Communicated on 4 April 2014
FIRST SECTION
Application no. 41334/07
Sergey Nikolayevich KHALIMENDIK
against Russia
lodged on 30 July 2007
STATEMENT OF FACTS
The applicant, Mr Sergey Nikolayevich Khalimendik, is a Russian national, who was born in 1972 and lives in Sarapul.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The applicant’s arrest, detention and an alleged ill-treatment
(a) The applicant’s arrest on 15 March 2006 and subsequent events
At about 12 a.m. on 15 March 2006 the applicant was arrested by the officers of the Izhevsk Department of the Federal Drug Trafficking Control Service of the Republic of Udmurtiya (“the Drug Control Service”) on suspicion of drug trafficking. He was transferred to the Drug Control office and questioned by Pav., a department officer. In the applicant’s words, from 1 to 5 p.m on that date Pav. beat him up and threatened with further violence in order to extract confession. In particular, he handcuffed him to a chair; threatened to put him in a cell where he would be raped by the inmates; hit his head with a plastic bottle filled with water; on several occasions hit him against the wall. On one occasion the applicant lost consciousness. The beatings alternated with admonitions to him to confess. The applicant refused to produce any statement before the arrival of a lawyer.
At 5.45 p.m. on that date the applicant was brought to department investigator B. It transpires from the arrest record compiled by the investigator at 6.40 p.m. on that date that the applicant was advised of his right not to incriminate himself and had a right to counsel. The applicant signed the record specifying that he refused the assistance of legal aid counsel.
The investigator ordered the applicant’s arrest as a suspect. The applicant informed the investigator about the ill-treatment. However, the latter allegedly refused to take the applicant’s testimony into account or to call a doctor to record the injuries.
At 1 a.m. on 16 March 2006 the applicant was transferred to the temporary confinement cell of the Department of the Interior of Izhevsk (“the IVS”). Having examined the applicant on admission to the IVS, the facility doctor established that the applicant had bruises and abrasions on his forehead. The applicant told the doctor that that the injuries had been inflicted on him by the Drug Control officers during the arrest.
On 17 March 2006 the applicant was transferred from the IVS to remand prison IZ-18/1 of Izhevsk. The remand facility doctor examined the applicant and detected abrasions on his forehead and the left cheek-bone.
It appears that at some point the applicant was granted a State-appointed lawyer. On 20 April 2006 he refused his services. A lawyer of his own choosing represented him in the subsequent proceedings.
(b) Events of 5 July 2006
At 10 a.m. on 5 July 2006 the applicant was brought to the Drug Control office to study the case file. Officers Pl. and Pop. again urged him to confess. They allegedly handcuffed him and ordered him to sit down on the floor. The applicant refused. Then the policemen hit his face against the floor, kicked him and attempted to strangle him. Then investigator B. entered the office. It appears that at that point K., the applicant’s lawyer, arrived as scheduled. The applicant complained about the ill-treatment to the investigator but his complaint remained without a response.
On the same date in the evening the applicant was transferred to the remand prison. He complained to the prison authorities about the ill‑treatment and requested an immediate medical examination. According to the certificate of 28 January 2008 by the medical unit of the remand prison, on 5 July 2006 the remand facility doctor detected the following injuries on the applicant: low-intensity hyperaemia of the anterior surface of the neck, an abrasion on the right elbow, bruises of the left wrist joint and the left part of the chest and an abrasion on the left iliac region.
On 6 July 2006 an expert of the Izhevsk Forensic Medical Expert Centre examined the applicant and concluded that he had bruises on the neck and hands which did not cause harm to his health.
The applicant provides a written statement of Kh., his brother and also a co‑accused in the criminal proceedings against the applicant (see below) in support of his submissions. Kh. was transferred to the Drug Control office in order to study the case file on that date and saw the officers beating the applicant. He called for help, but to no avail. The applicant further submits written statements by two other co-accused, as well as K. (the applicant’s lawyer) and S. (the applicant’s brother’s lawyer), who saw the applicant at the investigator’s office and confirm that he had informed the investigator about the beatings in the presence of several witnesses.
2. The applicant’s attempts to institute criminal proceedings in connection with the alleged ill-treatment
(a) As regards the events of 15 March 2006
At some point the applicant complained about ill-treatment to the prosecutor’s office and requested to bring criminal proceedings against Pav.
On 18 May 2007 the prosecutor’s office of the Industrialnyy District of Izhevsk refused to open criminal proceedings in respect of the department officers, having found that the fact of the ill-treatment had not been established. According to the relevant decision, the police had sufficient evidence to prove the applicant’s having committed an offence, and therefore “nothing depended on [the applicant’s] confessions”. Pav. had informed the applicant that a confession constituted a mitigating circumstance but the applicant had refused to testify.
The applicant challenged the refusal in court under Article 125 of the Code of Criminal Procedure and requested that the case be examined in his presence.
On 23 January 2008 the Industrialnyy District Court of Izhevsk discontinued the examination of the applicant’s complaint, because Article 125 only concerned the “pre-trial procedure for examination of the complaints”, whilst the applicant had been convicted by the first‑instance court on 22 November 2007. The applicant was not present or represented at the hearing.
On 28 February 2008 the Supreme Court of the Republic of Udmurtiya endorsed the lower court’s reasoning and upheld the decision of 23 January 2008 on appeal. On 6 March 2008 the applicant, who was neither present nor represented, received a copy of the decision.
(b) As regards the events of 5 July 2006
At some point the applicant complained to the prosecutor’s office about the ill-treatment on 5 July 2006.
On 10 July 2006 the Head of remand prison IZ-18/1 reported the applicant’s injuries to the prosecutor’s office of the Industrialnyy District of Izhevsk. Medical documents of 5 July 2006, as well as the applicant’s own statement specifying that he had been beaten by the Drug Control officers, were enclosed.
On 5 October 2006 the investigator of the prosecutor’s office of the Industrialnyy District of Izhevsk decided not to open a criminal investigation into the applicant’s allegations. The decision referred to statements of officers Pl. and Pop. and information received from investigator B. They stated that the applicant’s behaviour on the impugned date had been violent and provocative, that he had suddenly started hitting his head against the wall and thus the officers had had to use force and handcuff him. B. stated that the applicant had not had visible injuries and had not raised any complaints on that date. The investigator of the prosecutor’s office concluded that the applicant had committed an administrative offence within the meaning of Article 19.3 of the Code of Administrative Offences by failing to obey an officer’s lawful order, and that the actions of the policemen had been lawful and justified.
At some point the applicant complained about the refusal to a higher prosecutor. In particular, he maintained that he had informed B. about the ill‑treatment already on 5 July 2006. He submitted that he had not been interviewed during the inquiry, and that the inquiry had not been impartial or objective.
On 14 May 2007 the prosecutor of the Industrialnyy District of Izhevsk upheld the decision of 5 October 2006, having found that the investigator had duly assessed all relevant evidence.
In the meantime, on 18 May 2007 the prosecutor’s office of the Industrialnyy District of Izhevsk by a single decision dealing with the applicant’s allegations about the events of 15 March and 5 July 2006 (see above) decided to refuse to bring a criminal case against the policemen having referred to the above inquiry’s materials without any further details.
On 22 May 2007 the applicant challenged the decision of 14 May 2007 at the higher-ranking prosecutor’s office.
On 31 May 2007 the prosecutor’s office of the Republic of Udmurtiya quashed the decision of 14 May 2007 as premature, assessed the inquiry as incomplete and sent the case for an additional inquiry.
On 13 June 2007 the investigator of the prosecutor’s office of the Industrialnyy District refused to bring criminal proceedings against the policemen on the same grounds as on 5 October 2006. In addition to the evidence listed above the investigator referred to the applicant’s submissions maintaining his initial account of the events, the applicant’s brother’s statement, as well as the police officers’ reports confirming that on 5 July 2006 they had had to use force against the applicant in view of his violent behaviour. The investigator concluded that the injuries detected on the applicant could have been caused as a result of the lawful use of force, and rejected the statement of the applicant’s brother as unreliable.
On 22 June 2007 the deputy head of the prosecutor’s office of the Industrialnyy District annulled the refusal to open the criminal proceedings and forwarded the case to the investigator for a further inquiry. He noted, in particular, that the remand prison officers had not been interviewed, and the internal inquiry files in respect of the Drug Control officers had not been included in the case file.
On 25 June 2007 the Drug Control Service informed the prosecutor’s office that an in-house inquiry in respect of the incident had not been conducted.
On 2 July 2007 the investigator of the prosecutor’s office of the Industrialnyy District again refused to open the criminal proceedings on the same grounds as on 13 June 2007. The respective decision referred to the above-mentioned items of evidence, as well as the statement of the remand prison doctor who reiterated the results of the applicant’s medical examination of 5 July 2007 and confirmed that the applicant had blamed the Drug Control officers for the injuries.
On 20 November 2007 the applicant requested the district prosecutor’s office to inform him of the results of the inquiry. Since no reply followed, on 18 January 2008 the applicant complained to the court about the prosecutors’ inaction. It appears that at some point after that date the applicant received the copies of the relevant documents. On 21 February 2008 the Industrialnyy District Court of Izhevsk disallowed his complaint since the matter had been resolved.
On 13 February 2008 challenged the decision of 2 July 2007 in court under Article 125 of the Code of Criminal Procedure.
On 15 April 2008 the same court rejected the appeal against the decision of 2 July 2007. According to the applicant, he stated during the hearing that his trial and the inquiry into the ill-treatment allegations concerned two distinct matters and therefore his complaint under Article 125 was to be examined in substance. The court rejected that argument and found that the allegations of ill-treatment had already been examined during the applicant’s trial by the first instance court (see below). The applicant had been able to challenge those findings on appeal within the criminal proceedings and had done so. In these circumstances, the District Court was unable to reassess the trial court’s findings. The court accordingly discontinued the proceedings in respect of the complaint.
The applicant was absent from the hearing. The investigator and the prosecutor were present and made submissions.
The applicant appealed and requested to examine the case in his presence.
On 17 June 2008 the Supreme Court of the Republic of Udmurtiya endorsed the first instance court’s findings and upheld the decision of 15 April 2008 on appeal. The court found that there were no grounds to allow the applicant’s motion for participation in the hearing. The applicant was not represented in the proceedings.
3. Criminal proceedings against the applicant
(a) Relevant information about the trial and the appeal proceedings
On 15 March 2006 the officers of the Drug Control Service, in course of a police operation, arrested the applicant and three other persons (U., Kh. and A., the co-accused) and seized about 96,7 kg of cannabis from the applicant, Kh. and A. The drugs seized had been packed and sealed in the presence of two lay witnesses. On the same date Ms N, an expert of the Drug Control Service, acting as a specialist, opened the package, conducted an examination («исследование») of the substance seized and confirmed that it was cannabis.
According to the applicant, on several occasions he requested to be provided an opportunity to put questions to expert N. during the trial, in order to clarify the circumstances of the examination of the substance seized on 15 March 2006.
On 15 October 2006 expert N. testified in court and commented on her report. On that date the applicant was removed from the court room for an unspecified reason. It is unclear whether the applicant’s counsel remained in the courtroom.
On 22 November 2007 the Pervomayskiy District Court of Izhevsk convicted the applicant of transfer of narcotic drugs in a particularly large quantity through customs border of the Russian Federation and preparation for the sale of drugs, committed by organized group, and found that the applicant had lead the group.
The applicant appealed, arguing, inter alia, that as a result of his unjustified removal from the court room he had been unable to put questions to N.
On 8 December 2008 the Supreme Court of the Republic of Udmurtiya upheld the conviction. The court did not address the argument about the inability to question N separately. The court found that there had not been any violations of the procedural law in the proceedings before the first instance court requiring the annulment of the judgment of 22 November 2007.
(b) Ill-treatment argument raised within the criminal proceedings against the applicant
The applicant submits that he complained about his ill-treatment to the trial court on several occasions, and Pervomayskiy District Court refused to examine his grievance with reference to the prosecutor office’s refusal to open criminal proceedings of 5 October 2006 (see above).
The applicant complained to the prosecutor’s office about the court’s failure to examine his complaint. By letters of 21 August and 14 September 2009 the prosecutor’s office of the Industrialnyy District of Izhevsk advised the applicant that his complaint was unfounded, since his arguments would be assessed by the court in the judgment.
By the judgment of 22 November 2007 (see above) the trial court found that the investigative activities in the case had been conducted in accordance with law and found no evidence of any pressure put on the co-accused.
In his appeal brief (see above) the applicant stated, inter alia, that the trial court failed to address the ill-treatment complaint either during the proceedings or in the judgment.
The appeal court endorsed the lower court’s findings, having found, in particular, that the complaints by the co-accused about several violations of the procedural law had been duly assessed and rejected by the first instance court.
(c) Subsequent developments
On 11 May 2012 the Zavyalovskiy District Court of the Undmurtiya Republic reviewed the sentence in order to bring it in compliance with the legislative amendments in force as of 7 December 2011 and reduced the sentence to eight years imprisonment. On 13 September 2012 the Supreme Court of the Republic of Udmurtiya upheld the decision.
4. The applicant’s detention in remand prison IZ-18/1
Between 17 March 2006 and 12 March 2008 the applicant was detained in remand centre IZ-18/1 of Izhevsk. He submits that throughout this period he was detained in 19 different cells.
In particular, from 17 to 30 March 2006 he was detained in cell no. 47 which measured thirty-three square metres, had fourteen sleeping places and accommodated up to forty detainees. From 30 March to 30 July 2006 he was detained in cell no. 67 measuring 16.5 square meters. The cell accommodated up to seventeen persons. The applicant submits that the conditions of detention in other cells were very similar. The number of inmates in other cells constantly exceeded the design capacity and was as follows:
- cell no. 69: 24.5 square metres, 10 beds, up to 16-22 persons accommodated;
- cell no. 232: 15 sq. m., 6 beds, up to 12-16 inmates, walls covered with metal sheets;
- cell no. 204: 33 sq. m., 14 beds, up to 22-28 inmates;
- cell no. 206: 15 sq. m., 8 beds, up to 12-16 inmates;
- cell no. 59: 22 sq. m., 10 beds, up to 15-20 inmates;
- cell no. 61: 16.5 sq. m., 6 beds, up to 10-14 inmates;
- cell no. 48: 15 sq. m., 6 beds, up to 10-13 inmates accommodated.
The cells did not have natural or mandatory ventilation. The toilet pan was not separated from the living area and was located in the immediate proximity from the dining table. There were one or two small windows in each cell which were covered with thick metal bars and did not let sufficient air in. It was extremely humid in the cells, stiflingly hot in summer and cold in winter. The electric light was on all the time. The cell was full of insects. The food was of poor quality. The detainees were taken for a forty‑minute walk once a day. They could take a shower once in 15 to 20 days. According to the applicant, on several occasions he allegedly had to share the cells with inmates suffering from tuberculosis and scabies, as well as with HIV-positive inmates. At some point the applicant was diagnosed with neurasthenia. He contracted scabies when in detention.
In support of his description of the conditions of detention the applicant provides written statements by his cellmates S. and T.
He submits that on several occasions he complained about the conditions of detention to the Head of the remand prison, as well as to the prosecutor within the criminal proceedings against him. No reply followed.
On 21 May and 4 June 2006 the applicant sent a “complaint about a violation of his rights guaranteed by the Convention” to the Supreme Court of the Republic of Udmurtiya and requested that the complaint be examined with his participation. He received no response.
On 12 March 2008 the applicant was transferred to the remand detention section of the correctional labour colony IK-1 of Yagul, the Zavyalovskiy District of the Republic of Udmurtiya.
COMPLAINTS
In the application form of 11 March 2008 the applicant complains under Article 3 about ill-treatment by the police officers on 15 March and 5 July 2006. He submits under Article 13 that he has not had effective remedies in respect of his ill-treatment complaint.
In the application form of 21 August 2008 the applicant complains, in particular, under Articles 3 and 13 about poor conditions of his detention in remand prison IZ-18/1 of Izhevsk and about the lack of the effective domestic remedy in respect of that complaint.
In the application form of 14 June 2009 the applicant complains under Article 6 §§ 1, 2 and 3 (a-d), in particular, that on 15 October 2007 he was unlawfully removed from the court room and was unable to question specialist N.
QUESTIONS TO THE PARTIES
1. When did the applicant complain to the authorities about the alleged ill‑treatment of 15 March 2006 for the first time? The parties are invited to provide a copy of the complaint.
2. What were the exact times that the applicant was actually apprehended by the officers of the Drug Control Service on 15 March 2006 (фактическое задержание) and brought to the Drug Control Service premises? Please submit the applicant’s detailed custody records for that date and for 16 March 2006, including an extract from the register of persons brought to a police station, the register of persons admitted to the temporary detention cell and the remand prison, etc.).
3. Was the applicant subjected to torture, inhuman or degrading treatment or punishment by police officers on 15 March and 5 July 2006, 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 on 15 March 2006:
(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, etc.) about his apprehension and, if so, when?
(iii) Was he given access to a lawyer and, if so, when? Was that a lawyer on duty invited by a police officer or an investigator, or a lawyer of the applicant’s choice? If given initially a State‑appointed lawyer, when did the applicant receive access to a lawyer of his choice?
(iv) Was he given access to a doctor and, if so, when? Was his medical examination conducted out of the hearing and out of sight of police officers and other non‑medical staff?
(v) What activities involving the applicant were conducted by the Drug Control Service on 15 March 2006, and during what periods? 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?
(b) As regards the events of 5 July 2006:
(i) What activities involving the applicant were conducted by the Drug Control Service on 5 July 2006, and during what periods? Please submit the applicant’s detailed custody records for that date, including an extract from the register of persons brought to the Drug Control Service premises, the register of the inmates’ transfers of the remand centre, documents on the activities involving the applicant on that date, etc.).
(ii) Was the applicant given access to a lawyer before and during each such activity?
(iii) When was the applicant granted access to a doctor on that date?
4. Having regard to the procedural protection from torture, inhuman or degrading treatment or punishment, was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention? Reference is being made to the applicant’s ill-treatment complaint in respect of the events of both 15 March and 5 July 2006. In particular:
(a) Were the investigators, who carried out the inquiry and the preliminary investigation into the applicant’s complaint of ill‑treatment, independent from the investigators who were responsible for investigating the criminal case against the applicant?
(b) What police officers from what police department(s) were involved in the inquiry and the preliminary investigation 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?
The parties are invited to comment separately on the inquiries in respect of the events of 15 March and 5 July 2006, and to submit all relevant documents.
5. Did the applicant have at his disposal effective domestic remedies for his complaints under Article 3 of the Convention about his alleged ill‑treatment, as required by Article 13 of the Convention?
6. Has there been a violation of Article 3 of the Convention on account of the applicant’s conditions of detention in remand centre FBU IZ-18 of Izhevsk? The Government are requested to comment on all aspects of the conditions of detention which the applicants complained of. The Government are further requested to produce documentary evidence including extracts from the population registers indicating the dimensions of the applicant’s cells and the number of inmates, layout plan of the cells indicating the placement of windows, toilets and furniture, day planning, colour photographs of the sanitary facilities, etc., as well as reports from supervising prosecutors concerning the conditions of detention in that facility.
7. Did the applicant have at his disposal an effective domestic remedy for the complaint under Article 3 concerning the conditions of detention on remand, as required by Article 13 of the Convention?
8. Given that the applicant was removed from the court room and thus was unable to question specialist N., was that situation compatible with the requirements of Article 6 §§ 1 and 3 (c) and (d) of the Convention (see, in so far as relevant, Idalov v. Russia [GC], no. 5826/03, §§ 169-82, 22 May 2012)? What were the reasons for the applicant’s removal from the court room? Was the applicant’s lawyer able to put questions to N. during the impugned hearing? The parties are invited to submit a copy of the trial record and other relevant documents.
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