FIRST SECTION
Application no. 46956/09
by Sergey Vladimirovich LYAPIN
against Russia
lodged on 27 August 2009
STATEMENT OF FACTS
THE FACTS
The applicant, Mr Sergey Vladimirovich Lyapin, is a Russian national who was born in 1964 and lives in Nizhniy Novgorod. 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
In the night of 25 April 2008 two police officers were patrolling an area near private parking garages in the settlement of Ilyinogorsk, Volodarskiy district of Nizhniy Novgorod region in connection with recently committed series of thefts from the garages.
At about 2 a.m. they stopped the applicant who had entered one of the garages. The applicant was allegedly looking for abandoned scrap metal. They requested him to follow them to a police station for identification check. According to the applicant, there was no disobedience or resistance on his part. According to the official inquiry (decision of 24 December 2009 of Dzerzhinsk Investigation Department of Investigation Committee at Nizhniy Novgorod Regional Prosecutor’s Office, hereinafter “Dzerzhinsk Investigation Committee”), the applicant attempted escape but was caught and knocked down face to the asphalt. He tried to break away and the police officers handcuffed him. On their way to the police station he shouted insults and threats to them.
At 3 a.m. records of the applicant’s administrative apprehension and at 3:30 a.m. records of an administrative offence were drawn up by police officers who found that the applicant had disobeyed lawful orders of police officers at the time of his apprehension.
According to the applicant, at the Ilyinogorsk police station (отделение милиции посёлка Ильиногорск) his hands were shackled behind his back. He was asked to confess to the thefts from garages which had been committed in Volodarskiy district of Nizhniy Novgorod region over the period February – March 2008. When he refused, he was tied up in a painful position, electric shocks were applied to his hands while water was poured on him, and blows were administered to his face and chest. He agreed to give self‑incriminating statements.
The applicant was brought before an investigator of the police department of the Volodarskiy district who examined him as a suspect in the presence of a lawyer. The applicant confessed to the thefts. He was taken to the garages where he showed the ones he had robbed. The stolen property, which was later identified by the victims, was found in his car and in his flat in Nizhniy Novgorod which were searched on the same day.
The applicant was brought before the Justice of Peace of Court Circuit no. 2 of Volodarskiy District of Nizhniy Novgorod region who sentenced him to a five days’ administrative arrest for disobedience to lawful orders of police officers in the course of his apprehension, to run from 2:30 a.m. of 25 April 2008.
The applicant spent the night in a detention facility for administrative offenders. On his arrival he was examined by an officer on duty who found no visible injuries on him. When questioned about his state of health, the applicant stated that he had no complaints.
B. The applicant’s injuries
1. Examination by ambulance doctor and at a traumatology centre
Next morning on 26 April 2008 he was visited by his wife and brother. After the visit he asked a guard to call an ambulance. The ambulance doctor recorded abrasions on the applicant’s face and back and oedema and hyperaemia of the applicant’s both hands. The doctor considered that the applicant had also ribs’ fracture. The applicant was released from the detention facility and taken to a traumatology centre in Dzerzhinsk where a doctor found bruises on the applicant’s face and chest and abrasions on his wrists. The applicant then left with his brother for Nizhniy Novgorod where he lived.
2. Diagnosis by hospital no. 40
On the same day he was admitted to hospital no. 40 in Nizhniy Novgorod for in-patient treatment.
The applicant lodged applications with the police and the prosecutor’s office in which he complained of police ill-treatment.
On 7 May 2008 the applicant was released from the hospital. According to the hospital records, he was diagnosed with brain concussion, “contusion of chest and neck area” and “thermic burns of hands”.
In a letter of 22 June 2009 to the applicant’s counsel the hospital stated that the diagnosis of “thermic burns of hands” had been given on the basis of lesions on the applicant’s hands of about 0.5 cm in diameter which looked more as “old thermic burns”.
3. Expert’s report of 30 May 2008
On 1 May 2008 the applicant was examined by a forensic medical expert – doctor Y. with 6 years’ experience from Forensic Medical Bureau of the Nizhniy Novgorod region ‑ as ordered by an investigator of Nizhniy Novgorod Avtozavodskoy Investigation Department of Investigation Committee at Nizhniy Novgorod Regional Prosecutor’s Office on 30 April 2008 within an inquiry conducted into the applicant’s allegations of ill‑treatment. The expert recorded the applicant’s injuries as follows:
A. two dotted lesions on the back of each hand of 0.2 cm in diameter; similar lesions on the red border of the lips on the right side, two lesions on the upper and one on the lower lip; a lesion on the back of the left hand on the border with the wrist joint of 1.5 to 0.7 centimetres. The above lesions had similar characteristics.
B. The applicant also had a circular bruise on his left wrist, bruises on each side of the face in the area of cheekbones and a bruise on the left side of his chest.
On 30 May 2008 the expert who examined the applicant on 1 May issued report no. 104-E in which he concluded that in view of the morphological characteristics of the injuries they could have been caused as alleged by the applicant in his complaint. The complaint, as described in the expert’s report, was that the police officers had beaten and kicked the applicant, tied his legs and administered electric current.
4. Opinion by a psychiatrist
On 16 July 2008 the applicant was seen by psychiatrist M. who concluded that he had a posttraumatic disorder. In October 2008 the applicant underwent in-patient treatment for that diagnosis. His condition improved.
5. Expert’s report of 23 July 2008
On 9 July 2008 The Committee Against Torture, a non‑governmental organisation, became the applicant’s legal representative.
On 14 July 2008 the applicant was examined by another expert from Forensic Medical Bureau of the Nizhniy Novgorod region – doctor S. with 19 years’ experience in forensic medicine, who was commissioned by the applicant’s representative. The applicant was found to have had several cicatrices on his hands. Having examined the applicant’s medical records from hospital no. 40 and relying on the description of the applicant’s injuries on 1 May 2008 by expert Y. (the report of 30 May 2008), expert S. concluded in report no. 2944-Д of 23 July 2008 that all of the applicant’s injuries, notably the lesions on his hands and lips, bruises on his left hand, face and the left side of his chest, and brain concussion, had been inflicted by a blunt object and could have been originated from blows by hands and feet. Their infliction on 25 April 2008 had not been excluded. They had caused short-term and therefore light health damage. Expert S. further stated that the diagnosis of “contusion of chest and neck area” and “thermic burns of hands” by hospital no. 40 had not been corroborated by objective data in the hospital records and, therefore, had not been taken into account in the assessment of the health damage. The expert then stated that it could not, on the basis of existing data, categorically be affirmed that the applicant had received electric injury. However, it could not be excluded that the lesions and cicatrices on the applicant’s hands could have been caused as a result of a contact with a current-carrying conductor. It did not appear possible to establish the time and mechanism of infliction of the injuries. However, taking into account the nature of the cicatrices, the infliction of the injuries on 25 April 2008 could not be excluded.
6. Opinion by doctor M.
On 11 October 2008 the applicant’s representative solicited an opinion from a doctor M. about the applicant’s possible electric injuries. Doctor M.’s opinion was similar to that of expert S.
7. Expert’s reports of 28 May 2009 and 25 November 2009
It follows from a decision of Dzerzhinsk Investigation Committee of 24 December 2009 that two more expert reports were prepared on 28 May (no. 2153-Д) and 25 November 2009 (no. 189/09). It appears that they essentially repeated the conclusions of the expert’s report of 23 July 2008 by finding that all of the applicant’s injuries, notably the lesions on his hands and lips, bruises on his left hand, face and the left side of his chest, and brain concussion, had been inflicted as a result of an impact with a blunt hard object. It was added that the circular bruise on the left wrist could have resulted from a handcuff. The opinion of 25 November 2009 stated that the diagnosis of “thermic burns of hands” had not been corroborated by objective morphological data typical for burn wounds caused by electric current. The lesions on the applicant’s hands, as described in the expert’s report of 30 May 2008, did not possess typical characteristics of burn wounds.
C. Criminal proceedings against the applicant
On 4 June 2008 the applicant was charged with seven episodes of thefts from garages. He refused from his earlier statements and denied his guilt. At the trial he pleaded guilty and asked the court to terminate the proceedings since he had compensated the damage to each of the victims. On 27 August 2008 the criminal proceedings against him were terminated on account of a reconciliation between the parties.
D. Inquiry into the alleged ill-treatment. Domestic courts’ review of Investigation Committee’s refusals to open criminal proceedings under Article 125 of the Code of Criminal Procedure
As a result of an inquiry into the applicant’s allegations an investigator of Dzerzhinsk Investigation Committee refused on 6 June 2008 to bring criminal proceedings. The applicant’s court appeal against that decision under Article 125 of the Code of Criminal Procedure was not examined on the ground that the issues complained of would be examined at the applicant’s trial on the theft charges.
After the termination of the criminal proceedings against the applicant, on 3 September 2008, the decision of 6 June 2008 was quashed by the deputy head of Dzerzhinsk Investigation Committee and an additional inquiry was ordered.
The subsequent numerous decisions taken by the investigators of Dzerzhinsk Investigation Committee in which they refused to open a criminal investigation into the applicant’s allegations were quashed either by their own supervisors or following court decisions finding, as a result of a review under Article 125 of the Code of Criminal Procedure, them unlawful or unfounded. The last decision not to bring criminal proceedings on account of the absence of corpus delicti in the actions of the police officers was taken of 24 December 2009 under Article 24 § 1 (2) of the Code of Criminal Procedure and was upheld by Dzerzhinsk Town Court and Nizhniy Novgorod Regional Court on 16 April 2010.
The authorities’ final conclusion was that the applicant’s injuries, notably the lesions on the face, the bruise on the chest and brain concussion could have resulted from the lawful use of physical force by the police officers in the course of the applicant’s apprehension. The abrasions on the wrists could have resulted from the lawful use of handcuffs at the time of his apprehension. The authorities noted that the allegation of torture by electric current had not been objectively confirmed by the applicant’s medical examination.
E. Appeal against the judgment in the administrative proceedings
In August 2008 Volodarskiy District Court of Nizhniy Novgorod region rejected the applicant’s request for extension of a missed time‑limit to appeal against the judgment of 25 April 2008 of the Justice of Peace of court circuit no. 2 of Volodarskiy District, by which he was sentenced to administrative arrest for disobedience to lawful orders of police officers.
COMPLAINTS
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.
He complains under Article 13 of the Convention in conjunction with Article 3 that the authorities failed to carry out effective investigation into his complaint of torture and that their refusal to institute criminal proceedings made it impossible for him to be granted victim status which could have entitled him to compensation.
QUESTIONS TO THE PARTIES
1. When the applicant was spotted by the police patrol on 25 April 2008, what were the legal grounds and reasons for requesting him to follow them to the police station? Was he conveyed to the police station and detained on suspicion of having committed a theft from garages?
2. Was the applicant subjected to torture, inhuman or degrading treatment or punishment by police officers on 25 April 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?
(b) What activities involving the applicant were conducted at the Ilyinogorsk police station by the Ministry of the Interior organs (органы Министерства Внутренних Дел) on 25 and 26 April 2008, 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 25 and 26 April 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 25 and 26 April 2008 by the investigating authority responsible for investigating the thefts from the garages, and during what periods? 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?
(d) Who examined the applicant at the detention facility for administrative offenders on 25 April 2008 and found no injuries on him and was this examination conducted out of the hearing and out of sight of police officers (please submit the relevant documents)?
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?
c) Where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention (see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999‑V). According to the domestic authorities responsible for the investigation in the present case, how were the injuries on the applicant’s hands (other than the injury which could have been caused by the handcuffs) caused? How long was the applicant handcuffed?
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 judgment of 25 April 2008 of the Justice of Peace of court circuit no. 2 of Volodarskiy District of Nizhniy Novgorod region by which the applicant was sentenced to five days’ administrative arrest for disobedience to lawful orders of police officers and the court records of the hearing (протокол судебного заседания) on 25 April 2008 before the Justice of Peace of court circuit no. 2 of Volodarskiy District;
(b) Nizhniy Novgorod Regional Forensic Medical Bureau experts’ reports (акты судебно-медицинского освидетельствования) no. 2944-Д of 23 July 2008 and no. 2153-Д of 28 May 2009;
(c) expert’s opinion of 25 November 2009 (no. 189/09), as referred to in the decision of 24 December 2009 of Dzerzhinsk Investigation Department of Investigation Committee at Nizhniy Novgorod Regional Prosecutor’s Office;
(d) the relevant extracts in respect of the applicant from the Register of visitors or persons brought to the Ilyinogorsk police station for 25 and 26 April 2008;
(e) decisions (concerning Mr Ryzhov and Mr Vasilyev) to initiate criminal proceedings against the applicant of 27 February 2008 (copies submitted by the applicant, mentioned as documents nos. 11 and 20 in the list of documents enclosed to the application form, are of poor quality);
(f) the statement by Mr Utkin (a copy submitted by the applicant, mentioned as document no. 141 in the list of documents enclosed to the application form, is of poor quality).
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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