Communicated on 19 September 2016
THIRD SECTION
Application no. 32992/13
Aleksey Sergeyevich SOVETOV
against Russia
lodged on 29 April 2013
STATEMENT OF FACTS
1. The applicant, Mr Aleksey Sergeyevich Sovetov, is a Russian national who was born in 1975 and is currently detained in Cherepovetsk remand prison no. 3.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
A. Events of 31 October and 1 November 2011
3. The applicant occupied the post of head of the Cherepovetsk inter‑district department of the Federal Service for Drug Control (“the drugs police”) in the Vologda Region. Before the events described below regular medical checkups by a doctor, surgeon, neuropathologist, ophthalmologist and otolaryngologist conducted on 1 December 2009, 1 November 2010 and 28 April 2011 had shown that he was healthy. He successfully participated in sporting competitions in October 2009 (lifting weights of 140 kg) and 2011 (billiards).
4. On 31 October 2011 the Vologda regional Investigative Committee, assisted by the Vologda regional department of the Federal Security Service (“the FSB”), carried out a search of the offices of the drugs police in connection with a criminal case against one of the applicant’s subordinates and other officers in the department, whose identity had not been established, on suspicion of alleged involvement in the ill-treatment of a detainee and of committing fraud against another detainee. F., a deputy head of the investigative committee’s division for the investigation of particularly important cases, was in charge of the case. According to the official record, between 10.50 a.m. and 2.10 p.m. an investigator, G., and two FSB officers carried out a search of the applicant’s office. Some items, including a green substance and another powdery substance, were seized. The applicant, who participated in the search, stated that the substances had been planted.
5. Between 3.10 p.m. and 3.17 p.m. another investigative committee investigator, M., carried out a strip search of the applicant, as ordered by F. Between 3.30 p.m. and 3.38 p.m. the applicant’s coat was seized as evidence. All those investigative actions were carried out in the applicant’s office.
6. According to statements by the investigator G. and an FSB officer, K., after the investigative actions in the offices of the drugs police the applicant was handed over to the FSB officers for transfer to their building for further investigative measures. According to K., at the FSB office the applicant was asked by the investigative committee officials to stay for further investigative actions which required his personal participation. According to statements by Officers V.K. and O. of the FSB, who participated in the search of the drugs police offices and then took the applicant to the FSB building, they handcuffed the applicant during his transfer. That action had been in accordance with the law regulating the use of handcuffs on suspects because a substance resembling drugs had been found in the applicant’s office, which had given grounds to suspect him of a criminal offence. The applicant might also have resisted arrest or tried to escape.
7. In the FSB building K. allegedly instructed one of the officers on duty not to register the applicant’s arrival in the official records. He also allegedly told officers in balaclava masks to kick the applicant so that he would “start talking”. They started beating, kicking, insulting and threatening him.
8. Between 4.26 p.m. and 4.57 p.m. the investigator F. questioned the applicant as a witness in the offices of the FSB. She issued an order for a search of the applicant’s flat as a matter of urgency. Her order stated that according to expert report no. 1585 of 31 October 2011 the green substance found in the applicant’s office was marijuana. Another powdery substance had also been found there and there were sufficient reasons to believe that instruments of a crime and items of evidentiary value for the criminal case could be found in the applicant’s flat, which therefore needed to be searched without delay.
9. After his questioning by F. the applicant’s ill-treatment allegedly continued. Investigator M. allegedly struck him twice in the area of the left kidney. FSB officers allegedly kicked him on his legs. G., another suspect in the case, witnessed them kicking the applicant and later confirmed that in his statements. The applicant was interviewed until 3 a.m. in various FSB offices, beaten and threatened in order to force him to give incriminating testimony against himself and his colleagues.
10. Between 3.17 a.m. and 4.50 a.m. on 1 November 2011 an FSB investigator B. and three FSB officers carried out a search of the applicant’s flat in the presence of the applicant. His wife and daughter, a minor, were present. According to statements by V.K. and O., who took the applicant to his home for the search, the applicant was handcuffed during his transfer and the search.
11. Afterwards he was taken back to the FSB office, where his ill‑treatment allegedly continued. According to statements by K. and other FSB officers, talks (беседы) were conducted with the applicant until 11 a.m. on 1 November 2011.
12. On 1 November 2011 an examination by an expert identified the powdery substance seized in the applicant’s office as containing methylenedioxypyrovalerone.
13. At 11 a.m. a criminal case against the applicant was opened in connection with the illicit procurement and storage of drugs in large quantities, punishable under Article 228 § 1 of the Criminal Code.
14. At 12.10 p.m. a record of the applicant’s arrest was drawn up. The record stated that M., the investigator with the investigative committee, had placed the applicant under arrest as a suspect at 12.10 p.m. on 1 November 2011 in the offices of the FSB Vologda regional department. The applicant made an entry in the record that he had actually been detained since 8.30 a.m. on 31 October 2011, had been deprived of food and sleep, and had not been involved in the imputed crime.
15. Between 1.10 p.m. and 1.50 p.m. the applicant was questioned as a suspect by M. in the FSB’s office. From 3.00 p.m. to 4.15 p.m. he participated in a search of his car.
16. After the search he was taken back to the FSB’s office. FSB officers D., K., P., M. and two others in balaclava masks allegedly started kicking him on his legs and then tied a rope around his head and tightened it, pressing on his eyes. Over the following five hours they allegedly twisted the applicant’s hands, tightened the rope around his head, kicked him and struck him on the head while wearing gloves, demanding that he make self-incriminating statements. The applicant allegedly fainted several times and twice vomited. They allegedly tried to inject him with a drug. He resisted, keeping his hands underneath him while lying on the floor. He felt a sharp pain in the shoulder and fainted. He regained consciousness while being dragged across the floor by the rope that was around his head.
17. At about 9 p.m. the FSB officers took him to a temporary detention facility (IVS) in Vologda, striking him on the head on the way. The applicant was placed in the IVS at 11.45 p.m.
B. Subsequent events and the applicant’s complaints
18. The first time he was given food after the search of his office was the morning of 2 November 2011. He had also allegedly been deprived of water and sleep for all that time.
19. According to a medical assistant at the IVS, when examined on 2 November 2011 the applicant complained about a pain in his chest. According to a record of the applicant’s examination by a doctor at a drug rehabilitation clinic on the same day, the applicant complained about a pain in the joint of his right shoulder. The applicant had allegedly been insulted, had his arms twisted and had been struck on the way to the clinic.
20. At a hearing at the Vologda Town Court on 3 November 2011 to examine the investigator’s request to detain the applicant on remand, the applicant, who was assisted by a lawyer, complained that he had actually been detained since 8.30 a.m. on 31 October 2011, and that he had been deprived of food for two days. His complaint was not dealt with in the decision delivered by the Town Court on the above date. On 5 November 2011 the Town Court held another hearing in the presence of the applicant and his lawyer. It ordered that the applicant be detained on remand.
21. On the same date the applicant was placed in Vologda remand prison (SIZO) no. 2. A medical examination was not carried out on his arrival. He was placed in solitary confinement for two weeks. He allegedly suffered from a strong pain in his shoulder. His requests for medical assistance were disregarded. On 1 December 2011 a medical examination was carried out for the first time (the belated medical examination was confirmed in a letter of 20 February 2013 from the Vologda regional department of the Federal Prison Service). No injuries or complaints were noted, but according to the applicant the medical staff refused to record them.
22. On 26 December 2011 the applicant lodged a criminal complaint with the prosecutor’s office of the Vologda Region. He complained that he had been unlawfully deprived of his liberty on 31 October and 1 November 2011, had suffered deprivation of water, food and sleep and physical ill‑treatment. His complaint was dealt with by the military investigative division of the Vologda Garrison.
23. On 29 December 2011 the Vologda Town Court extended the applicant’s detention on remand. The applicant reiterated his complaint that he had been unlawfully detained on 31 October and 1 November 2011. He also complained that he had been subjected to violence by FSB officers. Relying on the official record of his arrest, the Town Court held that the applicant had been taken before an investigator, who had been authorised by law to detain him as a suspect, on 1 November 2011, and that the applicant’s participation in investigative actions on the night of 31 October to 1 November 2011 could not be considered as actual detention. The applicant’s complaint concerning his alleged ill-treatment was not examined. On 19 January 2012 the Town Court’s decision of 29 December 2011 was upheld on appeal by the Vologda Regional Court.
24. According to the medical records of SIZO no.2, on 13 January 2012 the applicant complained about a pain in his right shoulder joint. He was told he needed an X-ray and a consultation with a surgeon owing to suspected strained or torn ligaments in the right shoulder. On 16 January 2012 an X-ray was performed. No traumatic changes of the bones of the right shoulder joint were detected. On 23 January 2012 the applicant was examined by a surgeon who noted that the applicant complained about a sharp pain in the front part of the right shoulder joint. The surgeon detected a small protrusion of muscle fibres at that place, diagnosed the applicant as suffering from the consequences of a strain or tear of the ligaments of the right shoulder joint and recommended an examination by a traumatology doctor.
25. As the remand prison did not provide such an examination, the applicant’s brother agreed with a specialist from Vologda regional hospital no. 1, L., and on 5 March 2012 he took him to the remand prison so that he could examine the applicant. It appears from the handwritten record of the visit that the applicant said that the trauma of the right shoulder had been caused on 1 November 2011. The traumatology doctor found an old injury of the ligaments in the applicant’s right shoulder, diagnosed him with subacute post-traumatic periarthritis, and prescribed treatment. On 8 June 2012 the traumatology doctor was interviewed during an inquiry into the applicant’s complaints. According to a record of the interview prepared by an investigator, K., of the investigative committee, the doctor stated that he had diagnosed the applicant with an old injury of the right shoulder joint, for which no surgery had been required, and that it had been impossible to determine when the injury had happened. A person with such an injury usually had a lot of pain and needed to consult a doctor in the first few days after receiving it. The traumatology doctor also stated that a partially torn chest muscle which the applicant had also had was clearly old and could have been received any time between six to eight months and several years beforehand. It was a type of injury that was common among athletes who lifted weights or did arm wrestling and could not be received as a result of lifting one’s hands behind one’s back.
26. The applicant did not receive the treatment prescribed by the traumatology doctor until his family provided him with the necessary medication. It was used for inpatient treatment from 21 to 30 March 2012, and his subsequent outpatient treatment.
27. The applicant’s criminal complaint was dismissed as unfounded and investigators with the military investigative division of the Vologda Garrison issued refusals to open a criminal case. Those refusals were set aside as unlawful and unsubstantiated by the investigators’ superiors. In particular, in a decision of 30 November 2012, the head of the military investigative division of the Vologda Garrison annulled a decision of 3 September 2012, noting shortcomings in the pre-investigation phase.
28. It was not before 19 December 2012 that the investigator in charge of the inquiry into the applicant’s complaints ordered a forensic medical examination, which was carried out without the applicant being seen in person. On 27 December 2012 experts at the Ivanovo centre for forensic medical and criminal expert examinations of the Ministry of Defence issued report no. 219/12, which was based on documents submitted by the investigator (the applicant’s medical records from the detention facilities, statements by FSB officers, the traumatology doctor and other people collected in the course of the inquiry, and two witness statements). The experts concluded that there was no causal connection between the applicant’s health issues and the injury to his right shoulder or with his alleged ill-treatment, and that the applicant could have received the shoulder injury in a weightlifting competition in 2009. The shoulder injury was qualified as moderately harmful to his health.
29. Subsequently investigators issued new refusals to institute criminal proceedings linked to the applicant’s alleged deprivation of liberty and ill‑treatment. All those decisions were annulled, apart from the last one, on 21 February 2013, which was found lawful by the courts in a review under Article 125 of the Code of Criminal Procedure (a decision by the Vologda Garrison Military Court of 11 April 2013, upheld by the Leningrad Circuit Military Court on 20 June 2013). The courts considered that the investigator’s decision had been based on a comprehensive and thorough investigation. As regards the alleged unlawful detention, the courts held that the applicant had participated in investigative actions and after the search in his home had stayed at the FSB building because he had wished to do so.
30. A total of eight refusals to institute criminal proceedings linked to the applicant’s complaints were issued. The investigators established that between 8.35 a.m. on 31 October 2011 and 12.20 p.m. on 1 November 2011 the applicant had been in the offices of the drugs police and the FSB in order to participate in investigative actions on the instructions of his superior and because his personal participation had been required. The investigators found that that situation had been lawful, as was the applicant’s handcuffing during his transfer from the drugs police building to the FSB building on 31 October 2011. The latter finding was made on the basis of statements by the FSB officers K. and O. They stated that they had handcuffed the applicant in accordance with regulations governing the use of handcuffs on suspects as there had been grounds to suspect the applicant of a criminal offence in view of the fact that substances resembling drugs had been seized in his office and because he had behaved aggressively. He had also been well developed physically and could have resisted arrest or tried to escape. The same officers also stated that they had handcuffed the applicant when he had been taken to his flat for the search. In dismissing as unsubstantiated the applicant’s allegations that he had been deprived of water, food and sleep and had suffered physical ill-treatment that had led to the shoulder injury, investigators relied on statements given by the investigator Ms G. and FSB officers, who denied any wrongdoing and explained that that they had had a talk with the applicant at the FSB building. A statement by Mr G. that he had seen the applicant being kicked by FSB officers at the FSB building on 31 October 2011 was rejected as unreliable because G. was the applicant’s co-accused and former subordinate. The investigators also relied on the forensic medical experts’ report of 27 December 2012. Based on explanations by the applicant’s former colleagues that the applicant had torn his chest muscle when lifting weights at a competition in May 2009, the investigators concluded that the shoulder injury could have been sustained on that occasion.
31. The applicant brought civil proceedings for damages, in particular on account of his alleged unlawful detention and ill-treatment. On 4 June 2014 the Vologda Town Court dismissed his claim, relying, in respect of the alleged physical ill-treatment, on the investigator’s refusal of 15 May 2012 to institute criminal proceedings and the forensic medical report of 27 December 2012. On 2 September 2014 the Vologda Regional Court upheld the judgment on appeal. The Vologda Regional Court and the Supreme Court examined his cassation appeals and refused, on 15 December 2014 and 2 February 2015, respectively, to refer the case for consideration by those courts.
C. Conditions of the applicant’s detention on remand
32. Since August 2013 the applicant and eleven other defendants have been standing trial at the Cherepovetsk Town Court on multiple charges of abuse of office and drug-related offences.
33. The applicant has been held continuously in detention on remand owing to the gravity of the charges, and the risks of his absconding, reoffending or interfering with the course of justice. Some court decisions referred to the applicant’s status as a former police officer familiar with the methods of the investigation of crimes. According to the applicant, the courts did not rely on any specific facts to justify his continued detention, and had since the beginning of the trial issued decisions about the group as a whole without examining his individual situation. The applicant reiterated his complaints concerning his unlawful detention on 31 October and 1 November 2011 and of ill‑treatment at court hearings that extended his detention on remand throughout 2012-2015.
34. Between 6 April 2012 and 30 April 2013 the applicant was held in solitary confinement in cell no. 27 at SIZO no.2 measuring 12 sq. m. Two daylight lamps with two bulbs each were left on around the clock. The cell had no night lamp. The applicant’s sleep was disturbed, he had headaches and pains in his eyes, his eyesight deteriorated and he had nervous breakdowns. His complaints to the administration of the remand prison were ignored. Later, until 19 August 2013, the applicant shared his cell with three other inmates. Two of them confirmed his description of the conditions of detention in the cell (statements by Z. of 19 August 2013 and by D. of 22 September 2013).
35. For twenty days, from 14 September 2015, the applicant was held in solitary confinement again, in cell no. 212 at SIZO no.3. It had a toilet that was not separated from the rest of the cell, one 1 sq. m of free space and was permanently monitored by a closed-circuit camera.
36. On the days of hearings at the Cherepovetsk Town Court (more than 200 since the beginning of the trial) the applicant has been transported from his detention facility to the court handcuffed in a prison van in a metal compartment measuring no more than 0.4 sq. m without any ventilation or safety belts. The journey one way lasts between one to two hours. At the court, before and after the hearings and during breaks, that is two to three hours per day on average, he has been held in cells in the basement measuring 1.5-1.7 sq. m with up to three or more people. Those cells are filthy, poorly lit, cold in winter and have no ventilation for fresh air. He appears in the courtroom in a metal cage, although some of his co‑defendants sit outside the cage. He has to sort through documents needed for his defence on the floor of the cage, in which four people are detained at a time. There are no daily walks on the days when there are hearings. Since the beginning of the trial in 2013 the applicant has been subjected to such conditions on more than 200 occasions.
COMPLAINTS
1. The applicant complains that he was unlawfully detained on 31 October and 1 November 2011, in breach of Article 5 § 1 of the Convention; that he was deprived of water, food and sleep during that time, that he was physically ill‑treated, and that he did not receive medical treatment for the injury to his right shoulder that had been inflicted on him on 1 November 2011, in violation of Article 3 of the Convention. He also complains under Articles 3 and 13 of the Convention that no effective investigation of his ill‑treatment was carried out.
2. The applicant also complains under Article 5 § 3 of the Convention that there has been no justification to keep him in detention on remand since 5 November 2011, and that the conditions of his detention on remand – notably solitary confinement for one year in SIZO no.2 and for twenty days from 14 September 2015 in SIZO no.3; the twenty-four-hour use of daylight lamps in cell no. 27 at SIZO no.2 for almost a year and a half, depriving him of sleep; the conditions of detention in cell no. 212 at SIZO no.3; the conditions on the days of court hearings, in particular the conditions of transportation to and from the courthouse, of detention in the courthouse and his placement in a metal cage in the courtroom – are incompatible with Article 3 of the Convention.
QUESTIONS TO THE PARTIES
Questions concerning the events on 31 October 2011 and 1 November 2011:
1. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, did his deprivation of liberty on 31 October 2011 and 1 November 2011 until his formal arrest as a suspect fall within paragraph (c) of this provision (see Creangă v. Romania [GC], no. 29226/03, §§ 84-110, 23 February 2012; Fartushin v. Russia, no. 38887/09, 8 October 2015; and Aleksandr Andreyev v. Russia, no. 2281/06, 23 February 2016)? The Government are invited to provide a detailed hour-by-hour report on what happened in the premises of the Cherepovetsk department of the Federal Service for Drug Control and the Vologda regional department of the Federal Security Service and to account for the time spent there by the applicant.
2. Having regard to the alleged deprivation of water, food and sleep on 31 October 2011 and 1 November 2011 until the applicant’s formal arrest as a suspect, has the applicant been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention?
3. Having regard to the applicant’s alleged physical ill-treatment which resulted in an injury to his right shoulder, has he been subjected to torture or inhuman or degrading treatment, in breach of Article 3 of the Convention (see Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999‑V; and, among recent authorities, Razzakov v. Russia, no. 57519/09, 5 February 2015; and Gorshchuk v. Russia, no. 31316/09, 6 October 2015)?
If the response is negative, the Government are invited to discharge their burden of proof to provide a satisfactory and convincing explanation by producing evidence establishing facts which cast doubt on the account of events given by the applicant (see Bouyid v. Belgium [GC], no. 23380/09, § 83 and further, ECHR 2015).
4. Having regard to:
(a) the investigation authorities’ refusals to open a criminal case and investigate the applicant’s allegations of ill-treatment, and the overruling of those refusals as unlawful and unsubstantiated by higher investigative authorities, and;
(b) the investigation authorities’ inability to implement full investigative measures within the framework of the pre-investigation inquiries, for example, confrontations, identification parades, searches, and so forth;
was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention (see Lyapin v. Russia, no. 46956/09, §§ 125-40, 24 July 2014)?
5. Having regard to the alleged lack of medical assistance for the injury to the applicant’s right shoulder, has he been subjected to torture or inhuman or degrading treatment, in breach of Article 3 of the Convention?
Questions concerning the length and conditions of the applicant’s detention on remand:
6. Was the length of the applicant’s pre-trial detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention?
7. Having regard to the applicant’s solitary confinement for more than a year in SIZO no.2 and for twenty days in SIZO no.3, the twenty-four-hour use of daylight lamps during the applicant’s detention for over a year and a half in cell no. 27 at SIZO no.2, the conditions of his detention in cell no. 212 at SIZO no.3, and the conditions of the applicant’s detention on the days of court hearings, including in particular the transportation to and from the courthouse, his detention in the courthouse and the placement in a metal cage in the courtroom, has the applicant been subjected to torture, or inhuman or degrading treatment, in breach of Article 3 of the Convention?
Request for information and documents:
8. The parties are invited to submit the following information and documents:
(a) the exact date of the applicant’s participation in the billiards competition in 2011;
(b) records of the examination of the witness Ms Sovetova, referred to in forensic medical expert report no. 219/12, the refusal to open criminal proceedings dated 29 December 2012 and the Vologda Town Court’s judgment of 4 June 2014;
(c) a typed copy of the applicant’s complete medical records from SIZO no. 2 concerning the injury to his right shoulder.
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