Communicated on 24 May 2017
THIRD SECTION
Application no. 30885/16
Ayub Kharonovich TUNTUYEV
against Russia
lodged on 18 May 2016
STATEMENT OF FACTS
The applicant, Mr Ayub Kharonovich Tuntuyev, is a Russian national who was born in 1975. He is currently detained in Pyatigorsk, Stavropol Region. He is represented before the Court by Ms V. Kogan and Mr W. Egbert, representatives from the non-governmental organisation Stichting Russian Justice Initiative.
The facts of the case may be summarised as follows.
The applicant, a former member of the Security Service of the President of Chechnya and of the counterterrorism department in Argun, is currently serving a sentence following his conviction for a terrorist attack committed on 19 July 2005 in the village of Znamenskoye, Chechnya, in which ten policemen, one Federal Security Service (Федеральная Служба Безопасности (ФСС)) (hereinafter “the FSS”) officer and three civilians died and twenty-four other people were injured.
On 23 March 2009 the applicant complained to the Court about the circumstances of his arrest and conviction for the above-mentioned attack (application no. 21123/09, Vitrigov and Others v. Russia).
On 12 June 2013 his application was communicated to the Government.
On an unspecified date in August-September 2013 the applicant was transferred from Magadan, where he was serving his sentence after the aforementioned conviction, first, to a correctional colony in the Omsk Region, and secondly, on 17 May 2015, to correctional colony IK-6 in the Vladimir Region (hereinafter “IK-6”).
According to the applicant, since his transfer, he has been questioned about other clashes between the rebel fighters and the federal armed forces in 1999 in Dagestan Republic and in 2000 in Chechen Republic.
A. The applicant’s alleged ill-treatment on 17 and 26-27 May 2015 and subsequent events
Following his arrival at the IK-6 on the night of 17 May 2015 the applicant was punched and kicked all over his body by six people for an hour.
On 26 May 2015 the officers of IK-6 took the applicant to another building on the premises of IK-6. He was handcuffed and a bag was put over his head. He was made to lie on the floor and was beaten on the heels with an object, and was punched and kicked all over his body and in the head. The officers threatened to rape him. During the beatings the officers read certain documents to the applicant and pressured him to confirm his membership of illegal armed groups. The beatings continued until the evening of 27 May 2015.
On 27 May 2015 the applicant signed a statement confessing to his participation in hostilities against the federal armed forces in Chechnya between 1994 and 2005, and in an armed clash in the summer of 1999 in the Botlikhskiy district of Dagestan. According to the applicant, he only signed as a result of the ill-treatment he had sustained.
On 29 May 2015 the applicant confirmed his confession in writing.
On the same day he was taken to the medical unit of IK-6 where, for a month and a half, the doctors made him soak his feet in soda baths in an attempt to remove the haematomas from his feet.
On 4 June 2015 the applicant’s wife visited him in IK-6. She did not see any injuries on the applicant’s hands and face but noticed how difficult it was for him to sit on a chair. She asked him whether he had bruises and injuries underneath his clothes, and the applicant nodded affirmatively. The applicant told his wife that he had been pressured to confess to certain crimes, that he wanted her to instruct a lawyer for him, and that he had been transferred to a medical unit of IK-6, but was officially recorded as being in the main unit of IK-6.
On 18 June 2015 the applicant’s wife instructed a lawyer, Mr R., for the applicant.
On 23 June 2015 Mr R. went to IK-6 to visit the applicant, but was not allowed to see him. The authorities told him that the applicant had waived his right to a lawyer and showed him the applicant’s waiver written on the same day.
On 13 July 2015 another lawyer retained by the applicant’s wife was refused access to him on the grounds that he had waived his right to a lawyer earlier that day.
According to the applicant, he signed both waivers because he had been threatened with rape.
Between 14 July and 23 September 2015 the applicant was detained in a hospital within correctional colony IK-3, Vladimir Region (hereinafter “IK‑3”) for scheduled medical treatment of hepatitis.
On 12 October 2015 the applicant had a meeting with his lawyer, Mr R., at IK-3.
On 17 and 20 January 2016 in Essentuki, Stavropol Region, the applicant was interviewed as a witness in connection with his alleged involvement in hostilities with the federal armed forces in Chechnya and Dagestan in 1999‑2000. The applicant’s lawyer, Mr Sh., was present during the interviews. The applicant refused to confirm his confession statement of 27 May 2015 or his written statements of 29 May 2015 on the grounds that he had made them under duress.
On 19 January 2016 an investigator responsible for the investigation into the aforementioned events ordered a forensic medical examination of the applicant. It remains unclear whether it was ever carried out.
On 11 February 2016 the applicant was transferred from the detention facility in Pyatigorsk, Stavropol Region, back to IK-6.
On 26 February 2016 the applicant was placed in a special unit (помещение камерного типа) within IK-6 for six months.
On 6 March 2016 the applicant wrote to the investigative authorities requesting that a forensic medical examination and an investigation be carried out into his allegations of ill-treatment.
On 17 March 2016 an investigator in charge of investigation no. 68144 refused to provide the applicant’s lawyer, Mr Sh., with the results of the applicant’s forensic medical examination.
On 23 March 2016 the applicant confirmed his confession of 27 May 2015 and retracted his witness statements of 17 and 20 January 2016.
At around 9-10 a.m. on 17 May 2016 two unidentified men in plain clothes entered the applicant’s cell in IK-6, blindfolded him and hit him several times in the kidneys, head and chest. They told the applicant that unless he signed the papers that would be brought to him, they would rape and poison him.
Later the same day the applicant was taken to the headquarters of IK-6. There were three men who introduced themselves as FSS officers. For half an hour the officers threatened the applicant and pressured him to confess to a new crime. Then another man entered the room and introduced himself as an investigator from Pyatigorsk. He asked the applicant to sign a waiver of his right to his lawyer Sh. The applicant refused. The investigator did not insist and went away. The three FSS officers again entered the room and pressured the applicant.
Finally, the applicant waived his right to be represented by the lawyer Sh. and asked for a State-appointed lawyer.
The applicant was subsequently interviewed as a witness in criminal case no. 68144 by an investigator from Pyatigorsk in the presence of a State‑appointed lawyer, K. During the interview the applicant confirmed his participation in an armed clash in the Shatoyskiy district of Chechnya on 29 February 2000. He also confirmed his confession of 27 May 2015 in relation to the above-mentioned armed clash and said that he had given it voluntarily. He said that he could identify other members of the rebel fighters who had participated with him in the armed clash. He retracted his witness statements given on 17 and 20 January 2016 in Essentuki, Stavropol Region.
On the same day the applicant signed numerous records identifying by means of photographs people who belonged to armed criminal gangs.
On the same day the applicant was examined twice by a medical assistant of IK-6: before the interview and after the interview. The medical assistant acknowledged that the applicant had made no complaints as to his state of health, and that there were no signs of physical force or special means having been used against the applicant.
The applicant claimed in his submissions before the Court that he had been beaten up by officers of IK-6 on 17 May 2016, that is one day before he submitted the present application to the Court.
On 18 May 2016 the applicant lodged the present application with the Court.
On 19 May 2016 the applicant’s representative before the Court, the non‑governmental organisation Stichting Russian Justice Initiative, published on its website information about the present application.
On 20 May 2016 the applicant was visited by one of the FSS officers who had previously threatened him on 17 May 2016. The officer asked the applicant about his application to the Court and pressured him not to disclose the facts of his ill-treatment on 17 May 2016.
B. Investigations into the applicant’s allegations of ill-treatment
On 2 July 2015 the applicant’s lawyer, Mr R., complained to the investigative authorities of the applicant’s ill-treatment. He also lodged a request with IK-6 asking to be provided with a copy of the applicant’s medical records.
On 13 July 2015 the applicant’s lawyer complained to a court of the investigative authorities’ inaction.
On an unspecified date the administration of IK-6 refused to provide the applicant’s lawyer with a copy of his medical records on the grounds that on 14 July 2015 the applicant had been transferred to a prison hospital together with his medical documentation.
On 26 July 2015 the applicant’s lawyer, Mr R., complained to the investigative department of the Investigative Committee for the Vladimir Region (hereinafter “the Vladimir Region investigative department”). He requested in particular that the applicant be questioned in the presence of a lawyer and that a forensic medical examination be carried out.
On 24 August 2015 the domestic court dismissed the complaint about the investigative authorities’ inaction lodged by the applicant’s lawyer. On 18 November 2015 the Vladimirskiy Regional Court upheld that decision on appeal.
On 27 August 2015 an investigator from the Kovrov investigative department refused to institute criminal proceedings in respect of the applicant’s allegations of ill-treatment by IK-6 officers on the grounds that the applicant had failed to submit objective evidence demonstrating that officers from that colony had used physical force against him. The fact that the applicant’s medical records were not in the file was not, in his opinion, an obstacle to that decision.
On 9 November 2015 the decision was overturned by the investigator’s hierarchical superior on account of the investigator’s failure to question the applicant and to examine his medical records from IK-3 and IK-6.
On 9 December 2015, the same investigator reiterated his previous refusal to institute criminal proceedings in respect of the applicant’s allegations of ill-treatment. He did not question the applicant or examine his medical records.
On 11 December 2015 that decision was overturned on the same grounds as the previous one.
On 5 July 2016 the Kovrov investigative department initiated criminal proceedings into the applicant’s allegations of ill-treatment.
According to the applicant, on an unspecified date in October 2016 he was questioned by “Sergey Sergeyevich”, an operative officer from SIZO‑2 in Pyatigorsk, about his allegations of ill-treatment in IK-6. The applicant accepted to testify but requested the presence of his lawyer. The operative officer declined and indicated that an investigator would come and interview him.
On 2 November 2016 the applicant was visited by the same operative officer, who asked him not to testify. The applicant refused. The officer then threatened him with “complications”.
On 3 November 2016 the applicant lodged a complaint with the head of SIZO-2 in Pyatigorsk, describing the threats he had received. He also indicated that since a criminal investigation had been initiated, he should have been granted victim status and interviewed only by an investigator in accordance with the Code of Criminal Procedure.
On 7 November 2016 the applicant lodged similar complaints with the prosecutor’s office and the Investigative Committee.
On 8 November 2016 the applicant was transferred to a punishment cell (штрафной изолятор, (ШИЗО)).
C. Latest developments of the applicant’s situation
On 10 June 2016 the applicant was transferred to a detention facility in Pyatigorsk, Stavropol Region.
On 8 July 2016, in the framework of criminal case no. 68144, the applicant was charged with membership of an armed criminal gang and participation in the armed clash that took place on 29 February 2000 in the Shatoyskiy district of the Chechen Republic. The decision on the charges against the applicant did not contain any references to his confessions or any other statements.
On 21 July 2016 a forensic medical examination of the applicant was conducted in the course of the criminal case against him, no. 68144. The expert was asked, inter alia, whether the applicant had any injuries, in particular, to his feet and anus. The expert found that there were some small scratches on the applicant’s nose and wrists that could have been more than two years old. The expert found no other signs of any bruises, abrasions or injuries on the applicant.
COMPLAINTS
The applicant complains under Article 3 of the Convention that he was subjected to ill-treatment in IK-6 in May 2015, and that the authorities failed to conduct an effective investigation in that respect. Relying on Article 34 of the Convention, he further complained of hindrance to the effective exercise of his right of individual petition.
QUESTIONS TO THE PARTIES
1. Was the applicant subjected to treatment contrary to Article 3 of the Convention by officers of IK-6 in May 2015?
2. Having regard to the procedural protection from treatment contrary to Article 3 of the Convention (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation by the domestic authorities in the present case in breach of Article 3 of the Convention?
3. Has there been any hindrance by the State to the effective exercise of the applicant’s right of application, ensured by Article 34 of the Convention?
4. Did the applicant have an effective remedy for his grievances under Article 3 of the Convention, as required by Article 13 of the Convention?
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