Communicated on 24 June 2014
FIRST SECTION
Application no. 20179/12
Oleg Gennadyevich YELCHANINOV
against Russia
lodged on 29 March 2012
STATEMENT OF FACTS
1. The applicant, Mr Oleg Gennadyevich Yelchaninov, is a Russian national, who was born in 1968 and lives in Orenburg. He is represented before the Court by the Committee Against Torture, a non‑governmental organisation based in Nizhniy Novgorod.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
A. The applicant’s arrest and alleged ill-treatment
3. On 2 December 2006 at midday the applicant was apprehended at his home by police officers who had received a phone call from the alleged victim of rape. The applicant was taken to the Leninskiy District police department of Orenburg (Ленинский РОВД г. Оренбурга), where he was beaten up by police officers Mi., B., and Ma. His arrest was recorded at 7.55 p.m. on 3 December 2006.
4. On 4 December 2006 at 12.40 a.m. police officers took the applicant to the Orenburg town hospital, where his injuries were recorded. At 2.45 a.m. on the same day the applicant was placed in the Orenburg temporary detention centre (ИВС). On 6 December 2006 he was placed in the Orenbourg remand prison IZ-56/1.
B. The applicant’s injuries
5. The applicant claims that he received the following injuries as a result of his ill-treatment by police officers, as indicated in the documents listed below, which concern the applicant’s state of health on 4-6 December 2006:
(a) Bruises on face (court records of the Leninskiy District Court of Orenburg of 5 December 2006);
(b) Bruises on his face, chest and back (medical certificate of Orenburg remand prison IZ-56/1 of 26 June 2007);
(c) Bruises on his face, chest, right shoulder, both hips and right buttock (certificate of the Orenburg temporary detention centre of 4 February 2009);
(d) Bruises on face (certificate of the Orenburg town hospital).
6. The applicant raised an issue of his ill-treatment during the court hearing on 5 December 2006 related to his pre-trial detention.
7. According to the certificate of the Orenburg temporary detention centre dated 4 February 2009, the applicant stated that the injuries were not related to his apprehension and further detention. According to the applicant, he gave that false statement out of fear because police officers were present at that moment.
8. According to Mr L., an attesting witness during the search held at the applicant’s home immediately after his apprehension, the applicant had no injuries at that moment.
C. Pre-investigation inquiry into the applicant’s allegation of police ill‑treatment
1. Refusals to open a criminal case
9. The Orenburg investigation division of the investigative committee at the Orenburg regional prosecutor’s office (следственный отдел по городу Оренбургу Следственного управления Следственного комитета при прокуратуре Российской Федерации по Оренбургской Области, “the Investigative Committee”) refused to open a criminal case into the applicant’s alleged ill-treatment five times pursuant to Article 24 § 1 (2) of the Code of Criminal Procedure (“CCrP”) for lack of the elements of a crime provided for by Articles 285 and 286 of the Criminal Code in the acts of the police officers. It concluded that the applicant’s allegations had not been confirmed by any evidence, or had been inconsistent, in view of the applicant’s statement made upon his arrival at the temporary detention centre that he had received his injuries before his arrest.
10. The first refusal was issued on 14 December 2007 and revoked on 28 February 2008 by higher authorities within the Investigative Committee. The subsequent refusals were issued on: 9 March 2008 and revoked on 10 April 2008, 20 April 2008 and revoked on 15 September 2009, 18 September 2009 and revoked on 15 January 2010. The last refusal was issued by the Investigative Committee on 25 January 2010. It appears that the Investigative Committee had never interviewed the applicant in the course of its inquiry.
2. Article 125 review of the refusals to open a criminal case
11. On 12 August 2009 the Leninskiy District Court of Orenburg found the Investigative Committee’s decision of 20 April 2008 to lack reasons. In particular, the court noted that the Investigation Committee should have questioned the applicant and the police officer who made the first steps in the investigation of the case against the applicant, and that no explanation of the applicant’s injuries had been provided.
12. On 22 September 2010 the same court dismissed the applicant’s appeal against the last refusal to open a criminal case. The court found that the refusal was reasonable and lawful and that the allegations of ill‑treatment had been examined in the course of the proceedings in the criminal case against the applicant. On 29 September 2011 the Orenburg Regional Court upheld that decision on appeal.
D. Criminal proceedings against the applicant
13. The applicant was found guilty of rape, sexual assault and illegal deprivation of liberty of another person by the judgment of the Leninskiy District Court of Orenburg dated 8 May 2007. The court dismissed the applicant’s allegations of his ill-treatment by police officers because the investigation authorities had found them to be unsubstantiated and because the applicant had not made any self-incriminating statements. The judgment was upheld on appeal on 19 June 2007 by the Orenburg Region Court. The appeal court dismissed the applicant’s complaint of ill-treatment noting that the investigation authorities had found it unsubstantiated.
COMPLAINTS
14. The applicant complains under Article 5 § 1 (c) of the Convention of his unrecorded detention between midday on 2 December 2006 and 7.55 p.m. on 3 December 2006.
15. He complains under Articles 3 and 13 of the Convention that he was subjected to ill-treatment by the police officers on 2 December 2006 and that the State failed to conduct effective investigation into those events.
16. The applicant also complains under Article 13 that in the absence of effective investigation into his complaint a civil claim for damages would have no prospects of success.
QUESTIONS TO THE PARTIES
1. Has the applicant been subjected to torture or inhuman or degrading treatment, in breach of Article 3 of the Convention?
2. Have the authorities provided a satisfactory and convincing explanation to the applicant’s injuries, as recorded in documents listed in paragraph 5 of the Statement of facts (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000‑VII, and Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999‑V)?
3. Having regard to the procedural protection from torture, inhuman or degrading treatment, was the pre-investigation inquiry in the present case by the domestic authorities, which refused to open a criminal case into the applicant’s complaint, in breach of Article 3 of the Convention? In particular, was the investigative authority independent from the alleged perpetrators, as well as the authority which investigated the criminal case against the applicant?
4. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 3, as required by Article 13 of the Convention?
5. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, did his deprivation of liberty between midday on 2 December 2006 and 7.55 p.m. on 3 December 2006 fall within paragraph (c) of this provision?
6. Has the applicant exhausted all effective domestic remedies in relation to his complaint under Article 5 § 1, as required by Article 35 § 1 of the Convention? In particular, did he raise his Article 5 § 1 complaint, at least in substance, together with his criminal complaint about physical violence allegedly applied by police officers?
7. Once at the hands of the police:
(a) Was the applicant informed of his rights and his procedural status?
(b) Was he given the possibility to inform his family about his detention and, if so, when?
(c) Was he given access to a lawyer and, if so, when?
8. The Government are requested to submit a copy of the entire case‑file concerning the inquiry into the applicant’s complaint of ill-treatment, as well as documents concerning the applicant’s treatment in the Orenburg town hospital in December 2006.
9. The Government are requested to submit a copy of the following documents concerning the criminal proceedings against the applicant: the applicant’s explanations after his apprehension, if any; record of the applicant’s apprehension; and records of his questioning as a suspect.
Full & Egal Universal Law Academy