Communicated on 13 July 2017
THIRD SECTION
Application no 29627/10
Mikhail Nikolayevich KOVAL against Russia
and 4 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 2007 and 2015 the applicants were arrested by different law‑enforcement authorities, prosecuted for and subsequently convicted of different types of criminal offences, except for Mr Kolykhalov (application no. 20949/11), criminal proceedings against whom were terminated. In all other cases, the confession statements made by the applicants in police custody were used for their conviction. According to the applicants, these confessions were obtained under duress.
In all cases, medical certificates drawn up during the applicants’ police custody demonstrated that they sustained injuries of different types and severity (for more details see the Appendix). According to the applicants, they were ill-treated by police. Mr Koval (application no. 29627/10) and Mr Yanchenko (application no. 31414/10) in addition indicated that they had already been subjected to ill-treatment in the course of their respective arrests.
In all cases the applicants’ complaints about the police ill-treatment were rejected on the ground that their injuries were caused to them only in the course of their arrests and in response to their resistance.
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 an arrest,
- a police officer shall ensure that a person injured receives first aid,
- where the physical force used results in damage to health, and where 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 a person arrested and taken to the police custody has visible wounds, injuries or is in a state that requires urgent medical intervention;
- a police officer shall call an ambulance or take a person to a nearby hospital;
- a police officer shall 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 shall receive a criminal complaint from the person, if not, then he shall draw up a reasoned report and register it in the Register of the criminal complaints.
The instruction repeated the rules that were in force before its adoption.
COMPLAINTS
All applicants complain under Article 3 of the Convention that they had been ill-treated in police custody with a view of extracting confessions or other statements and that no effective investigation had taken place in respect of their allegations of ill-treatment. Mr Koval (application no. 29627/10) and Mr Yanchenko (application no. 31414/10) complain that they had also been ill-treated in the course of their arrests. They also complained under Article 13 of the lack of an effective remedy.
Other complaints raised by the applicants are summarised in the Appendix.
COMMON QUESTIONS TO THE PARTIES
1. Having regard to the injuries found on the applicants after the time spent by them in State custody, were the applicants subjected to torture, or inhuman or degrading treatment, in breach of Article 3 of the Convention (see, among other authorities, Razzakov v. Russia, no. 57519/09, 5 February 2015; Gorshchuk v. Russia, no. 31316/09, 6 October 2015; Turbylev v. Russia, no. 4722/09, 6 October 2015; Fartushin v. Russia, no. 38887/09, 8 October 2015; Aleksandr Andreyev v. Russia, no. 2281/06, 23 February 2016; and Leonid Petrov v. Russia, no. 52783/08, 11 October 2016)?
2. Have the authorities discharged their burden of proof by providing a plausible or satisfactory and convincing explanation of how the applicants’ injuries were caused (see Selmouni, v. France [GC], no. 25803/94, § 87, ECHR 1999‑V; Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000‑VII; and Bouyid v. Belgium [GC], no. 23380/09, § 83 and further, ECHR 2015)? 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, was this obligation 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.
3. Was the recourse to physical force 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; and Minikayev v. Russia, no. 630/08, §§ 59-60, 5 January 2016)?
4. Did the authorities carry out an effective official investigation into the applicants’ allegations of ill-treatment in the course of their arrest as required by Article 3 of the Convention (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000‑IV, and Lyapin v. Russia, no. 46956/09, §§ 125-40, 24 July 2014)? In particular, 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)?
5. 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 QUESTIONS
1. Applications nos. 29627/10, 31414/10, 59280/10, 25694/12
Having regard to the use of evidence in the applicants’ criminal trials, which was allegedly obtained as a result of the applicants’ ill-treatment by police officers, did the applicants have a fair hearing in the determination of the criminal charges against them, in accordance with Article 6 § 1 of the Convention?
2. Application no. 29627/10
1. Was the applicant’s detention between 14 and 15 May 2009 “in accordance with a procedure prescribed by law”, as required by Article 5 § 1 of the Convention (see Rakhimberdiyev v. Russia, no. 47837/06, §§ 35‑36, 18 September 2014)?
2. Did the applicant have an enforceable right to compensation for his unlawful detention as required by Article 5 § 5 of the Convention and was that right “practical and effective” (see Cumber v. the United Kindgom, no. 28779/95, Commission decision of 27 November 1996, Abashev v. Russia, no. 9096/09, § 42, 27 June 2013 )?
3. Application no. 20949/11
Was the length of the applicant’s pre-trial detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention (see Dirdizov v. Russia, no. 41461/10, §§ 108-11, 27 November 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
(first complaint, latest refusal to open a criminal case and reasons for refusal,
the latest domestic courts’ decision
under Art. 125 CCP and reasoning)
Applicants’ trial and appeal courts’ judgments and the results of the examination of their allegations of ill‑treatment, if any
Additional complaints
29627/10
07/04/2010
Mikhail Nikolayevich KOVAL
17/08/1974
Engels
Ouzbekistan
14/05/2009
(at around
6.10 p.m.)
Arrest at his flat by three police officers
Police station no. 3 of Engels, Saratov Region (отдел милиции № 3, г Энгельс, Саратовская область)
15/05/2009
(11.20 a.m.)
Arrest record
drawn up
No information about report on the use of force
No information
14/05/2009
Medical examination report
no. 1986
15/05/2009
Certificate of the traumatology centre
(28/06/2009)
15/05/2009
IVS register
no. 588, v. 1
18/05/2009
SIZO register
(01/09/2009)
12/08/2009
Forensic medical examination
no. 1789
06/08/2009
First complaint to the investigative committee
03/06/2010
Last refusal to open a criminal case
(police officers stated that they had not used physical force against the applicant, only handcuffed him, the applicant had injuries when was questioned by the investigator, the applicant explained to the investigator that he harmed himself accidently, that the police officers did not beat him, the police officers used wrestling techniques and handcuffed the applicant lawfully and absolutely reasonably as the criminal case was opened against the applicant and the applicant was arrested on suspicion of having committed a grave offence, no force was used against the applicant after his arrest, no mention about the report on the use of force)
08/12/2010
Saratov Regional Court
(the appeal court refused to examine the applicant’s claim, as the applicant had already been convicted, the applicant’s constitutional rights were not violated as he had a possibility to challenge his conviction by means of supervisory review)
11/11/2009
Engelsskiy District Court of the Saratov Region
16/02/2010
Saratov Regional Court
16/07/2012
Presidium of the Saratov Regional Court
Convicted of robbery
(the applicant did not resist the arrest but tried to run away, thus the police officers used wrestling techniques and handcuffed the applicant, the applicant’s allegations of ill‑treatment were examined by conducting an inquiry and a refusal to open a criminal case was delivered)
Art. 6 § 1 unfair trial on account of the use of his confession obtained under duress
Art. 5 §§ 1 and 5 on account of the applicant’s unrecorded detention between 6.10 p.m. on 14/05/2009 and 11.20 on 15/05/2009 after his de facto apprehension and the impossibility to claim compensation even after the authorities acknowledged the unlawfulness of his detention during this period
31414/10
23/04/2010
Boris Nikolayevich YANCHENKO
20/08/1976
Raisino
Russian
14/05/2009
(at around
1 – 2 p.m.)
Arrest outdoors
Police station no. 3 of Engels, Saratov Region (отдел милиции № 3, г. Энгельс, Саратовская область)
No information about report on the use of force
No information
15/05/2009
Certificate of the traumatology centre
(28/06/2009)
15/05/2009
IVS register
no. 588, v. 1
19/05/2009
SIZO register
(01/09/2009)
12/08/2009
Forensic medical examination no. 1788
May 2009
First complaint to the investigative committee
03/06/2010
Last refusal to open a criminal case
(the applicant had injuries when was questioned by the investigator, he applicant explained to the investigator that he harmed himself accidently, that the police officers did not beat him, the police officers used wrestling techniques and handcuffed the applicant lawfully and absolutely reasonably as the criminal case was opened against the applicant and the applicant was arrested on suspicion of having committed a grave offence, no force was used against the applicant after his arrest, no mention about the report on the use of force)
03/02/2010
Saratov Regional Court
(the domestic courts refused to examine the applicant’s claim, as the applicant had already been convicted, the applicant’s constitutional rights were not violated as he had a possibility to challenge his conviction on appeal)
11/11/2009
Engelsskiy District Court
of the Saratov Region
16/02/2010
Saratov Regional Court
Convicted of robbery
(the applicant did not resist the arrest but tried to run away, thus the police officers used wrestling techniques and handcuffed the applicant, the applicant’s allegations of ill‑treatment were examined by conducting an inquiry and a refusal to open a criminal case was delivered)
Art. 6 § 1 unfair trial on account of the use of his confession obtained under duress
59280/10
03/09/2010
Sergey Aleksandrovich PISKUNOV
17/01/1981
Bratsk
Russian
26/06/2009
Arrest outdoors
Police department, Bratsk, Irkutsk Region (СО по г. Брастку, Иркутская область)
No information
29/06/2009
Medical examination act
27/07/2010
Written statement of the applicant’s co‑defendant Mr B.
25/01/2010
First complaint to the trial judge
08/02/2010
Refusal to open a criminal case
(the police officers had information that the applicant and his co-defendant were armed, they used the force against the applicant (wrestling techniques, shooting in the air, handcuffs) to overcome his resistance)
10/11/2010
Irkutsk Regional Court
(the domestic courts refused to examine the applicant’s claim as the applicant’s conviction came into force, the trial courts of both levels examined the applicant’s claim of ill-treatment and the refusal to open a criminal fact and found no grounds for the alleged ill-treatment)
17/03/2010
Irkutsk Regional Court
22/07/2010
Supreme Court of Russia
Convicted of banditry and multiple murders
(the domestic courts excluded the possibility of the applicant’s forced self‑incrimination during his questioning as a suspect, as the refusal to open a criminal case into the alleged ill-treatment was delivered, the applicant was questioned several times in the presence of the lawyer whose presence objectively eliminated any possibility of duress, the investigator and the police officers questioned during the trial testified that they had not exercised any duress in respect of the applicant)
Art. 6 § 1 unfair trial on account of the use of his confession obtained under duress
20949/11
21/02/2011
Konstantin Vladimirovich KOLYKHALOV
15/01/1990
(a minor, 17 years old at the time of events)
Kemerovo
Russian
09/10/2007
(evening time)
Arrest outdoors by the police officers of the organised crime unit of the Kemerovo Region (УБОП ГУВД по Кемеровской области)
Organised crime unit of the Kemerovo Region (УБОП ГУВД по Кемеровской области)
10/10/2007
(after 10 a.m.)
Released
No information
11/10/2007
Forensic medical examination act
24/10/2007
First complaint to the police
12/08/2010
The latest refusal to open a criminal case
(the physical force was used lawfully and was justified as the applicant was arrested at the crime scene, tried to run away and resisted the arrest, the force was used to arrest the applicant and to escort him to the police station, the police officers indeed hit the applicant, but they did not intend to injure the applicant on purpose, they did not cause manifestly excessive damage to the applicant’s health, no mention about the report on the use of force)
09/06/2011
Kemerovo Regional Court
(the court referred to and repeated the reasoning of the refusal to open a criminal case)
28/05/2013
Kemerovo Regional Court
Acquitted of the charges of extortion
11/02/2014
Supreme Court of Russia
Quashed the judgment and remitted the case for a new examination, no restraint measure was chosen in respect of the applicant.
30/12/2014, 17/02/2015
By the investigator’s decision criminal prosecution of the applicant was terminated
Art. 5 § 3 on account of the excessive length of the applicant’s pre‑trial detention between 13/01/2008 and 28/05/2013, i.e. 5 years,
4 months and 15 days
25694/12
05/03/2012
Konstantin Dmitriyevich TYUGULEV
07/08/1979
Salavat
Russian
22/02/2011
(at 8 – 9 p.m.)
Arrested outdoors
Police department, Saratov
(отдел милиции
г. Саратов)
No information
25/02/2011
IVS register
no. 123
24/02/2011
First complaint to judge deciding on the applicant’s detention order
01/07/2011
Refusal to open a criminal case
(the applicant resisted the arrest and tried to run away, thus the police officers used wrestling techniques, i.e. twist of the applicant’s hands behind his back, so the police officers did not exceed their powers)
10/08/2012
Opening of a criminal investigation
21/06/2013
The applicant was given a victim status
The investigation was ongoing when the applicant lodged his application
11/07/2011
Leninskiy District Court of Saratov
01/12/2011
Saratov Regional Court
Convicted of robbery
(the investigative actions with the applicant were held in accordance with law, he was questioned in the presence of a lawyer, inquiry into the alleged fact of ill‑treatment was conducted and the refusal to open a criminal case was delivered, the police officers were questioned at trial, they refused use of physical force against the applicant, the applicant was not injured by the police officers but sustained his injuries in some other circumstances)
Art. 6 § 1 unfair trial on account of the use of his confession obtained under duress
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