FIRST SECTION
Application no. 4722/09
by Andrey Valeryevich TURBYLEV
against Russia
lodged on 23 October 2008
STATEMENT OF FACTS
THE FACTS
The applicant, Mr Andrey Valeryevich Turbylev, is a Russian national who was born in 1970 and lives in Ukhta, Komi Republic. He is represented before the Court by Ms I.A. Kondratyeva, a lawyer practising in Ukhta.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. Alleged ill-treatment in police custody
In April 2005 a large robbery of jewellery and other shops in a commercial centre in Sosnogorsk district of Komi Republic was committed.
On 26 August 2005 the police apprehended the applicant and two other persons on suspicion of having committed the robbery on information received from a friend of one of them.
The applicant was taken to the Sosnogorsk police department in Komi Republic (отдел внутренних дел г. Сосногорска Республики Коми, “Sosnogorsk OVD”). Records of his apprehension under Articles 91 and 92 of the Code of Criminal Procedure as a suspect in the case were drawn at 2:57 pm. The records contained information about the suspect’s rights and a statement by the applicant that he had been informed about the rights and his signature.
On the same day the applicant was allegedly beaten up by police officer Mr G. of Sosnogorsk OVD with a view to force him to confess to the robbery. The applicant wrote a statement that he had assisted two other persons apprehended by the police by loading and transporting the property stolen from the shops in his car according to a prior agreement. No lawyer was present at the time of his confession.
According to the Sosnogorsk OVD visitors’ records of the same day, the chief of the criminal investigation department Z. asked the applicant about the origin of injuries on his face. The applicant stated that his head had hit the wall and that he had had no complaints against anyone.
On the same day the applicant was placed in IVS, a detention facility at the police department of Ukhta. According to the IVS records, upon arrival he had bruises under both eyes, smashed lips, the lower jaw swollen, bruises on his back and abrasions on his knees.
On 27 August 2005 the applicant was questioned as a suspect in the case in the presence of his lawyer. He refused from the self-incriminating statements which he had given the day before and explained that they had been given as a result of his beating by the police officers.
On 30 August 2005 Judge of the Sosnogorsk Town Court ordered the applicant’s detention on remand. In reply to the Judge’s question about the origin of the injuries on his face the applicant stated that he had been beaten up by operative officers of the Sosnogorsk OVD.
B. Investigation into the alleged ill-treatment
1. Refusal to open criminal proceedings by the prosecutor’s office
On the same day the applicant’s lawyer lodged an application with the prosecutor of Sosnogorsk in which he asked to carry out an inquiry into his complaint that he had been beaten and prosecute the guilty.
On 31 August 2005 the applicant was placed in IZ-11/2 of Sosnogorsk. Upon his arrival he was examined by a medical officer who recorded the following injuries: bruises in the area of both eyes, edema of the bridge of the nose, abrasions on the forehead, on the small of the back and on the right knee, and a haematoma on the lower jaw.
On 5 September 2005 the applicant’s lawyer requested an investigator at the Sosnogorsk OVD in charge of the investigation in the criminal case against the applicant to order the applicant’s forensic medical examination (судебно-медицинская экспертиза) with a view to establishing his injuries, their possible cause and time of their infliction. The investigator rejected the request. However, such examination was ordered on the same day by investigator V. of the Sosnogorsk prosecutor’s office in charge of the inquiry into the applicant’s allegations of ill-treatment and was carried out by Ukhta Forensic Medical Bureau on 7 September 2005. The expert’s report stated that when examined on 7 September the applicant had bruises in the area of both eyes, three abrasions on the back, on the small of the back and on the right knee. These injuries could have been caused by the impact of blunt hard objects with a limited contact surface 8-12 days before the examination. They could not have been caused as a result of a single fall onto a flat surface.
On 9 September 2005 investigator V. of the prosecutor’s office of Sosnogorsk refused criminal prosecution in respect of the applicant’s complaint. He referred to statements by two police officers of Sosnogorsk OVD MM G. and K., according to which during a talk at the police station on 26 August 2005 the applicant had suddenly jumped on his feet, hit his head against the wall and made his nose bleed as a result.
2. Institution of criminal proceedings by the prosecutor
On 5 December 2005 the prosecutor of Sosnogorsk quashed the investigator’s decision of 9 September 2005 as unlawful and unfounded and brought criminal proceedings in respect of the applicant’s complaint of ill‑treatment.
3. Termination of criminal proceedings by the prosecutor’s office
On 4 March 2006 investigator V. of the prosecutor’s office of Sosnogorsk terminated the proceedings for the absence of corpus delicti in the actions of the police officers. Subsequently the proceedings were reopened and terminated many times. The last decision to terminate the proceedings under Article 24 § 1 (2) of the Code of Criminal Procedure for the absence of corpus delicti in the actions of the police officers was taken on 1 April 2007. It appears that the version of the facts as established in the first decision of 9 September 2005 remained essentially the same in all the subsequent decisions.
C. The applicant’s trial and domestic courts’ examination of the applicant’s allegations of ill-treatment by police
The applicant’s criminal case was heard by the Sosnogorsk Town Court. The court examined at the hearing the applicant’s complaint of ill‑treatment by the police officers in order to make him confess to the crime. It examined the decisions terminating the criminal proceedings against the police officers and a report on an internal police inquiry into the allegations of ill‑treatment. It examined as witnesses all police officers who had allegedly been implicated in the ill-treatment. All of them denied having ill‑treated the applicant. Having assessed the evidence the court found the applicant’s allegations untenable.
The court dismissed the applicant’s request to declare his confession of 26 August 2005 inadmissible evidence. The confession served one of the key evidence on which the court based its judgment of 6 December 2007 in which it convicted the applicant of theft and sentenced him to 6 years’ imprisonment.
On 6 June 2008 the Supreme Court of Komi Republic examined the case on appeal. In addressing the applicant’s appeal against the judgment it held that the applicant’s confession had been received in accordance with the Code of Criminal Procedure. The absence of a lawyer had not rendered it unlawful and had not violated the applicant’s right to defend himself. It further held that the trial court’s decision to reject the applicant’s complaint of ill‑treatment by the police officers was well-founded. The trial court had examined all police officers who had seen the applicant at the police station with a view to verify their implication in the alleged crime. They had all stated that no violence had been applied to the applicant. It was established that after writing his confession the applicant had suddenly jumped to his feet and hit his head against the wall as a result of which he had started bleeding. The Supreme Court of Komi Republic upheld the judgment.
On 22 December 2008 the Supreme Court of the Russian Federation examined and dismissed the applicant’s application for supervisory review of the case. It held, in particular, that the applicant’s allegations of ill‑treatment by the police officers had been examined by the trial court which had questioned the police officers and found the allegations untenable. The Supreme Court found no violation of the criminal procedural law which would have warranted the quashing of the judgments of the lower courts.
COMPLAINTS
1. The applicant complains under Article 3 of the Convention that he had been subjected to inhuman and degrading treatment by police officers of the Sosnogorsk police department, in particular that he had been beaten by police officer Mr G., in order to make him confess to the crime.
2. The applicant complains under Articles 6 §§ 1 and 3 (b) of the Convention that the judgment in the criminal proceedings against him was based on the confession obtained as a result of his beating. He had written the confession as had been dictated by the police officer in the absence of a lawyer, access to whom had been denied despite his requests. The domestic courts rejected his request to declare the confession inadmissible evidence.
3. The applicant complains under Article 13 of the Convention that the authorities rejected all his appeals in order to remedy various violations of his rights in the criminal proceedings against him, such as delays in delivering the judgment and in scheduling the appeal hearing, changes in the composition of the bench and dismissal of applications for supervisory review of the case.
QUESTIONS TO THE PARTIES
1. What were the exact times that the applicant was actually apprehended by police on 26 August 2005 (фактическое задержание) and brought to the police station? Where was the applicant held on 26 August 2005? Please submit the applicant’s detailed custody records for that day hour by hour with precise information about the applicant’s location (including an extract from the register of persons brought to a police station, visitors’ records, etc.).
2. Was the applicant subjected to torture, inhuman or degrading treatment or punishment by police officers on 26 August 2005, 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 and was his medical examination conducted out of the hearing and out of sight of police officers and other non‑medical staff?
(b) What activities involving the applicant were conducted at the Sosnogorsk OVD by the Ministry of the Interior organs (органы Министерства Внутренних Дел) on 26 August 2005, and during what periods? 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 26 August 2005 by the investigating authority responsible for investigating the robbery and during what period? 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 carried out the applicant’s examinations and recorded his injuries at the IVS on 26 August 2005 and the SIZO on 31 August 2005? Were the applicant’s examinations conducted out of the hearing and out of the sight of police officers and other non‑medical staff?
2. 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, who carried out the inquiry and the preliminary investigation into the applicant’s complaint of ill‑treatment, independent from the investigators who were responsible for investigating the criminal case against the applicant?
(b) What police officers from what police department(s) were involved in the inquiry and the preliminary investigation 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, in particular police officer Mr Gudyma of the Sosnogorsk OVD?
3. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention, and was he able to defend himself, as required by Article 6 § 3 (c) of the Convention, in view of the use in the applicant’s conviction of evidence, which was allegedly obtained as a result of the applicant’s ill‑treatment by police in the absence of a lawyer, notably his confession (явка с повинной)? Did the applicant request at the trial that such evidence should be declared inadmissible? If so, what was the ground for such request and how was it decided by the domestic courts (please submit the relevant extracts of the court records and/or any other relevant documents)?
4. 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) documents of the IVS at the police department of Ukhta concerning the applicant’s state of health and his injuries at the time of his arrival at the IVS on 26 August 2005;
(b) the Sosnogorsk OVD visitors’ records of 26 August 2005 with information concerning the applicant’s injuries;
(c) the investigating authority’s decisions in respect of the applicant’s complaint of police ill-treatment and decisions to quash them (in particular, decision of the Sosnogorsk prosecutor’s office of 4 January 2007);
(d) records of the applicant’s examination as a suspect on 27 August 2005 and as an accused on 30 September 2005;
(e) the applicant’s statements of 12 December 2005 and 18 January 2006 concerning his injuries referred to in the Sosnogorsk prosecutor’s office investigator’s decision of 4 January 2007; and his statements concerning his injuries given on 31 August 2005;
(f) the applicant’s photographs taken at the police station after his apprehension on 26 August 2005 with an indication of the time they were taken;
(g) the prosecutor’s office investigator’s decision of 5 September 2005 to order forensic medical examination.
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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