v. Russia, no. 8810/05, § 90, 30 May 2013, Minikayev v. Russia, no. 630/08, §§ 59-60, 5 January 2016)?
2. Did the authorities carry out an effective official investigation into the applicants’ allegations of ill-treatment in the course of their arrest and in police custody as required by Article 3 of the Convention (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000‑IV, Lyapin v. Russia, no. 46956/09, §§ 125-40, 24 July 2014)? In particular,
(a) in cases in which the applicants’ arrests were carried out by masked officers, did they display visibly some anonymous signs allowing their identification and questioning in the event of challenges to the manner in which the operation was conducted (see Hristovi v. Bulgaria, no. 42697/05, § 92, 11 October 2011, and Anzhelo Georgiev and Others v. Bulgaria, no. 51284/09, § 73, 30 September 2014)?
3. Did the applicants have at their disposal an effective domestic remedy or a combination of remedies for their complaints under Article 3 of the Convention, as required by Article 13 of the Convention?
CASE SPECIFIC QUESTION
Application no. 48121/13
Did the length of the proceedings in the present case, by which the applicant sought to challenge the lawfulness of his pre-trial detention, comply with the “speed” requirement of Article 5 § 4 of the Convention (see Mamedova v. Russia, no. 7064/05, § 96, 1 June 2006, Butusov v. Russia, no. 7923/04, §§ 32-35, 22 December 2009, and Pichugin v. Russia, no. 38623/03, §§ 148-56, 23 October 2012)?
APPENDIX
No.
Application
no.
Lodged on
Applicant name
date of birth
place of residence
nationality
represented by
Details about arrest, location of the police station,
arrest record
(if available)
Report drawn up by the police officers about the circumstances of the arrest and the use of force
Medical evidence:
date of examination,
document type
(date of the document)
Applicants’ complaints about ill‑treatment to the domestic authorities
(reasons for refusals)
Applicants’ trial and appeal courts’ judgments
1.
42900/14
02/10/2014
Denis Nikolayevich DRUZHKOV
31/05/1980
Murmashi
Russian
14/01/2013
(at 11 p.m.)
Arrest at the applicant’s flat by the police officers of the special security unit (ОМОН) in masks after several test purchases
Police department, Kola, Murmansk Region (ОМВД по Кольскому району)
No information about when the arrest record was drawn up
No information
15/01/2013
Medical certificate of the ambulance
31/01/2013
Medical examination act
28/02/2013
Forensic medical examination report
15/01/2013
First complaint to the prosecutor
20/10/2013
Latest refusal to open a criminal case
11/09/2014
Murmansk Regional Court
(it is not excluded that the applicant was injured during the arrest, but the police officers acted in accordance with the law without intention to injure the applicant)
24/01/2014
Kolskiy District Court
15/04/2014
Murmansk Regional Court
Convicted of attempted drug-dealing
2.
44541/08
12/08/2008
Aleksey Nikolayevich ALAYEV
04/04/1961
Nizhniy Novgorod
Russian
COMMITTEE AGAINST TORTURE
10/03/2006
(at around 4 p.m.)
Arrest by the 3 plainclothes police officers of the Nizhniy Novgorod Department of the Federal Drug Control Service (УФСКН по Нижегородской области) at his flat following a number of test purchases
Nizhniy Novgorod Department of the FSKN
(УФСКН по Нижегородской области)
10/03/2006
11/03/2006
SIZO medical certificate
11/04/2006
Forensic medical examination report no. 982
(26/04/2006)
21/03/2006
First complaint to the prosecutor
14/05/2007
Latest refusal to open a criminal case
04/03/2008
Nizhniy Novgorod Regional Court
(the physical force was used during the arrest to overcome the applicant’s resistance, the police officers did not exceed their authority during the arrest)
The domestic courts that convicted the applicant examined his plea about ill-treatment
03/07/2006
Sormovskiy District Court
(the applicant was injured during the arrest to overcome his resistance, police officers’ actions were provoked by the necessity, circumstances of the applicant’s arrest, no indication that the measures taken were excessive)
03/07/2006
Sormovskiy District Court
15/09/2006
Nizhniy Novgorod Regional Court
Convicted of attempted drug-dealing
3.
61817/11
14/09/2011
Konstantin Aleksandrovich TSYKALO
02/07/1972
Moscow
Russian
Sergey Ivanovich KIRYUKHIN
29/09/2009
(at around 4.30 p.m.)
Arrest outdoors by the special unit
Orenburg Regional Department of the Federal Security Service in Orsk (УФСБ России по Оренбургской области в г. Орск)
29/09/2009
Arrest record drawn up
No information
29/09/2009
Medical examination act no. 3913
(30/09/2009)
12/03/2010
Medical examination act no. 935
(19/10/2010)
No information about first complaint
16/05/2011
Latest refusal to open a criminal case
15/07/2011
Military Court of the Privolzhsk Command
(the physical force was used during the arrest to overcome the applicant’s resistance, no grounds to consider the force used as excessive)
28/09/2009
Orenburg Regional Court
Convicted of bribe-taking
4.
11587/12
05/12/2011
Yevgeniy Yuryevich KULEMIN
24/10/1971
Sorda
Russian
20/04/2011
(at around 8 p.m.)
Arrest outdoors immediately after the “test purchase”
Police station of Novoulyanovsk
(ОМ при ОВД по МО «Город Новоульяновск» и «Ульяновский район» Ульяновской области)
20/04/2011
(at 11.58 p.m.)
Arrest registered
20/04/2011
(at 11.58. p.m.)
Arrest record drawn up
20/04/2011
21/04/2011
Report from IVS
(03/06/2011)
April 2011
First complaint to the investigative committee
09/01/2012
Latest refusal to open a criminal case
19/03/2012
Ulyanovsk District Court
(the physical force was used during the arrest to overcome the applicant’s resistance, no grounds to consider the force used as illegal)
16/08/2011
Ulyanovskiy District Court
10/04/2013
Ulyanovsk Regional Court
Convicted of attempted drug-dealing
5.
10031/13
16/01/2013
Aleksey Aleksandrovich PALATOV
03/12/1980
Pskov
Russian
18/10/2009
(at around 11.40 p.m.)
Arrest at his fiend’s flat
Police department no. 3, Pskov
(3 ГОМ УВД по г. Псков)
No information
20/10/2009
SIZO medical examination act
26/11/2009
Medical examination act no. 2739
06/11/2009
First complaint to the investigative committee
05/10/2012
Latest refusal to open a criminal a case
05/09/2013
Pskov Regional Court
(the applicant could have been injured during his arrest to overcome his resistance, the use of special means (a rubber truncheon) corresponded to the applicant’s behaviour and was justified; the police officer violated the law as they did not draw up the record on the use of special means during the arrest)
28/01/2010
Pskovskiy Town Court
Convicted of robbery
6.
42417/13
27/05/2013
Aleksandr Viktorovich NAKAGUTOV
14/03/1968
Yekaterinburg
Russian
20/12/2012
Arrest at home
Police department no. 7, Yekaterinburg (отделение полиции № 7, Екатеринбург)
21/12/2012
Arrest record drawn up
No information
21/12/2012
Forensic medical examination report no. 12435
(29/01/2013)
01/02/2013
First complaint to the investigative committee
19/05/2013
Latest refusal to open a criminal case
09/09/2013
Sverdlovsk Regional Court
(the applicant could have been injured during his arrest to prevent his possible sexual assault of minor, no indication that the physical force used was excessive; at the same time the possibility that the applicant had been injured before the arrest is not excluded)
24/02/2014
Sverdlovsk Regional Court
04/06/2014
Supreme Court of the Russian Federation
Convicted of sexual assault of a minor
7.
48121/13
18/06/2013
Marat Rifovich LATYPOV
22/08/1976
Ufa
Russian
09/12/2011
Arrest outdoors in the evening during an undercover operation “surveillance”
Police department no. 7, Ufa (отделение полиции № 7 по г. Уфа)
10/12/2011
(at 6.30 p.m.)
Arrest record drawn up
No information
10/12/2011
Certificate of the traumatology centre
12/12/2011
SIZO records
(14/06/2012)
No information about first complaint
20/11/2012
Latest refusal to open a criminal case
03/03/2014
Sovetskiy District Court of Ufa, Republic of Bashkortostan
quashed the refusal
(the applicant was not interviewed and a forensic medical examination was not conducted)
25/06/2014
Sovetskiy District Court of Ufa, Republic of Bashkortostan
Convicted of illegal storage of drugs
8.
31915/14
31/03/2014
Yaroslav Yuryevich VERBITSKIY
29/05/1987
St Petersburg
Russian
01/02/2011
(at around 10 p.m.)
Arrest outdoors by the police officers of the Saint-Petersburg department of the FSKN (УФСКН России по Санкт-Петербургу и Ленинградской области) in masks with guns and hammers
Before the applicant’s arrest an undercover operation “test purchase” was conducted in respect of his brother, the authorities mistook the applicant for his brother
Saint-Petersburg department of the FSKN
02/02/2011
(at around
6 a.m.)
Release
No information
02/02/2011
Certificate of the traumatology centre
(14/02/2011)
09/09/2011
Consulting report
no. 1761
04/02/2011
First complaint to the prosecutor
19/02/2014
Latest refusal to open a criminal case
04/03/2014
St Petersburg City Court
(the applicant could have been injured during his arrest to overcome his resistance)
Neither administrative nor criminal proceedings were instituted against the applicant
9.
42438/15
05/08/2015
Vladimir Igorevich VASILYEV
20/01/1988
Rybinsk
Russian
28/03/2014
(at around 2 p.m.)
Arrest during an undercover operation “surveillance” outdoors
Several days before the applicant’s arrest an undercover operation “test purchase” was conducted in respect of the applicant
Criminal investigations service of the Yaroslavl Region Department of Interior (УУР УМВД по Ярославской области)
28/03/2014
(at 7 p.m.)
Arrest record drawn up
No information
29/03/2014
SIZO report
No information about first complaint
The domestic courts that convicted the applicant examined his plea about ill-treatment
12/10/2015
Latest refusal to open a criminal case
21/06/2016
Yaroslavl Regional Court
(the applicant’s injuries could be explained by the force used during his arrest and escort or by some other circumstances)
27/06/2014
Kirovskiy District Court of Yaroslavl
25/08/2014
Yaroslavl Regional Court
11/02/2015
Presidium of the Yaroslavl
Regional Court
Convicted of attempted drug-dealing
10.
45235/16
20/07/2016
Vitaliy Vitalyevich SOKOLOV
25/02/1972
Asino
Russian
11/02/2015
(at around 3 p.m.)
Arrest outdoors
Police department “Asinovskiy”, Asino, Tomsk Region (МО МВД России «Асиновский» УМВД России по Томской области)
No information
13/02/2015
SIZO medical certificate
12/02/2015
Testimonies of the applicant’s SIZO cellmates
(01/05/2016)
Undated
extract from the applicant’s medical card
04/03/2015
First complaint to the prosecutor
28/03/2016
Latest refusal to open a criminal case
(the police officers had to use physical force during the applicant’s arrest as the applicant tried to run away, the police officers did not exceed their authority)
13/04/2015
Asinovskiy Town Court of the Tomsk Region
Convicted of illegal acquisition and storage of drugs
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