Communicated on 9 December 2015
THIRD SECTION
Applications nos 7415/09 and 17853/09
Gennadiy Aleksandrovich GOROKH against Russia
and Aleksey Viktorovich PETUKHOV against Russia
lodged on 4 December 2008 and 29 November 2008 respectively
STATEMENT OF FACTS
1. The applicant in the first case, Mr Gennadiy Aleksandrovich Gorokh, is a Russian national who was born in 1962, is serving a sentence in Kuybyshev, and is represented by Vera Gennadyevna Frolenko, a lawyer practising in Novosibirsk.
2. The applicant in the second case, Mr Alexey Viktorovich Petukhov, is a Russian national who was born in 1987 and lives in Tula.
3. The facts of the cases, as submitted by the applicants, may be summarised as follows.
A. Mr Gorokh
1. The applicant’s arrest and alleged ill-treatment
4. On 5 October 2006 the traffic police of the Novosibirsk Region arrested the applicant in a car on the road. He was taken to the Tatarskiy district police department of the Novosibirsk Region (Татарский РОВД Новосибирской области).
5. The applicant alleges that an administrative case was opened against him for using “offensive language”. On 6 October 2006 the Justice of the Peace of the Tatarskiy District ordered his administrative arrest. He was put in a temporary detention facility at the aforementioned district police department.
6. According to the applicant, from 5 to 7 October 2006, police officers from both the Tatarskiy and Barabinskiy district police departments of the Novosibirsk Region tortured him in order to force him to confess to several crimes (murders and thefts) which he had not committed. Police officers, including I., M., T., G. and V., punched and kicked the applicant many times all over his body. Restraining the applicant’s arms and legs, the police officers allegedly inserted the end of a chair leg into his anus. According to the applicant, he lost consciousness from the shock of the pain.
7. As a result of this alleged ill-treatment, the applicant signed several “statements of surrender and confession” in which he confessed to various thefts in the Novosibirsk Region. He also signed a record of his formal police interview, which took place on 10 October 2006. Allegedly, he signed all of these documents in the absence of a lawyer.
8. On 10 October 2006 the applicant was formally charged and, for the first time, was given access to a lawyer, Ms S.
9. On 11 October 2006 a court ordered the applicant’s detention.
10. On 13 October 2006 the applicant was placed in a temporary detention facility in the Vengerovskiy district of the Novosibirsk Region, where he attempted to commit suicide by cutting a vein on his hand.
2. The applicant’s injuries
11. According to the applicant, he asked the management of the temporary detention facility of the Tatarskiy police department of the Novosibirsk Region to record his injuries shortly after his alleged ill‑treatment, but his request was dismissed.
12. On 11 October 2007 the applicant’s lawyer, S., noted that, in his complaint of ill-treatment, the applicant had stated that he was suffering from constant pain in his abdominal region and anus, in addition to experiencing bleeding in the same area. S. made a request for the applicant to have a forensic medical examination.
13. On 13 October 2006 the investigator ordered a forensic medical examination of the applicant, which was conducted between 13 and 22 October 2006 (expert report no. 43). The applicant did not provide a copy of that report.
14. From the case material, it appears that expert M. recorded that the applicant had the following injuries: (i) several bruises on the chest (on the front and on both sides), which had originated from a blow to the chest with a hard, blunt object or from a collision with a hard, blunt object approximately seven days before the examination and which had not caused the applicant any “health damage”; and (ii) several wounds on the left shoulder and forearm, which had originated from impact with a sharp, cutting object shortly before the examination – possibly on 13 October 2006 – which had caused “minor damage” to the applicant’s health.
15. Expert M. further noted the absence of any injuries in the area of the applicant’s anus. According to M., she was assisted by surgeon G. during the examination of the applicant, who conducted both an external and internal digital examination of the applicant’s anus and recommended an additional examination by an endoscopist. Endoscopist S. carried out a more detailed examination of the applicant’s anus. No anal injuries were recorded by any of the doctors. The applicant maintained his complaint that no in‑depth examination had been carried out by a specialist doctor (a proctologist).
16. On 20 November 2006 the applicant’s lawyer requested another forensic medical examination of the applicant. On 9 February 2007 the investigator ordered a second forensic medical examination, which was conducted between 14 and 28 February 2007 on the basis of analysis of: the applicant’s medical records, the forensic medical expert report no. 43 of 13‑22 October 2006 and the explanations given by the applicant (in expert report no. 772 of 28 February 2007). The second expert’s conclusions about the origin of the applicant’s injuries were generally similar to the conclusions of the first expert.
3. Refusal to open a criminal case
17. On 11 October 2006 S. lodged a complaint regarding the applicant’s alleged ill-treatment by police officers with the prosecutor of the Tatarskiy Inter-district Prosecutor’s Office.
18. On 10 December 2006 the investigator issued a refusal to open a criminal case against the police officers in question, on account of the absence of a crime and the absence of the constituent elements of a crime in respect of the police officers’ actions. The applicant did not provide a copy of that refusal.
4. Criminal proceedings against the applicant
19. On 1 April 2008 the Vengerovskiy District Court of the Novosibirsk Region convicted the applicant of several theft offences and sentenced him to ten years’ imprisonment. Throughout the trial, the applicant denied his guilt.
20. During the trial, the applicant complained of his ill-treatment by police officers and asked the court to exclude evidence obtained against him as a result of coercion, including all of his “statements of surrender and confession” and his formal interview records of 10 October 2006, all of which he maintained he had signed in the absence of a lawyer and under duress.
21. The trial court noted that the facts of the applicant’s alleged ill‑treatment by police officers had not been established during the pre‑investigation inquiry into that issue, and that the refusal to open a criminal case against the police officers had been issued on 10 December 2006.
22. In addition, the trial court heard from Drs G. and S., as well as M., who had examined the applicant on 13 October 2006 (see paragraphs 13 and 14 above). They confirmed that the applicant had presented with bruises on his chest and wounds on his shoulder and forearm, but that they had not identified any apparent injury to his anus during their examinations.
23. M. also noted that: (i) the bruises on the applicant’s chest could have been self-inflicted or caused by somebody other than the applicant; and (ii) the wounds on his shoulder and forearm had been self-inflicted on 13 October 2006 (and the applicant did not deny this fact). She further denied the possibility of the end of a chair having been inserted into the applicant’s anus, since this would have caused injuries (wounds and tears), which neither she nor Drs G. and S. had identified during their examinations of the applicant shortly after his alleged ill-treatment.
24. Considering the above, the trial court concluded that, objectively, the applicant had had bruises on his chest. The court did not find any evidence that those bruises had been caused by the police officers. The court dismissed the applicant’s allegations of sexual abuse as unsubstantiated.
25. Thus, the trial court dismissed both the applicant’s complaint of ill‑treatment by police officers and his application to exclude his “statements of surrender and confession” and his formal interview record of 10 October 2006 as inadmissible evidence.
26. The court also noted that the above statements and records had been signed in the presence of lawyer B., although the applicant denied that fact. The trial court did not examine B.
27. On 25 July 2008 the Novosibirsk Regional Court upheld the judgment of the trial court on appeal. The appeal court also noted the statements given by the police officers:
(i) Police officer O. stated that on 6 October 2006 he had interviewed the applicant after his arrest. The applicant had allegedly told him about the thefts. Police officer O. also stated that the applicant had not had any physical injuries. He denied putting the applicant under any pressure.
(ii) Police officer S. stated that he had taken the applicant’s “statements of surrender and confession” while he had been on duty, and that the applicant had provided them voluntarily. He further stated that the applicant had shown a desire to cooperate. He denied putting the applicant under any physical or psychological pressure.
(iii) Police officer M. provided similar statements. He also added that the “statements of surrender and confession” that the applicant had provided, in addition to his formal interview records of 10 October 2006, had been prepared in the presence of a lawyer (B.), and that the applicant had not submitted any complaints until lawyer S. had intervened in the proceedings (on 10 October 2006).
(iv) Police officers I. and T. also confirmed the applicant’s cooperation with the investigation authorities, and denied the application of any unlawful investigation methods in relation to his case.
28. The appeal court further examined the applicant’s forensic medical examination results and the doctors’ evidence, noted the refusal to open a criminal case against police officers owing to the absence of a crime, and upheld the trial court’s conclusion that the police officers had not caused the applicant any injuries.
29. The appeal court further concluded that the applicant’s “statements of surrender and confession” and formal interview records of 10 October 2006 had been obtained in accordance with the relevant criminal procedural law requirements and in the presence of lawyer B., and had been signed by B. on each page. The applicant denied that B. had been present.
B. Mr Petukhov
1. The applicant’s arrest and alleged ill-treatment
30. At around 7 p.m. on 15 January 2007 the applicant was arrested on the street by policemen and driven to the police station of the Sovetskiy district of Tula (РОВД по Советскому району г. Тулы). The applicant was placed in a cell and informed that he was there on suspicion of robbery. Allegedly, the police officers did not let the applicant (who was nineteen years old at the time) inform his parents of his arrest.
31. After a short while, one policeman started threatening the applicant and saying that he would not survive until morning. He grabbed the applicant’s clothes and pulled him so that he hit against the bars of the cell. Two other policemen then took the applicant to an office, made him sit down on the floor and bound his hands behind his back. One of the policemen told the applicant that he had robbed their colleague and that it would be better for him to confess to the crime, otherwise they would force him to confess. When the applicant refused to confess, one of the policemen put a plastic bag over his head so that he started to suffocate. As the applicant still refused to confess, the policeman continued to suffocate him intermittently, and did so approximately five times. As this was happening, the policemen were also kicking the applicant on his feet and in his back and lumbar region, and punching him on his chest and head. They also raised his hands behind his back so that he experienced severe pain. After this ill-treatment, the applicant agreed to confess to the crime.
32. After the beating, the applicant repeated his confession during his interview with investigator D. in the presence of lawyer B. on the night of 16 January 2007. According to the applicant, he did not inform the investigator and B. about his ill-treatment by the policemen, because he was still under police control and in the same building where he had been physically assaulted.
33. On the night of 16 January 2007, after being questioned by investigator D., the applicant was released from the police station, having given an undertaking not to leave town.
2. The applicant’s injuries
34. At around 6.10 p.m. on 16 January 2007 the applicant requested medical assistance at the traumatology unit of Tula town hospital. According to the applicant’s hospital records from that date, he was diagnosed with: (i) a closed fracture of the chest; and (ii) a head injury (concussion and bruising to the back of the head).
35. On 18 January 2007 the applicant’s state of health deteriorated and he was taken to hospital by ambulance and admitted. According to his medical record no. 1347, he was in the neurology unit from 18 January to 5 February 2007 and was diagnosed with concomitant injuries: (i) a head injury (concussion and bruising); (ii) bruises on the chest and lumbar region; and (iii) bruises on the left wrist, nose and upper lip.
36. On 18 January 2007 the applicant’s forensic medical examination commenced and was completed on 16 March 2007 (report no. 307). The applicant did not provide a copy of that report. Other case documents indicate that the report confirmed that the applicant had the following injuries: (i) a head injury in the form of a concussion and bruising to the back of the head; (ii) a bruise on the chest; (iii) bruises in the area of the left side of the collar bone; (iv) bruises behind the knee joint; and (v) an abrasion on the right leg. According to the expert, these physical injuries had been caused by hard, blunt objects of limited surface area either rubbing or hitting against the applicant at least five times. They had been caused three to four days before the examination and had caused “minor damage” to his health. The bruising to the right side of the lumbar region, left wrist and nose, and the fracture of the chest were not confirmed.
37. It appears that an additional forensic medical examination of the applicant was ordered, but, for unknown reasons, its results were not received by the investigation unit and were not considered when the most recent refusal to open a criminal case against the policemen was issued.
3. Refusals to open a criminal case
38. On 16 January 2007 the applicant lodged a complaint against the police officers with the Tula prosecutor’s office, alleging ill-treatment at the police station on 15 January 2007.
39. On the dates specified below, and in accordance with Article 24 § 1 (1) of the Code of Criminal Procedure (the “CCrP”), officials at the Tula investigation unit issued twelve refusals to initiate criminal proceedings against the police officers, owing to the absence of a crime under Article 286 of the Criminal Code on abuse of powers. Those refusals were systematically overruled by the higher authority within the Investigation Committee as being unsubstantiated or unlawful, and the investigation authorities were ordered to carry out additional inquiries, rectify certain deficiencies in the inquiry process and/or take additional measures:
Refusal No.
issued on:
overruled on:
(i)
26 January 2007
29 January 2007
(ii)
31 January 2007
22 February 2007
(iii)
5 March 2007
16 March 2007
(iv)
26 March 2007
6 April 2007
(v)
10 April 2007
13 August 2007
(vi)
24 May 2007
[unspecified date]
(vii)
17 August 2007
31 October 2007
(viii)
13 November 2007
3 December 2007
(ix)
13 December 2007
22 April 2008
(x)
4 May 2008
14 July 2008
(xi)
24 July 2008
18 August 2008
(xii)
28 August 2008
[no information]
40. The police officers denied any ill-treatment of the applicant. In particular, police officer S. stated that, during his interview, the applicant had told him that he had committed the robbery. The applicant had then been taken to the investigator. According to S., the applicant had not complained of feeling unwell, and had behaved normally. He had not seen that the applicant had any injuries and denied putting him under any physical or psychological pressure. After the investigative actions had concluded, the applicant had been released after giving an undertaking not to leave town. According to S., the applicant had complained of ill‑treatment to avoid criminal liability for the crime which had been committed.
41. During the applicant’s criminal trial, investigator D. and lawyer B. said that the applicant had not complained of ill-treatment during his interview on 16 January 2007. Furthermore, he had not had any visible signs of injuries.
42. Dr B. stated that he had examined the applicant at around 5 p.m. on 16 January 2007. The applicant had told him that he had been physically assaulted at the police station.
43. In its most recent refusal to open a criminal case against the police officers (dated 28 August 2008), the investigation unit also noted the conclusions of the trial court, which had been critical of the statements given by witnesses P.N., B.A., G.Y., G.A. and B.T. concerning the applicant’s alleged ill-treatment (see paragraphs 48-49 below), and had concluded that there was no evidence of ill-treatment by the police officers.
4. Article 125 reviews of the refusals to open a criminal case
44. Under Article 125 of the CCrP, the applicant appealed against several refusals to open a criminal case against the police officers.
45. On 3 July and 17 August 2007 and on 20 June 2008 the Sovetskiy District Court of Tula examined the applicant’s appeals against the refusals of 10 April 2007, 24 May 2007 and 4 May 2008 to open a criminal case against the police officers, and concluded that they had been unlawful. Those refusals were subsequently overruled by the investigative authority, and additional inquiries were ordered.
5. Criminal proceedings against the applicant
46. On 17 March 2008 the Sovetskiy District Court of Tula convicted the applicant of robbery and sentenced him to three years’ imprisonment.
47. At trial, the applicant denied his guilt. He submitted that the police officers had physically assaulted him and had forced him to confess to the crime. After the beatings, the applicant had signed his record of interview with investigator D. in the presence of lawyer B. He had not complained of his ill-treatment to investigator D. and B., because he had been scared that the beatings from the police officers would continue. The court did not exclude the applicant’s formal interview record as inadmissible evidence, despite the applicant maintaining that he had signed it following ill‑treatment.
48. The trial court dismissed the applicant’s allegations of ill-treatment by the police officers as unconfirmed. The court relied mainly on the results of the pre-investigation inquiry into the applicant’s allegations of ill‑treatment, which had resulted in the refusal of 13 December 2007 to open a criminal case against police officers (subsequently overruled).
49. The court was critical of the statements of the following witnesses, who alleged that the applicant had sustained his injuries at the police station.
(i) The applicant’s mother, P.N., received a call from investigator D. on 15 January 2007 at 11.30 p.m. She informed her of the applicant’s arrest on suspicion of robbery. P.N. provided a detailed description of the applicant’s injuries, which she had seen on 16 January 2007 at the police station and later at B.A’s home.
(ii) B.A. stated that the applicant was her boyfriend. On 16 January 2007 P.N. informed her of his arrest. B.A. arrived at the police station and waited for him with his parents. When she saw him, he had red eyes, red areas around his eyes and a red spot on his left cheek. He was not feeling well. He explained that he had been physically assaulted and suffocated by the police officers. The applicant then went to B.A’s home with B.A and his parents. When he took off his clothes, B.A. saw abrasions and scratches on his collarbone and a red area on his back. He also had a swelling on the back of his head, scratches on his legs and his left thumb was numb. He fell asleep immediately. The next day, his parents took him home. At around 4 p.m. on 16 January 2007 B.A. and the applicant’s mother, P.N., went to the Sovetskiy district prosecutor’s office of Tula to lodge a complaint regarding the applicant’s ill-treatment by the police officers. They then went to the hospital, where the doctor diagnosed the applicant with concussion, a bruise on the back of his head and a fracture of his chest. Hospitalisation was recommended, but the applicant refused, saying that on 17 January 2007 he had to have his forensic medical examination. On 18 January 2007 his state of health deteriorated and he was taken to hospital by ambulance. He was in hospital from 18 January to 5 February 2007.
(iii) B.T., B.A’s mother, saw the applicant at around 3 a.m. on 16 January 2007 when he arrived at her home with B.A. and his parents, having come from the police station. His clothes were dirty and he had injuries on his neck, hands, chest and legs. In the morning, he could not wake up and he felt dizzy. He said that the police officers had physically assaulted him and had forced him to confess to the robbery.
(iv) At around 7 a.m. on 16 April 2007 the applicant’s uncle, G.A., received a call from the applicant’s mother, P.N., who informed him of the applicant’s arrest. G.A. went to see him at around 11 a.m. and he was not feeling well. G.A. saw injuries on his wrist. The applicant complained of both pain in his chest and a headache. He also told G.A. about his ill‑treatment by the police officers.
(v) L. shared a room with the applicant in the neurology unit of the hospital where the applicant was treated. The applicant told him that he had been arrested and physically assaulted by police officers, who had forced him to confess to the crime.
(vi) B. was the doctor at the hospital traumatology unit who diagnosed the applicant with a head injury and bruising to the head, chest and wrist. The applicant told him that he had sustained his injuries at the police station.
50. The trial court found that the above-mentioned witnesses had not been eyewitnesses to the alleged ill-treatment. It also found that these statements had been given to help the applicant avoid criminal liability for the crime which had been committed.
51. On 4 June 2008 the Tula Regional Court upheld that judgment on appeal. The applicant maintained his arguments regarding ill-treatment by the police and the forced confession, and denied his guilt. The appeal court dismissed the applicant’s arguments, having concluded that the police officers had not caused him any injury.
COMPLAINTS
The applicants complain under Article 3 of the Convention that they were subjected to ill-treatment by police officers. They further complain under Article 13 of the Convention, in conjunction with Article 3 of the Convention, that the State failed to conduct an effective investigation into those incidents, and that they had no effective domestic remedy.
The applicants also complain under Article 6 of the Convention that the criminal proceedings against them were unfair on account of the use of evidence obtained as a result of their ill-treatment and, in the case of Mr Gorokh, evidence obtained in the absence of a lawyer.
QUESTIONS
1. Having regard to:
(a) the applicants’ interviews at the police stations about their alleged involvement in crimes, and;
(b) the injuries found on the applicants thereafter, as recorded in the relevant medical documents;
have the applicants 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 and 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)?
2. Have the authorities discharged their burden of proof by providing a plausible or satisfactory and convincing explanation as to how the applicants’ injuries were caused (see Selmouni, cited above, § 87, and Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000‑VII)?
3. Having regard to:
(a) the investigation units’ refusals to open criminal cases and investigate the applicants’ allegations of ill-treatment by the police;
(b) in the case of Mr Petukhov, the overruling of those refusals by the investigation units’ higher authority, on the ground that the pre‑investigation inquiries were incomplete, and;
(c) the investigation units’ inability to carry out full investigative procedures, such as formal confrontations, identity parades and searches, within the framework of the pre-investigation inquiries;
did the authorities carry out an effective investigation, in compliance with the procedural obligation under Article 3 of the Convention (see Lyapin v. Russia, no. 46956/09, §§ 125-40, 24 July 2014)?
4. Did the applicants have at their disposal an effective domestic remedy for their complaints under Article 3 of the Convention, as required by Article 13 of the Convention?
5. The Government are invited to submit documents containing the following information in respect of the applicants’ alleged ill-treatment in police custody:
(a) where applicable, the time of their arrival and the length of time the applicants spent in police stations, police cells for administrative offenders, temporary detention facilities (IVS), pre-trial detention (SIZO-type) facilities, medical facilities (ambulances, accident and emergency units, hospitals and forensic medical examination clinics;
(b) the applicants’ injuries and/or their state of health, as recorded in the places listed in sub-paragraph (a) above;
(c) the forensic medical experts’ conclusions about the applicants’ injuries (including forensic medical reports no. 43 of 22 October 2006 (in the case of Mr Gorokh) and no. 307 of 16 March 2007 (in the case of Mr Petukhov)), the investigators’ decisions to order forensic medical examinations of the applicants, and explanations by the applicants and the police officers in question as to the origin of the injuries which formed the basis of experts’ assessments;
(d) a summary of the information listed in sub-paragraphs (a) to (c) above.
6. As regards the inquiry into the applicants’ alleged ill-treatment, the Government are invited to submit:
(a) a numbered list (in chronological order) of all decisions by the investigating authorities, including (in Mr Gorokh’s case) the 10 December 2006 refusal to open a criminal case against police officers; such a list to include the name of the relevant authority, date of the decision and grounds for the refusal to open a criminal case, namely Article 24 § 1 (1) or Article 24 § 1 (2) of the Code of Criminal Procedure, and, in relation to each decision, the relevant decision to revoke it or set it aside (with the name of the authority, date, and reason for the revocation or setting aside);
(b) a numbered list (in chronological order) of all court decisions on the applicants’ appeals against the investigators’ decisions, such a list to include the name of the court which made the decision, and the date and outcome of the decision;
(c) copies of the above decisions by the investigating authorities and the courts, listed in chronological order.
7. Having regard to the use of the applicants’ self-incriminating statements, which were allegedly obtained as a result of their ill-treatment by the police and, in Mr Gorokh’s case, in the absence of a lawyer, did the applicants have a fair hearing, in accordance with Article 6 § 1 of the Convention? At trial, did the applicants apply for such evidence to be declared inadmissible? If so, what were the grounds for such applications and how were they decided by the domestic courts? The Government are invited to submit the relevant extracts of the court records and/or any other relevant documents.
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