Communicated on 28 June 2017
THIRD SECTION
Application no 25238/08
Yerkezhan Toleshevich SARSEMBAYEV against Russia
and 2 other applications
(see list appended)
STATEMENT OF FACTS
The applicants are three 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.
A. The circumstances of the cases
1. Facts common to all applications
Between 2007 and 2013 the applicants participated in different types of public assemblies (a meeting, a march and a picket) in three different towns of Russia. Mr Monakhov (application no. 19560/16) and Mr Silverstov (application no. 33300/16) were arrested by the police in the course of the public assemblies, Mr Sarsembayev (application no. 25238/08) was arrested several hours after the end of the public assembly.
The police officers used physical force and/or special means (rubber truncheons) during the applicants’ arrest. The applicants did not resist the arrest.
The applicants unsuccessfully complained about excessive use of force to the domestic authorities. In all cases, the prosecutors or investigators refused to institute criminal proceedings and their refusals were subsequently upheld by the domestic courts.
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.
2. Facts specific to the application no. 25238/08
On 10 October 2007 the applicant notified the Kazan Town Administration of the intention of a group of residents of dormitories in Kazan to organise a picket on 18 October 2007 between 9 and 11.30 a.m. at Svoboda Square near the Cabinet of Ministers of the Republic of Tatarstan. Around thirty people were expected to attend. The aim of the picket was to defend constitutional and housing rights.
On 12 October 2007 the Kazan Town Administration refused to agree to the picket at the proposed location due to the heavy traffic of the public transport and parking of the government vehicles that would put in danger the security of the participants of the picket. The Administration suggested that the picket be held inside the park at Svoboda Square or on the other side of Svoboda Square in front of the theatre and informed the applicant about a representative of the Administration who would be present at the picket.
On an unspecified date the applicant notified the authorities about his disagreement to change the location of the picket.
On 18 October between 9 and 11.30 a.m. the picket was held on the pavement close to Svoboda Square and the Cabinet of Ministers of the Republic of Tatarstan in front of the Constitutional Court of the Republic of Tatarstan. The police officers and public authorities present at the picket recommended the participants to disperse, otherwise they would be arrested and fined because the picket was being held close to the Constitutional Court of the Republic of Tatarstan.
The picket was not dispersed and nobody was arrested in the course of the picket.
Around four hours after the end of the picket the applicant was arrested, taken to the police department, charged with administrative offences, then released and taken to the hospital.
On 12 November 2007 the Justice of the Peace of the 4th Court Circuit of the Vakhitovskiy District of Kazan convicted the applicant of breach of the established procedure for conducting public assemblies (Art. 20.2 § 2 of the Code of Administrative Offences), because the applicant had held a picket in front of the Constitutional Court of the Republic of Tatarstan that was prohibited by law. The applicant was sentenced to a fine of 1,000 Russian roubles (RUB) (about 28 euros (EUR)).
On 23 November 2007 the Vakhitovskiy District Court of Kazan upheld that judgment on appeal.
On 16 November 2007 the Justice of the Peace of the 5th Court Circuit of the Vakhitovskiy District of Kazan convicted the applicant of disobeying a lawful order of the police (Art. 19.3 § 1 of the Code of Administrative Offences).
On 30 November 2007 the Vakhitovskiy District Court of Kazan upheld that judgment on appeal.
On 11 January 2008 the Supreme Court of the Republic of Tatarstan quashed the judgments of 16 November 2007 and 30 November 2007 and discontinued the administrative proceedings against the applicant. The Supreme Court held that the records of the applicant’s administrative offence had not contained specific reasons for the arrest, that those reasons had not been established in the course of the administrative proceeding, that the records of the applicant’s administrative arrest had been missing from the case-file, thus there had been no necessity to conduct an administrative arrest of the applicant.
On 26 June 2008 the Novo-Savinovskiy District Court of Kazan awarded the applicant RUB 10,000 (about EUR 272) compensation for non‑pecuniary damage for the applicant’s unlawful administrative arrest, escort and administrative prosecution.
On 31 July 2008 the Supreme Court of the Republic of Tatarstan upheld that judgment of the District Court on appeal.
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 is to call an ambulance or take a person to a nearby hospital;
- a police officer is to 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.
3. Procedure for the conduct of public assemblies, liability for breaches committed in the course of public assemblies and administrative arrest
See Novikova and Others v. Russia, nos. 25501/07, 57569/11, 80153/12, 5790/13 and 35015/13, §§ 49-84, 26 April 2016, and Lashmankin and Others v. Russia, nos. 57818/09 and 14 others, §§ 216-312, 7 February 2017.
COMPLAINTS
The applicants complain under Article 3 of the Convention about the excessive force used in the course of their arrests and about the lack of an effective investigation in this respect. They also complain under Article 13 of the Convention that they did not have an effective domestic remedy at their disposal.
Mr Sarsembayev (application no. 25238/08) in addition complains under Articles 11 of the Convention that the restrictions put on him by the authorities (the change to the event venue and his prosecution for an administrative offence) were unlawful and unjustified. Moreover, he complains under Article 5 § 1 of the Convention that his administrative arrest and subsequent detention were unlawful.
COMMON QUESTIONS TO THE PARTIES
1. Regard being had to the medical certificates submitted by the applicants (for more details see the Appendix), were they subjected to ill‑treatment, in breach of Article 3 of the Convention, at the hands of police?
As regards the Government’s burden of proof
(a) have the domestic 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 v. France [GC], no. 25803/94, § 87, ECHR 1999‑V, and Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000‑VII)? 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 upon his arrest, 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, if any.
As regards the necessity and the proportionality of the force used
(b) was the recourse to physical force made strictly necessary by the applicants’ own conduct (see Balçık and Others v. Turkey, no. 25/02, §§ 32‑33, 29 November 2007, Saya and Others v. Turkey, no. 4327/02, § 21, 7 October 2008, Muradova v. Azerbaijan, no. 22684/05, § 133, 2 April 2009, Rizvanov v. Azerbaijan, no. 31805/06, § 49, 17 April 2012)?
- did the State agents have prior information about the public assemblies to be held or were otherwise informed about them (see Balçık and Others v. Turkey, no. 25/02, §§ 32-33, 29 November 2007, Saya and Others v. Turkey, no. 4327/02, § 21, 7 October 2008)?
- did the participants of the public assemblies including the applicants present a danger to public order or engage in act of violence? If so, please provide the details of the participants’ and applicants’ behaviour (see Balçık and Others v. Turkey, no. 25/02, §§ 32-33, 29 November 2007, Saya and Others v. Turkey, no. 4327/02, § 21, 7 October 2008, Muradova v. Azerbaijan, no. 22684/05, § 133, 2 April 2009).
2. Did the authorities carry out an effective official investigation into the applicants’ allegations of ill-treatment in the course of their arrest and in police custody as required by Article 3 of the Convention (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000‑IV, Lyapin v. Russia, no. 46956/09, §§ 125-40, 24 July 2014)?
3. 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
Application no. 25238/08
1. Did the authorities’ suggestion to change the location of the picket of 18 October 2007, the applicants’ arrest and the administrative proceedings against him interfere with his rights under Article 11 of the Convention? If so, was the interference prescribed by law and necessary in terms of Article 11 § 2 of the Convention?
2. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, were the applicant’s arrest on 18 October 2007 and the subsequent detention carried out in accordance with a procedure prescribed by law?
APPENDIX
No.
Application
no.
Lodged on
Applicant name
date of birth
place of residence
nationality
represented by
Details about arrest, location of the detention place,
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
(reasons for refusals)
25238/08
27/03/2008
Yerkezhan Toleshevich SARSEMBAYEV
14/03/1968
Kazan
Russian
18/10/2007
(at 3.45 p.m.)
Arrest outdoors by people in plain clothes some 4 hours after the end of the picket in another part of the city
Police department “Yapeyeva”, Vakhitovskiy District, Kazan
(ОМ «Япеева» Вахитовского РУВД г. Казани)
Released from the police department on the same day
at around
5.30-6.30 p.m. and brought to the hospital
18/10/2007
18/10/2007
Medical certificate of the ambulance
20/10/2007
Certificate of the hospital
23/11/2007
Medical examination act no 8037
(examination conducted on the basis of the documents)
20/10/2007
First complaint to the investigative committee of the Prosecutor’s office of the Republic of Tatarstan
02/04/2008
Latest refusal to open a criminal case
29/04/2008
Supreme Court of the Republic of Tatarstan
(the physical force was used to overcome the applicant’s resistance and to escort him to the police department, it was lawful, the force used was not excessive)
19560/16
05/04/2016
Dmitriy Ivanovich MONAKHOV
01/03/1983
Nerekhta
Russian
18/07/2013
(at around 7 p.m.)
Arrest on the street
in the course a manifestation
Police bus on Tverskaya street, Moscow
Released from the police bus on the same day
No information
18/07/2013
Photos taken in the police bus
18/07/2013
Certificate of the hospital
19/07/2013
Certificate of the hospital
14/08/2013
Forensic medical examination report no. 5562м/6679
(examination conducted on the basis of the documents)
25/07/2013
First complaint to the investigative committee
27/03/2015
Latest refusal to open a criminal case
25/02/2016
Moscow City Court
(the physical force and special means (a rubber truncheon) were used to overcome the applicant’s resistance, but the police officers did not injure the applicant, the applicant tried to break away, slipped over the bus stairs and could have injured himself)
33300/16
03/06/2016
Oleg Aleksandrovich SILVERSTOV
11/11/1965
Nizhniy Novgorod
Russian
10/03/2012
(at around 3 p.m.)
Arrest on the street
In the course of a march
Police bus
Police station no. 5, Nizhniy Novgorod (ОП № 5 УМВД России по г. Н.Новгород)
Released from the police department on the same day and brought to the hospital
10/03/2012
(no force was used)
10/03/2012
Certificate of the hospital
(22/03/2012)
04/05/2012
Forensic medical examination report no. 1048/2137 Д
(examination conducted on the basis of the documents)
13/08/2012
Forensic medical examination report no. 1927‑ДОП/131доп Д
(examination conducted on the basis of the documents)
02/09/2013
Forensic medical
examination report no. 2156‑доп/178-доп
(examination conducted on the basis of the documents)
13/03/2012
First complaint to the investigative committee
09/04/2015
Latest refusal to open a criminal case
07/12/2015
Nizhniy Novgorod Regional Court
(the physical force was used in accordance with the law to bring the applicant to the police bus, besides it was established that the applicant could have slipped over the bus stairs and injured himself)
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