FARTUSHIN v. RUSSIA

FIRST SECTION

Application no. 38887/09
by Sergey Valeryevich FARTUSHIN
against Russia
lodged on 25 May 2009

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Sergey Valeryevich Fartushin, is a Russian national who was born in 1985 and lives in Sarov, Nizhniy Novgorod region. He is represented before the Court by The Committee Against Torture, a non‑governmental organisation based in Nizhniy Novgorod.

The facts of the case, as submitted by the applicant, may be summarised as follows.

A. Alleged ill-treatment in police custody

Investigation department at the Sarov police department (управление внутренних дел г. Саров, “Sarov UVD”) carried out an investigation into the thefts of a car and an all-terrain vehicle from private garages.

On 5 May 2008 at about 10:40 a.m. Mr V., an operative agent of the Sarov UVD, called the applicant, who was suspected of having committed the thefts, on his mobile phone and requested him to come to office no. 320 at the Sarov police station. At about 2 p.m. on the same day the applicant arrived at the police station accompanied by his friends who stayed outside awaiting his return. In office no. 320 operative agent V. and the chief of the criminal investigation unit of the Sarov UVD Mr B. demanded that the applicant confess to the thefts. When he refused, he was taken to a nearby office, shackled and beaten up by B., who kicked and punched him in the head, trunk and extremities and jumped on his head, while V. was shouting threats at the applicant.

Afterwards the applicant was kept in different offices of the criminal investigation unit. He was given no drink or food. He felt unwell and vomited blood. No medical help was provided to him despite his requests.

At 8:20 p.m. on 6 May 2008 he was formally apprehended as a suspect and at 8:55 p.m. placed in IVS, a detention facility at the Sarov UVD. The applicant’s cellmate C. saw injuries on the applicant’s head and learned from him that he had been beaten up by the policemen in order to force him to confess to some crime. An ambulance was called as the applicant fell unwell. An ambulance doctor diagnosed him with stomach ulcer. According to the IVS records, the applicant had abrasions on his arms.

B. Inquiry into the alleged ill-treatment

1. Investigation Committee’s refusal to open criminal proceedings

On 6 May 2008 the applicant’s family retained a lawyer who visited the applicant in the IVS on the following day and photographed injuries on his body.

On 8 May 2008 the applicant’s lawyer lodged an application with the Sarov Investigation Department of Investigation Committee at Nizhniy Novgorod prosecutor’s office (the “Sarov Investigation Committee”) in which the applicant complained of his ill-treatment by the police officers and his unlawful deprivation of liberty on 5 and 6 May 2008.

On 8 May 2008 the applicant was brought before a judge who ordered his remand in custody.

On 12 May 2008 the applicant was examined by a forensic medical expert. According to the expert’s report (акт судебно-медицинского освидетельствования) no. 572, the applicant had a bruise on his back, an abrasion on his left forearm and an endermic haemorrhage on his chest which could have been inflicted by blunt objects on 5-6 May 2008.

On 13 May 2008 the applicant was charged with the theft under Article 158 of the Criminal Code.

On 22 May 2008 the Sarov Investigation Committee decided not to bring criminal proceedings in respect of the applicant’s complaint. On 22 July that decision was quashed and a new similar decision was taken on the next day. After several rounds of quashing and issuing new decisions refusing prosecution the last such decision not to initiate criminal proceedings for the absence of corpus delicti in the actions of the police officers was taken on 10 June 2009 under Article 24 § 1 (2) of the Code of Criminal Procedure. The decision stated that the applicant’s allegations of ill‑treatment and unlawful deprivation of liberty were groundless.

2. Domestic courts’ review of the refusal to open criminal proceedings under Article 125 of the Code of Criminal Procedure

The applicant lodged a court appeal against the Sarov Investigation Committee’s decision of 10 June 2009. On 3 August 2009 Judge of the Sarov Town Court found the decision lawful and well-grounded. On 15 September 2008 the Nizhniy Novgorod Regional Court upheld the first instance court’s decision and rejected the applicant’s appeal against it.

COMPLAINTS

1. The applicant complains under Article 3 of the Convention that he had been tortured in police custody and that no effective investigation into his complaint was carried out.

2. The applicant complains under Article 5 §§ 1 (c), 3 and 5 of the Convention of his unacknowledged detention at the Sarov police station from 2:00 pm on 5 May 2008 until the records of his apprehension as a suspect were drawn on 6 May 2008. As a result, he was brought before a judge who ordered his detention on remand only three days after his actual apprehension. The complaint of his unacknowledged detention was rejected by the authorities, which deprived him of a possibility to claim compensation.

3. The applicant complains under Article 13 of the Convention that the refusal to institute criminal proceedings in respect of his complaints of torture and unlawful detention made it impossible for him to be granted victim status which could have entitled him to compensation.

QUESTIONS TO THE PARTIES

1. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, did the deprivation of liberty from 2 p.m. on 5 May 2008 until the moment of his apprehension as a suspect on 6 May 2008 fall within paragraph (c) of this provision? Was the applicant’s deprivation of liberty compatible with the guarantees of Article 5 §§ 1-5 of the Convention?

In answering that question the Government are requested to address, inter alia, the following points:

(a) What were the legal grounds and reasons for:

(i) the request by the Sarov UVD operative agent Mr V. to the applicant to appear at the Sarov UVD on 5 May 2008?

(ii) the applicant’s detention between the moment of his actual apprehension and his formal apprehension as a suspect?

(b) In view of the Sarov UVD visitors’ records of 5 May 2008, did the applicant enter the Sarov UVD on 5 May 2008 at 2 p.m. and went to office no. 320?

(c) Was the applicant held continuously in the Sarov UVD from 5 May 2008 until his apprehension as a suspect on 6 May 2008? If not, when did the applicant leave the Sarov UVD and again entered it on 6 May 2008? Please submit the relevant extracts from the Register of persons brought to a police station, visitors’ records and/or any other official records for 5 and 6 May 2008.

2. Was the applicant subjected to torture, inhuman or degrading treatment or punishment by police officers on 5 and 6 May 2008, in breach of Article 3 of the Convention?

In answering that question the Government are requested to address, inter alia, the following points:

(a) Once in the hands of the police:

(i) Was the applicant informed of his rights? If so, when, and what rights was he informed about?

(ii) Was he given the possibility of informing a third party (family member, friend, consulate, etc.) about his detention and his location and, if so, when?

(iii) Was he given access to a lawyer and, if so, when?

(iv) Was he given access to a doctor and, if so, when and was his medical examination conducted out of the hearing and out of sight of police officers and other non‑medical staff?

(b) What activities involving the applicant were conducted at the Sarov UVD on 5 and 6 May 2008 by the Ministry of the Interior organs (органы Министерства Внутренних Дел), and during what periods? If they were carried out at night, was this lawful? What was the applicant’s procedural status? Where was the applicant held on 5 and 6 May 2008? What confessions and/or statements (явка с повинной; показания) did the applicant give during that period (please submit relevant documents, in particular, written, audio or video records containing the applicant’s statements/confessions)? Was the applicant given access to a lawyer before and during each such activity?

(c) What activities involving the applicant were conducted on 5 and 6 May 2008 by the investigating authority in charge of the investigation of the thefts of a car and an all-terrain vehicle from private garages, and during what period? If they were carried out at night, was this lawful? What was the applicant’s procedural status? What confessions and/or statements (явка с повинной; показания) did the applicant give during that period (please submit relevant documents, in particular, written, audio or video records containing the applicant’s statements/confessions)? Was the applicant given access to a lawyer before and during each such activity?

3. Having regard to the procedural protection from torture, inhuman or degrading treatment or punishment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention? In particular:

(a) Were the investigators (investigating authority), who carried out the inquiry into the applicant’s allegations of police ill‑treatment, independent of the investigators (investigating authority) who were responsible for investigating the criminal case against the applicant?

(b) Which police officers from which police department(s) were involved in the inquiry into the applicant’s complaint of police ill‑treatment? What operational and other activities did they carry out in the course of the above inquiry? Were they independent of the police department and those of its officers who were allegedly implicated in the applicant’s ill-treatment?

4. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 3, as required by Article 13 of the Convention? In particular, having regard to the fact that the investigating authority decided, under Article 24 § 1 (2) of the Code of Criminal Procedure, not to institute criminal proceedings on the applicant’s complaint of police ill‑treatment for the absence of corpus delicti in the actions of the police officers, was it open to the applicant to lodge a civil action against the State for compensation on account of the alleged police ill-treatment and, if so, was this available not only in theory but also in practice and would it have any reasonable prospects of success (see, mutatis mutandis, Chember v. Russia, no. 7188/03, §§ 70-73, 3 July 2008)?

5. In answering each of the above questions the Government are requested to submit the relevant documents in support of their information, and, in particular, the following:

(a) the Sarov UVD IVS records concerning the applicant’s state of health and his injuries on his placement in the IVS on 6 May 2008;

(b) a typed transcript of notes entered on 6 May 2008 into the IVS medical aid records in respect of the applicant;

(c) medical records concerning the applicant’s examination by the ambulance doctor on 6 May 2008;

(d) the investigating authority’s decisions in respect of the applicant’s complaint of ill-treatment and decisions to quash them (apart from those decisions which were submitted to the Court by the applicant), in particular the Sarov Investigation Committee’s decision to refuse prosecution of 10 June 2009 (a copy in the Court’s file is of poor quality);

(e) information about the status and outcome of the criminal proceedings against the applicant, a first-instance and an appeal courts’ judgments, the applicant’s statement of appeal and the court hearing records.

FIRST SECTION

Application no. 57519/09RAZZAKOV c. Russie

Application no. 46956/09LYAPIN c. Russie

Application no. 38887/09FARTUSHIN c. Russie

Application no. 31316/09GORSHCHUK c. Russie

Application no. 4722/09TURBYLEV c. Russie

Application no. 52796/08OVAKIMYAN c. Russie

Application no. 2281/06ANDREYEV c. Russie

GENERAL QUESTIONS TO THE PARTIES

In the light of the issues raised as a result of alleged ill-treatment by police in seven communicated cases (Razzakov (no. 57519/09), Lyapin (no. 46956/09), Fartushin (38887/09), Gorshchuk (31316/09), Turbylev (4722/09), Ovakimyan (52796/08) and Andreyev (2281/06)) and in view, in particular, of such fundamental guarantees to detained persons as the right to have one’s deprivation of liberty officially recorded, the possibility of informing a third party about one’s detention, access to a lawyer and access to a doctor, which should apply from the very outset of deprivation of liberty and of which they should be expressly informed without delay (see, among other authorities, Menesheva v. Russia, no. 59261/00, § 87, ECHR 2006‑III; Salmanoğlu and Polattaş v. Turkey, no. 15828/03, § 79, 17 March 2009; Algür v. Turkey, no. 32574/96, § 44, 22 October 2002; Salduz v. Turkey [GC], no. 36391/02, § 54, 27 November 2008), the Government are requested to provide information about the relevant domestic law and practice on the points below, demonstrating their state of development at the time of the events in each case, that is from 2005 to 2009 (including the Constitution, laws, by-laws (подзаконные акты), service instructions (служебные инструкции), practice directions, decisions or other acts of the Supreme Court of the Russian Federation and decisions and other acts of the Constitutional Court of the Russian Federation):

(1) What is the maximum duration between the moment of an individual’s actual apprehension (фактическое задержание) in all possible cases of deprivation of liberty in criminal and administrative proceedings, and:

(i) his or her contact with a third party (family member, friend, consulate, etc.) in order to inform [them] about his detention and his location?

(ii) access to a lawyer?

(iii) access to a doctor?

(iv) notification of the above-mentioned rights?

How are these guarantees (to inform a third party about one’s detention, access to a lawyer and to a doctor) regulated by domestic law? Does a person in the above-mentioned situations have a right to access to a doctor before, during and after admission to an IVS (изолятор временного содержания) or SIZO (следственный изолятор)? Do medical examinations at police premises and the IVS or SIZO have to be conducted out of the hearing and out of sight of police officers and other non-medical staff?

(2) Besides the formal recording of various forms of deprivation of liberty in accordance with the rules of criminal and administrative procedure, do the police keep custody records in respect of each person who has been apprehended or otherwise deprived of liberty, with information, inter alia, about the time of the actual apprehension and arrival at a police station, the time and nature of actions taken in his or her respect and the police officers responsible for conducting such actions?

(3) Do the records of apprehension (протокол задержания) of a suspect have to contain information about the actual apprehension (фактическое задержание) of a suspect prior to his or her being brought before an investigator or other competent authority, such as the exact time, place, legal basis and reasons (reference is made to Article 92 of the Code of Criminal Procedure and Appendix 12 to the Code)? Which document records the time when the suspect is brought before an investigator or other competent authority and from which the three-hour time-limit referred to in Article 92 starts to run?

(4) What behaviour should be expected from police officers carrying out an apprehension, or bringing a suspect before a competent authority or conveying him or her to a competent authority in administrative and criminal proceedings (задержание, доставление, привод) to? In particular, do they have to wear uniform, use marked cars, produce their service badges and explain the legal basis and reasons for their actions? How is the use of force and handcuffs regulated? What are the guarantees against abuses by police officers in such situations?

(5) In accordance with the rules of criminal procedure, what activities can police officers carry out with the participation of a person after his or her actual apprehension? Can they question him or her or take explanations about an offence prior to questioning by an investigator? Can they take a confession to a crime?

(6) Do district police departments have cells for persons detained in criminal and administrative proceedings? Are they equipped for overnight detention? Are interrogations and other procedural activities with detained persons carried out in offices belonging to police officers or in special rooms for those activities? Is audio or video recording used by police officers and investigators for questioning and other procedural activities?

(7) What are the requirements, guarantees and procedure for taking a confession to a crime (явка с повинной) under the Code of Criminal Procedure, in particular Article 142 of the Code and Annex 3 to the Code? Is the person informed of any rights and legal consequences and given access to a lawyer before a confession is taken? Can a confession be taken from any person irrespective of his or her procedural status, for example, a witness or any other person who is not formally declared a suspect or an accused, and, if so, does Article 75 § 2 (1) of the Code (which qualifies as inadmissible evidence the statements made by a suspect or an accused in the absence of a lawyer in pre-trial proceedings and not confirmed in court) apply to confessions taken from persons other than a suspect or an accused? What is the court practice with regard to the application of Article 75 § 2 (1) of the Code of Criminal Procedure (please submit a representative review of court decisions in individual cases)?

(8) As regards the competent authorities’ reaction to complaints about police ill-treatment, what criteria do they use when deciding whether to institute criminal proceedings and carry out an investigation? How is Article 140 § 2 of the Code of Criminal Procedure (setting out the ground for the institution of criminal proceedings) interpreted by the domestic courts, the Ministry of the Interior and the investigating authority at the prosecutor’s office as regards such complaints?

(9) As regards an inquiry under Article 144 of the Code of Criminal Procedure:

(i) Which of the investigation methods employed for a preliminary investigation under Articles 150-226 of the Code can be employed in the course of such an inquiry?

(ii) What other methods can be employed?

(iii) Are persons from whom explanations (объяснения) are taken liable for false statements or refusal to testify?

(10) Which investigating authority and police department (which carries out operational, search and other procedural activities) is required to conduct an inquiry under Article 144 of the Code of Criminal Procedure (prior to a decision on whether to open criminal proceedings) and preliminary investigation (after criminal proceedings are brought) into allegations of police ill-treatment? Are they independent of the investigating authority and the police departments implicated in the alleged ill-treatment?

 

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