Communicated on 4 December 2018
THIRD SECTION
Application no. 39619/09
Konstantin Viktorovich ISHEVSKIY against Russia
and 5 others – see appended list
STATEMENT OF FACTS
The applicants complained under Articles 3 and 13 of the Convention that they had been subjected to ill-treatment by State officials and that the State failed to conduct an effective domestic investigation into those incidents. All of the applicants submitted that their attempts to initiate criminal investigation in connection with the incidents proved futile.
The relevant details regarding the applicants’ allegations and their version of factual circumstances are reflected in the attached appendices. The information regarding the alleged breach of the substantive aspect of Article 3 in contained in Appendix no. 1. The reaction of the domestic authorities to the applicants’ complaints is reflected in Appendix no. 2.
The applicants also raised other complaints, subject of well-established case-law of the Court (see Appendix no. 3).
The table of cases:
No.
Application number
Introduction date
Name of the applicant(s); date of birth
place of residence
Represented by
1.
39619/09
19/06/2009
Konstantin Viktorovich ISHEVSKIY
23/08/1977
Irkutsk
2.
24534/10
23/03/2010
Sergey Ivanovich ZAKALYAYEV
29/04/1959
Bagayevskaya
3.
53617/10
20/07/2010
Yevgeniy Vladimirovich TROFIMOV
02/08/1973
Almetyevsk
4.
17241/12
29/02/2012
Manvel Amikovich SAARYAN
21/03/1987
Novorossiysk
Vladimir Vladimirovich PETENKO
05/12/1976
Dvubratskiy
Ruzanna Rafaelovna GALUSTYANTS
5.
70526/13
14/10/2013
Denis Nikolayevich PRUDNIKOV
31/05/1981
Orel
Irina Mikhaylovna PRUDNIKOVA
6.
71651/13
22/10/2013
Aleksandr Ivanovich MICHURIN
27/11/1975
Sorda
QUESTIONS
1. Having regard to the injuries found on the applicants after the time spent by them in State custody, have the applicants been 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, cited above, § 87, and Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000‑VII and Bouyid v. Belgium [GC], no. 23380/09, § 83 and further, ECHR 2015)?
3. Did the authorities carry out an effective investigation, in compliance with the procedural obligation under Articles 3 and 13 of the Convention (see Lyapin v. Russia, no. 46956/09, §§ 125-40, 24 July 2014), having regard to:
(a) the investigating authorities’ refusals to open criminal cases and investigate the applicants’ allegations of ill-treatment by the State officials, and the overruling of those refusals as unlawful and unsubstantiated by higher investigative authorities or courts, and
(b) the investigating authorities’ inability to implement full investigative measures within the framework of the pre-investigation inquiries, before and/or after amendments to the Code of Criminal Procedure introduced by Federal Law no. 23-FZ of 4 March 2013, for example, confrontations, identification parades, searches, and so forth?
4. In respect of cases nos. 53617/10, 17241/12, 70526/13, 71651/13, having regard to the use of the applicants’ self-incriminating statements in the criminal cases against them, which were allegedly obtained as a result of his ill-treatment by the police and in the absence of a lawyer, did the applicants have a fair hearing, in accordance with Article 6 § 1 of the Convention (see Turbylev v. Russia, no. 4722/09, 6 October 2015)? At trial, did they apply for such evidence to be declared inadmissible? If so, what were the grounds for such applications and how were they decided by the domestic courts?
5. In case no. 17241/12 was the fact that witness A. not questioned and cross-examined in court and the fact that the courts relied on statements on anonymous witnesses Z and P compatible with Article 6 of the Convention? Were the criminal proceedings against the applicant fair within the meaning of that provision?
No
Application No. and Title
APPENDIX No. 1
Article 3 - Substantive aspect
ARREST
ALLEGED ILL-TREATMENT
EVIDENCE
Date, Time,
Facts
Region, Town,
Street
Entity
Date, Time
Location
Alleged Facts
Perpetrator(s)
Date
Doc Type
Authority
Description
of Injuries
1.
39619/09
Ishevskiy
v. Russia
03/06/2008
at 07:55; Arrested on suspicion of murder
Voronezh Region, Rossosh, at the train
Police unit, Kominternovsky District of Voronezh
After arrest on 03/06/2008
Kominternovskiy Department of the Interior –(РУВД) of Voronezh
Blows over different parts of body (stomach, chest, hands).
Police officers
03/07/2008
Forensic examination report
Voronezh Regional Forensic Bureau
Bruise on the front surface of stomach leftwards, bruise on the chest, wound on the left hand, appeared out of the impact of hard blunt object, 1-3 days before the conduct of examination.
2.
24534/10
Zakalyayev
v. Russia
01/08/2008
at 15:00
Arrested on suspicion of murder
Rostov Region, Bagayevskaya Street
Bagaevsky OVD, Rostov Region
03/08/2008
Bagaevsky OVD, Rostov Region
Hitting head with a plastic bottle filled with water, hitting ribs in the heart area, stomping on a belly.
Police officers
20/08/2008
Forensic examination report
Forensic Bureau of the Ministry of Healthcare of the Rostov Region
Rib fracture, inflicted by the impact of the hard blunt object.
03/08/2008
Bagaevsky OVD, Rostov Region
Beating in the chest area.
Police officers
3.
53617/10
Trofimov
v. Russia
15/09/2009
at 18 :00
Arrested by the traffic police on suspicion of murder, taken to the police station of Naberezhnyye Chelny by policemen N
and B.
Kazan
Traffic police
15/09/2016
The Naberezhnyye Chelny police station
When policemen N and B came to take the applicant from the traffic police post, they started to hit the applicant in his head, stomac and back. They then took him to the Naberezhnyye Chelny police station where they continued to beat the applicant. They also electrocuted and handcuffed him and hit him with a rubber truncheon.
Policemen N. and B.
22/09/2009
Forensic examination report
No. 5972
Forensic Bureau of the Republic of Tatarstan
Multiple injuries and bruises all over the applicant’s body (including wrists, elbows, knees and buttocks). Bruises originated from approximately four to ten days prior to examination, injuries - from four to seven days.
04/02/2013
Judgment of the Supreme Court of the Tatarstan Republic (appeal)
Supreme Court of the Tatarstan Republic
The court found that the applicant indeed was left without food during the period from his arrest on 16 September 2009 (at 24:10) until 18/09/2009 (19:00) in KAZ
4.
17241/12
Saaryan and Petenko
v. Russia
Applicant S
23/03/2010
at 09:30
Krasnodar region,
Novorossiysk
Police
Arrest on charges of armed robbery
During arrest on 23/03/2010 at 09:30
Novorossiysk, Krasnodar region
Multiple unspecified blows, a sack was put on the applicant S.’s head.
Police and armed men in masks
24/03/2010
2 Reports
Police of Krasnoarmey-skiy district, Krasnodar region
Multiple bruises on dorsum, bruise on right oxter, bruise on left hip". "Contused wound of the forehead, multiple bruises on dorsum, bruise on right oxter". Both rapports contain a statement that the applicant received the injuries as a result of falling from a staircase on 22/03/2010 - which explanation he subsequently contested.
In detention from 23/03/2010 to 25/03/2010
OVD Krasnoarmeyskiy district, Krasnodar region
Mulitiple unspecified blows for about an hour, torture with electric current (electrodes connected to his fingers), verbal offences, all of which led to the Applicant S.’s suicide attempt on 25/03/2010.
Police officers U., G. and others
26/03/2010
Expert statement
Forensic Bureau of Krasnodar region
Suffusions on the belly-band surface of the upper chest, left-hand side, left middle third of the arm, upper third of the femur, exterior side.
Applicant P.
26/03/2010
Moscow region, Domodedovo airport
Police
Arrest on charge of murder
5.
70526/13
Prudnikov
v. Russia
12/05/2012 at 8:20
Orel
Police of Orlov Region
Stopped and apprehended on the highway Orel-Bryansk, brought to the 6th Police Department of Orel Region
12/05/2012 from 9.00
to 24:50.
Orel,Police Department of Orel Region, Rusanova Str. 47.
The applicant was allegedly beaten at the Police Department over the head and body by hands and plastic bottle filled with water.
Unknown police officers
15/05/2012
Forensic Report N 1165/3 refers to medical examination 13/05/12
State Forensic Bureau of Orlov Region
Bruise on the left elbow, contusion of the chest and head
6.
71651/13
Michurin
v. Russia
11/12/2010
Nizhniy Novgorod
Police
Arrest on charge of murder
During detention on 11/12/2010
ORCH, Nizniy Novgorod
Blows on belly, right eye, deprivation of oxygen with putting on a gas mask, he was put laying on the floor, with a policeman sitting on a chair put on his back, torture with electric current (electrodes connected to his lumbus)
3 police officers, including L.
21/12/2010
Medical certificate
IZ-1 Nizhniy Novgorod
Subcutaneous hemorrhage of blue-green colour in periorbital zone. The medical examination was held on 13/12/2010.
No
Application No.
and Title
APPENDIX No. 2
Article 3 - Procedural aspect
DOMESTIC COMPLAINT AND THE GOVERNMENT REACTION
Date of
Complaint
Authority
Type of
Reaction
Date(s)
Procedural Outcome
1.
39619/09
Ishevskiy v. Russia
18/06/2008
Investigative Committee, Kominternovsky District of Voronezh
Consistently refused
27/06/2008
The Investigative Committee several times refused to open an investigation. The applicant challenged refusal in the national court, but to no avail (Decision of the Kominternovsky District Court of Voronezh of 08 December 2008), as the decision to refuse to open an investigation was quashed by the investigator just before the hearing.
The decision to refuse to open an investigation was quashed many times. Challenging the decision in court did not bring any results. The court’s examination of the applicant’s complaints was not thorough, as only full criminal investigation of the applicant’s complaints could have confirmed or rebutted his complaints.
2.
24534/10
Zakalyayev v. Russia
Unspecified date
Prosecution of the Rostov Region
Consistently refused
12/10/2009
The prosecutor’s authority refused to open an investigation. Challenging that decision to the court was of no avail (Decision of the Bagayevskaya District Court of the Rostov Region of 27/02/2010). The applicant’s arguments were analyzed by the court in the main criminal proceedings, who questioned the witnesses of the alleged torture (Judgment of the Bagayevskaya District Court of the Rostov Region of 15/10/2009).
No effective investigation of the applicant’s injuries was held. Raising this argument in criminal proceeding did not bring any results.
3.
53617/10
Trofimov v. Russia
14/10/2009
Prosecutor of Naberezhnyye Chelny
Consistently refused
23/10/2009 - first refusal to initiate criminal proceedings. Last decision - 03/08/2010, Supreme Court of the Tatarstan Republic (cassation appeal).
The applicant challenged second refusal of 12/12/2009. His Article 125 complaint was dismissed by a final decision (cassation appeal) of 2/11/2010. The applicant then applied with one more Article 125 complaint - final decision - cassation appeal of 03/08/2010.
Failure to properly assess the forensic examination report; no version as to the origin of injuries.
24/02/2010
trial hearing
Naberezhnochelninskiy City Court
Consistently refused
The applicant complained about his ill-treatment during his trial. Final decision - 27/04/2010, Supreme Court of the Tatarstan Republic (cassation appeal) - heard on the merits
The applicant’s complaint was heard on the merits. The courts concluded that the applicant did not have an arguable claim.
Failure to properly consider the forensic report; the courts only stated that the applicant might have been injured during arrest without further assessment of proportionality of the use of force.
4.
17241/12
Saaryan and Petenko
v. Russia
05/05/2010 and subsequently
Investigative committee
Consistently refused
Refusals on 15/05/2010, 29/09/2010, 10/11/2010
No criminal case was opened. The applicant’s lawyer contested that in the main proceedings (appeal) and separately (the first instance court decision dated 13/02/2012 to dismiss the request for hearing).
5.
70526/13
Prudnikov v. Russia
11/07/2012
Investigative Committee
Consistently refused
21/07/2012, 10/11/2012,11/01/2013, 08/02/2013, 03/04/2013
no investigation
no complaint under Art.125
6.
71651/13
Michurin v. Russia
17/12/2010
Investigative committee
Consistently refused
27/12/2010
No criminal case was opened. The refusal decision was contested, but the complaints of the applicant’s lawyer were rejected by the courts on 18/08/2011 (first instance), 13/03/2012 (appeal), and in supervisory review on 20/06/2012 (Regional Court) and on 20/02/2013 (Supreme Court).
Initial complaint was lodged by the applicant’s wife. It should be noted that the applicant stated, orally and in writing, on 11/12/2010, that he got the hematoma in the right orbit zone after accidentally falling on a car. Authorities insist on that explanation.
No.
Application no.
and case title
APPENDIX No. 3
Other complaints under the well-established case-law
Complaints and events referred to by the applicants
1.
39619/09
Ishevskiy v. Russia
Art. 5 – 1 – unlawful deprivation of liberty, including unrecorded detention and detention without a judicial order and any other legal basis - 03/06/2008 (07:55) - 05/06/2008 (15:30) The detention was unrecorded until 20:00, 3/06/2008. The time limit of 48 hours, provided in the national law before being brought before the judge after actual arrest, was exceeded. The applicant challenged the lawfulness of his detention in court, but his claim was rejected (final decision - Cassation Decision of the Voronezh Regional Court of 09/04/2009)
2.
53617/10
Trofimov v. Russia
Art. 6 – 1 Turbylev type – The applicant confessed to the murder and theft. See surrender and confession of 16/09/2009. In addition, the arrest record was drafted on the same day - the applicant , when signing, wrote that he did not agree with his arrest. The courts, in addition to other items of evidence, used the applicant’s statement as a proof of his guilt
3.
17241/12
Saaryan and Petenko v. Russia
Art. 6 – 1 Turbylev type – 23/03/2010 to 25/03/2010 Forced confessions in absence of a lawyer (not only a lawyer of the Applicant S.’s choosing, but any lawyer, despite signatures on relevant documents, which allegedly were added later)
Article 6 § 3 (d) – a key witness A. was not questioned in courts, courts relied on the statements of on anonymous witnesses Z. and P.
4.
70526/13
Prudnikov v. Russia
Art. 6 – 1 Turbylev type – On 17/07/2014 the Orlov Regional Court acting on appeal did not exclude statements obtained allegedly under duress/as a result of ill-treatment without proper examination.
Art. 5 – 1 – unlawful deprivation of liberty, including unrecorded detention and detention without a judicial order and any other legal basis – on 12/05/2012 from 8.30 to 23.30. Zheleznodorozhniy District Court of Orlov acknowledged unlawfulness of unrecorded arrest until 23.30
Art. 5 (3) - excessive length of pre-trial detention – 12/05/12 to 16/07/14 extended due to gravity of charges (numerous instances of carjacking by a group
5.
71651/13
Michurin v. Russia
Art. 6 – 1 Turbylev type – Complaint about forced confessions in absence of a lawyer being used for his conviction (raised in appeal)
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