Communicated on 29 June 2015
FIRST SECTION
Application no. 40417/07
Aleksandr Ivanovich KONKOV
against Russia
lodged on 6 September 2007
STATEMENT OF FACTS
The applicant, Mr Aleksandr Ivanovich Konkov, is a Russian national, who was born in 1977 and lives in Moscow.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
Around 12.45 a.m. on 3 January 2006 four police officers arrested the applicant in his flat and took him away. Allegedly, his family members were told that he would be taken to Lyublino police station. However, instead, he was brought to the Department of Murder and Banditry Investigations.
The applicant was not informed of his procedural status and was not informed of his procedural rights, including a right to legal assistance. He was interviewed by the same officers in room no. 304 in relation to the murder of Forbes editor-in-chief, Mr Khlebnikov. According to the officers, the applicant’s employer was responsible for the murder. The applicant stated that he had no pertinent information to provide.
Allegedly, the officers beat the applicant on the head with some notepad and piles of papers.
The applicant was then interviewed by investigator P. of the City Prosecutors’ Office and then by investigator D. of the same Office. The latter accused the applicant of an attempted murder against P.
After this, the applicant was taken back to room no. 304, where the police officers beat him on the head with piles of paper and their fists. One of the officers used the back part of a gun to inflict several blows to the applicant’s shoulders and neck. Another officer used an electric shock device against the applicant’s legs, hands and head. They placed a plastic bag on the applicant’s head, put him down on the floor and started to suffocate him. To prevent the applicant from moving, they pinched him with a sharp object (possibly, a knife) into his stomach and back. They then again applied an electric shock to the applicant’s head, which became wet. The applicant could not stand the pain and fainted on several occasions.
The applicant was then taken to D.’s office and made a written statement as a witness. He was not assisted by counsel.
The applicant was released after midnight. He stopped a car that took him to his home. During the same night he was taken to the trauma unit of a local hospital. In view of his condition, he was admitted for in-patient treatment in hospital no. 68. The staff of the hospital made the following record: a brain contusion and bruises.
The applicant sought institution of criminal proceedings against the police officers and the investigators on account of unlawful arrest, deprivation of liberty and torture. He referred to Articles 117 (torture), 286 (abuse of power), 302 (compulsion to testify) and 303 (forgery of evidence) of the Criminal Code.
On 4 January 2006 an inquiry was assigned to an investigator of Kuzminskiy inter-district prosecutor’s office. The investigator interviewed the applicant.
On 10 January 2006 the applicant was interviewed by another public official.
On 11 January 2006 a forensic medical expert refused to issue a report, the applicant still being in the hospital.
On 20 January 2006 the applicant was released from the hospital.
On 3 March 2006, at his own initiative, the applicant underwent an examination by a forensic expert. The expert concluded that the applicant had sustained, inter alia, a brain contusion; a bruise on his left eye; multiple bruises on his shoulder.
The applicant’s wife, investigators D. and P., several other public officials who had been in the building of the Department of Murder and Banditry Investigations on 3 January 2006, made written statements for the purpose of the inquiry.
On 10 March 2006 Moscow deputy prosecutor issued a decision to refuse prosecution of the public officials due to the absence of any corpus delicti of the crime under Article 286 of the Criminal Code (abuse of power).
The applicant sought judicial review of the above refusal to prosecute. He argued that the refusal contained no comparative assessment of the evidence, including the applicant’s own and the officials’ testimonies; no adequate assessment of the medical evidence such as the report of 3 March 2006, including a plausible explanation of the origin of the applicant’s injuries. On 8 February 2007 the Zamoskvoretskiy District Court of Moscow upheld the refusal.
The applicant appealed. On 19 March 2007 the Moscow City Court upheld the judgment.
B. Relevant domestic law
Article 188 of the Code of Criminal Procedure (CCrP) provides that a witness may be called for an interview by way of summonses, which should indicate the date, time and place of the interview, as well as the consequences attached to the failure to attend. The witness that has defaulted without any valid excuse, may be brought before the relevant public official or a court (see also Article 56 of the CCrP). This measure is defined as the non-voluntary convoying of a person to appear before an inquirer, investigator or a court (Article 113 of the CCrP). This measure should be implemented on the basis of a written order by the relevant public authority.
COMPLAINTS
The applicant complains under Article 3 of the Convention that he was tortured and that the inquiry was ineffective.
The applicant also contends under Article 5 of the Convention that he was unlawfully deprived of liberty between 12.45 a.m. on 3 January 2006 to 1 a.m. on 4 January 2006.
QUESTIONS TO THE PARTIES
1.1. Has the applicant been subjected to torture or inhuman or degrading treatment, in breach of Article 3 of the Convention?
The parties are requested to make submissions, inter alia, on the following points:
(a) Was the applicant informed of his rights? If so, when, and what rights was he informed about? What was the applicant’s procedural status?
(b) Was he given the possibility of informing a family member, friend, etc. about his actual location and, if so, when?
(c) Was he given access to a lawyer and, if so, when?
1.2. Was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention? In particular:
(a) Was the effectiveness of the inquiry undermined in the absence of a decision to initiate criminal proceedings (возбуждение уголовного дела) in reply to the applicant’s allegations (see Lyapin v. Russia, no. 46956/09, §§ 129-140, 24 July 2014)?
(b) Was the effectiveness of the inquiry adversely affected by narrowing its scope to the crime under Article 286 of the Criminal Code rather than under its other provision directly relating to causing bodily harm, for instance? Did the authorities make any findings concerning the allegedly unlawful deprivation of liberty?
(c) Which officials from which public authorities were involved in the inquiry (доследственная проверка) into the applicant’s complaints of ill-treatment? Was there any hierarchical, logistical, organisational or another interdependence between these officials and the persons who were allegedly implicated in the applicant’s torture? What operational and other activities did the officials carry out in the course of the above inquiry?
(d) Was the applicant given a possibility to participate effectively in the inquiry (for instance by lodging motions, obtaining copies of procedural decisions, having access to the inquiry file at some point in time)?
(e) Did the authorities provide a plausible explanation for the applicant’s injuries?
Having regard to Article 38 of the Convention, the respondent Government are requested to submit a copy of the file relating to the inquiry in relation to the applicant’s allegations of ill-treatment and unlawful deprivation of liberty.
2. Did the “deprivation of liberty” fall within at least one of the subparagraphs under Article 5 § 1 of the Convention? Was there a violation of this Article?
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