CHERNETSKIY v. RUSSIA - 18339/04 - Chamber Judgment [2014] ECHR 1082 (16 October 2014)

In the case of Chernetskiy v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

          Isabelle Berro-Lefèvre, President,
          Elisabeth Steiner,
          Paulo Pinto de Albuquerque,
          Linos-Alexandre Sicilianos,
          Erik Møse,
          Ksenija Turković,
          Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 23 September 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 18339/04) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Aleksandr Ivanovich Chernetskiy (“the applicant”), on 2 April 2004.

2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3. The applicant alleged, in particular, that he had been ill-treated by the police on 20 and 21 March 2002 and that no adequate investigation into the matter had been made.

4. On 2 June 2009 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1971 and lives in the town of Beloozerskiy (Moscow Region).

A. Alleged ill-treatment and ensuing proceedings

6. According to the Government, in the morning of 20 March 2002 the applicant, who was armed with a handgun, along with two other persons robbed a shop in Moscow. After the robbery the applicant left the shop with bags containing the stolen items - mobile phones. The two victims of the robbery (Mr G., the owner of the shop, and Mr P., a shop assistant) ran after the applicant. They managed to catch up with him and knocked him to the ground. Mr P. and Mr G. then disarmed the applicant and tied his hands with a belt. The applicant offered resistance. With the help of passers-by, Mr P. and Mr G. held the applicant down for several minutes until the arrival of the police at 11.20 a.m. The police arrested the applicant, seized his handgun and the bags containing mobile phones, and took him to the Lefortovo police station in Moscow. In the police station the applicant wrote a “voluntary confession” acknowledging his participation in the robbery.

7. According to the applicant, he had nothing to do with the robbery. He was walking down the street when Mr G. and Mr P. suddenly pushed him in the back, knocked him to the ground and apprehended him. He offered no resistance. The bags and the handgun did not belong to him. Then he was arrested by the police and escorted to the Lefortovo police station, where they arrived at about 12 noon. After admission formalities had been completed, including a personal search in the presence of attesting witnesses, he was taken to an office, seated on a chair and handcuffed to it. Then five or six police officers entered, including Mr S.P. and Mr R., who started to question him about the circumstances of the robbery. He denied his involvement in the robbery. Mr S.P. took out a baseball bat and threatened to use it unless he confessed to the robbery. He refused and Mr S.P. started to beat him on the head with the bat wrapped in a terry towel. The applicant then fell to the floor. Other police officers started to kick him and beat him with the bat and with rubber truncheons. He alleged that the questioning and beatings continued for about five hours. The police officers also threatened to suffocate him with a gas mask, and to use other torture instruments, such as needles and pincers. To avoid further suffering, the applicant wrote the “voluntary confession”.

8. The handwritten confession of 20 March 2002 contains the following statement, followed by the applicant’s signature:

“This confession statement has been written by me voluntarily, without any mental or physical pressure from police officers.

[I] have read Article 51 of the Constitution, which states that I have the right not to give explanations concerning my conduct.”

9. Subsequently, the applicant was placed in a temporary isolation ward (“IVS”) at the Lefortovo police station.

10. The following day, on 21 March 2002, the applicant and his counsel lodged complaints with the investigator, Ms K., alleging that he had been ill-treated by the police officers. The applicant’s counsel also asked the investigator to arrange a medical expert examination of the applicant in order to establish when the injuries had occurred and how they had been inflicted. The request contained a description and diagram of the applicant’s injuries.

11. Still on 21 March 2002, a face-to-face confrontation between the applicant and Mr G. and Mr P. took place. They testified that on 20 March 2002 they had apprehended the applicant, who had offered resistance and had tried to escape. Although they acknowledged having knocked the applicant to the ground, they denied having beaten him. They also testified that they had not seen anybody beating him during his apprehension and subsequent arrest. They stated that the applicant had not resisted his arrest by the police.

12. Following the above, the investigator refused the request of the applicant’s counsel for a medical expert examination, pointing out that the injuries could have been caused by Mr G. and Mr P. when they apprehended the applicant. However, the applicant was taken to a hospital for a superficial medical examination.

13. According to a medical certificate of 21 March 2002, the applicant received medical aid at 6.45 p.m. at Moscow hospital no. 111 in connection with “multiple traumatic lesions on the head, chest and the left side of the lower back”. It was also noted in the certificate that the applicant’s medical condition was compatible with detention in the IVS.

14. According to the applicant, after the medical examination he was taken to another office in the Lefortovo police station. For about thirty minutes several police officers beat him up again in an attempt to extract unspecified information of which he was not in possession.

15. On 22 March 2002 the applicant was placed in remand prison IZ-77/1, where he was examined by a doctor. The doctor recorded the same injures as those mentioned above. He made the following entry in the applicant’s prison medical file:

“On 22 March 2002 the first medical examination was carried out. Diagnosis: multiple traumatic lesions on the head, chest and the left side of the lower back.”

16. On the same date the applicant lodged a complaint with the prosecutor, alleging that he had been subjected to ill-treatment by the police during his detention on 20 and 21 March 2002. The investigator, Ms K., also sent the complaints which the applicant and his counsel had lodged with her on 21 March 2002 to the prosecutor’s office for further processing.

17. Still on 22 March 2002 the applicant’s counsel lodged with the investigator, Ms K., a written request for a visual examination of the applicant to be carried out. According to the applicant, the request was made in order to confirm the bodily injuries inflicted on him by the police on 21 March 2002. However, the text of the request contained no reference to that. The investigator refused the request, noting that a medical examination of the applicant had already been conducted on 21 March 2002.

18. On 28 March 2002 the investigator, Ms K., questioned three police officers (Mr Gal., Mr Pop. and Mr Zav.) as witnesses in the applicant’s criminal case. They stated that on 20 March 2002 they had been on duty at the Lefortovo police station. At about 12 noon, following the instructions of a superior officer, they picked up a suspect from a police unit in the Aviamotornaya metro station and escorted him to the Lefortovo police station. The suspect was handcuffed. He was wearing a shoulder holster with a gun. In the station, the suspect was searched in the presence of two attesting witnesses and identified as the applicant. His gun was seized. The police officers added that a shop assistant carrying four big handbags had accompanied them to the police station. They were not asked whether the applicant had had visible injuries on his body at that time and gave no information in that respect.

19. On 26 April 2002 the assistant prosecutor at the Lefortovo inter-district prosecutor’s office refused to institute criminal proceedings on the grounds that the applicant’s allegations of ill-treatment were unsubstantiated. The decision read as follows:

“... On 19 March 2003 [sic] the Lefortovo inter-district prosecutor’s office of Moscow received [the applicant’s] confession to robbery ...

Later, in the course of questioning, [the applicant] complained that police officers had used physical force in order to make him confess. He could not give any information as to the names of the police officers who had arrested him, their distinguishing features, location of the office [where the alleged ill-treatment took place] or other facts.

During the inquiry it was also established that the applicant is registered with a neuropsychology clinic ... and had not been drafted into the army owing to a neurological disease. Thus, [his] allegations [of ill-treatment] have not been confirmed.”

The prosecutor’s decision contained no information concerning any actions taken to verify the applicant’s version of events. The medical documents attesting to his injuries were not mentioned either.

20. On an unspecified date the applicant appealed against this decision to the prosecutor’s office, complaining of the perfunctory nature of the inquiry into his allegations of ill-treatment at the police station.

21. Approximately two and a half years later, on 24 September 2004, the supervising prosecutor set aside the decision of 26 April 2002 refusing to institute criminal proceedings and sent the case back to the prosecutor’s office for further inquiry into the applicant’s allegations of ill-treatment.

22. On 7 October 2004 the Lefortovo deputy prosecutor again refused to open a criminal case. The decision read as follows:

“It follows from the applicant’s complaint that on 20 March 2002 he had been brought to the Lefortovo police station of Moscow by two police officers, [Mr] S.P. and [Mr] R. [sic], where he was handcuffed to a chair and beaten with a baseball bat wrapped in a terry towel in order to make him confess to a robbery ...

In the course of the additional inquiry the police officer at the Lefortovo police station, [Mr] S.P., was questioned. He explained that on 20 March 2002 [the applicant] had been arrested and questioned in connection with a robbery. The applicant was informed of his rights provided for by the Code of Criminal Procedure and Article 51 of the Constitution against his signature. He gave his testimony voluntarily and without any physical or psychological pressure. None of the police officers used any violence [against the applicant] during his arrest, while escorting him to the police station, or in the station.

It was impossible to question the [former] police officer at the Lefortovo police station, [Mr] R., as he had been discharged from the police. Several attempts were made to summon him to the prosecutor’s office. So, on 4 and 7 October 2004 the head of the Lefortovo police station was ordered to send a police officer to do that. According to the information submitted by the head ..., on 4 and 7 October 2004 a police officer went to [Mr] R.’s address, but no one answered the door. According to the neighbours, he had not lived in the flat for a long time.

Mr Sap., Mr Sub. and Mr Paut. [police officers at the Lefortovo police station], questioned in the course of the inquiry, stated that they had not met [the applicant] while on duty [on the relevant day]. They did not exercise physical or psychological pressure on him.

The investigator of the investigative division at the Lefortovo police station, [Ms] K., stated that she had been in charge of a criminal investigation into robbery ... The applicant was arrested on suspicion of his involvement in the crime and taken to the police station. During the initial investigative actions he made no complaints of any ill-treatment by police officers. Neither she nor any other officer used physical or psychological force against [the applicant].

In the course of the present inquiry it has been impossible to establish the involvement in the events under investigation of any other police officers who were on duty at the police station and in charge of arrestees at the relevant time.”

The medical documents confirming the applicant’s injuries were not mentioned.

23. On 3 December 2004 the supervising prosecutor set aside the decision of 7 October 2004 and instructed the prosecutor to question Mr R. and to arrange a medical expert examination of the injuries sustained by the applicant in March 2002.

24. Pursuant to a decision by the prosecutor of 7 December 2004, a medical expert examined the applicant’s medical file. In his report of 16 February 2005, he stated as follows:

“According to medical file no. 1812, at 6.45 p.m. on 21 March 2002 [the applicant] went to the outpatient trauma unit of Moscow hospital no. 111 ... In [his?] words, he was beaten up by unknown persons at about 11 a.m. on 20 March 2002. [Results of the examination]: grazes around the hairline (forehead). Violet and yellow bruising around the left shoulder blade and a strip of bruising measuring 1.5 x 6 [cm] in the lumbar area. Palpation [is] painful. Diagnosis: traumatic lesions (ушибы) in the soft tissue of the forehead, left shoulder blade and the left side of the lower back.

There are no other entries in the medical file.

Conclusions

1. The following injuries on [the applicant] were recorded at the trauma unit:

- grazes (ссадины) on the forehead,

- bruises (кровоподтёки) on the left shoulder blade,

- a strip of bruising on the left side of the lower back.

The above-mentioned injuries could have been caused by blunt solid objects and did not cause damage to [the applicant’s] health. The bruises resulted from contact with blunt object(s) and could have been caused by blows with the object(s) as well as by [the applicant] hitting the objects. The grazes were caused by the sliding of an object against the surface of the skin.

2. As the medical file did not contain a more detailed description of the bruises ... it is impossible to determine the exact time when they were sustained.”

25. On 17 February 2005 the Lefortovo deputy prosecutor again refused to institute criminal proceedings. His decision read as follows:

“... As it follows from the police report submitted ... the former police officer [Mr] R. has not been found despite several visits to his address in January and February this year. According to his neighbors, [Mr] R. no longer lives there and comes seldom to his flat; they do not know his place of residence.

According to the expert report of 16 February 2005 ... [the applicant] sustained bodily injuries in the form of bruises on his face and body ... As the medical documents contain insufficient information, it was impossible to establish when and how they were inflicted.

Thus, despite the measures taken, it was impossible to verify the [applicant’s] allegations.”

26. On an unspecified date the applicant complained to a court about the refusal to institute criminal proceedings.

27. On 6 February 2006 the Basmanny District Court of Moscow found that the applicant’s allegations had been duly examined by the prosecution and had been found unsubstantiated. The District Court rejected the complaint on those grounds, stating:

“It follows from the material submitted that the [applicant’s] allegations [of ill-treatment] ... have been examined in the course of the preliminary investigation. Following each inquiry a decision refusing to open a criminal case was issued.

The [applicant’s] allegations were also the subject of an internal inquiry carried out by the Internal Security Directorate of the Moscow Police Department ...

According to the results of the above inquiries, no convincing, objective and sufficient proof of unlawful conduct by the police officers has been established.

According to the conviction judgment by the Lefortovo District Court of Moscow [of 19 April 2004, see below], the [applicant’s] allegations were subject to judicial review in the course of the examination of [his] criminal case on the merits. In its judgment the court assessed them and found them ill-founded.

The judgment convicting [the applicant] has entered into legal force.

Under such circumstances, there are no grounds for granting the [applicant’s] complaint.”

28. On 21 August 2006 the Moscow City Court upheld the decision of 6 February 2006 on appeal, reiterating the reasoning of the District Court.

29. Neither the applicant nor his representative were present at the court hearings, whereas the prosecutor was present and addressed the courts.

B. Criminal proceedings against the applicant

30. On an unspecified date the applicant was committed for trial before the Lefortovskiy District Court of Moscow. The charges against him were brought by the Lefortovo inter-district prosecutor’s office.

31. During the trial the applicant repeatedly raised the issue of his alleged ill-treatment at the police station and argued that his “voluntary confession” had been obtained under duress.

32. The applicant’s wife testified before the trial court that when the applicant had left their home on the morning of 20 March 2002, he had been in good health.

33. Mr G. and Mr P. confirmed their previous testimonies: they had not beaten the applicant while apprehending him, nor had they seen anyone else beating him. They did not remember whether the applicant had had any visible injuries by the time the police arrived. However, Mr G. did not rule out the possibility that he may have caused some injuries to the applicant while apprehending him.

34. The police officers who had arrested the applicant and taken him to the police station also denied any ill-treatment of the applicant on their part. They stated that they did not remember whether he had had any visible injuries at the time of his arrest.

35. On 19 April 2004 the applicant was convicted of illegal possession of a firearm and two counts of robbery with violence, committed by an organised group. The conviction was based, inter alia, on the applicant’s confession statement of 20 March 2002. He was sentenced to eleven years’ imprisonment in a colony with a “strict regime”. The court noted in its judgment that on 20 March 2002 the victims of the robbery (Mr G. and Mr P.) had received medical aid in a hospital - Mr G. for a bite on his right hand and Mr P. for an abrasion on his right forearm.

36. On 29 September 2004 the Moscow City Court amended the judgment on appeal, but upheld the sentence.

37. Both courts rejected the applicant’s allegation of ill-treatment, referring to the results of the inquiry carried out by the prosecution authorities so far.

38. Neither the application lodged by the applicant for a supervisory review of his conviction nor his numerous complaints to various authorities about procedural irregularities in his criminal case were to any avail.

C. The applicant’s placement in a correctional colony in Komi following conviction

39. After the applicant’s conviction had become final, he was transferred to a “strict-regime” colony in the Republic of Komi to serve his sentence. The colony is situated about 1,500 km from his home in the Moscow Region.

40. On an unspecified date in 2005 the applicant asked the Federal Prison Service (“the FSIN”) to transfer him to a colony closer to his home. In its reply of 11 July 2005 the FSIN refused his request on the grounds that there were no “strict regime” colonies in the Moscow Region. The applicant complained about the refusal to the Moscow City Court, which redirected his complaint to the Ministry of Justice. The latter forwarded the complaint to the FSIN. On 14 April 2006 the FSIN wrote to the applicant informing him that his request had been refused on the same grounds. Following a further complaint submitted by the applicant, the prosecutor’s office issued a formal warning (представление) to the FSIN and asked it to remedy the breach of the applicant’s right to serve the sentence close to his home. In September 2006 the FSIN offered the applicant a transfer to a colony in the Vladimir Region, which directly borders the Moscow Region. On 7 September 2006 the applicant declined the offer for unspecified reasons.

41. In January 2007 the applicant applied to the Ust-Vymskiy District Court of the Republic of Komi for a transfer from the strict-regime colony to a “colony settlement” (another type of colony with less stringent conditions). On 24 January 2007 the court rejected the application without consideration and discontinued the proceedings, since the applicant had not yet acquired the right to ask for a transfer. On 3 April 2007 the Supreme Court of the Republic of Komi upheld the decision on appeal. On 18 August 2009 the prosecutor’s office lodged an application for supervisory review (надзорное представление) with the Supreme Court of the Republic of Komi and asked for a fresh examination of the applicant’s case because his transfer request had not been examined on the merits. The outcome of the proceedings is unknown.

42. On an unspecified date in 2010 the applicant was released on probation, having served part of his sentence.

II. RELEVANT DOMESTIC LAW AND INTERNATIONAL MATERIAL

A. Right to remain silent

43. The Constitution of the Russian Federation provides, in so far as relevant:

Article 51

“1. No one is obliged to make self-incriminating statements ...”

B. Criminal-law remedies against ill-treatment

44. Article 116 § 1 of the 1996 Criminal Code of the Russian Federation provides that the application to another person of physical force which has caused physical pain but has not resulted in any health damage is punishable by a fine, compulsory or correctional labour or detention for a period of up to three months. The infliction of physical or mental pain through regular beatings is punishable by up to three years’ imprisonment (Article 117 § 1). Under Article 117 § 2 (f) of the Code, acts of torture are punishable by up to seven years’ imprisonment.

45. Compelling a suspect or an accused to give testimony by means of threats or other illegal actions on the part of an investigator or a person performing an inquiry carries a punishment of up to three years’ imprisonment (Article 302 § 1). The same acts associated with the use of violence, mockery or torture are punishable by up to eight years’ imprisonment (Article 302 § 2). Under Article 286 § 3 (a) of the Code, the abuse of an official position associated with the use of violence or the threat of violence is punishable by three to ten years’ imprisonment, with a prohibition from occupying certain posts or engaging in certain activities for a period of three years.

C. Investigation of criminal offences

1. 1960 Code of Criminal Procedure (in force until 1 July 2002)

46. The 1960 Code of Criminal Procedure established that a criminal investigation could be initiated by an investigator following a complaint by an individual or on the investigative authorities’ own initiative when there were reasons to believe that a crime had been committed (Articles 108 and 125). A prosecutor was responsible for the general supervision of the investigation (Articles 210 and 211). He could order a specific investigative action, transfer the case from one investigator to another or order an additional investigation. If there were no grounds to initiate or continue a criminal investigation, the prosecutor or investigator issued a reasoned decision to that effect, which had to be notified to the interested party. The decision was amenable to appeal to a higher prosecutor or to a court of general jurisdiction (Articles 113 and 209).

2. 2001 Code of Criminal Procedure (in force since 1 July 2002)

47. The new Code of Criminal Procedure sets out the same rules concerning the investigation of a criminal offence as those in the 1960 Code of Criminal Procedure (Articles 37, 146, 147 and 148 of the new Code).

D. Medical examination before placement in detention

48. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (hereinafter “the CPT”) has developed standards relating to the treatment of persons deprived of their liberty. In its opinion, a medical examination, together with the right of access to a lawyer and the right to inform a third party of the fact of detention, constitute fundamental safeguards against the ill-treatment of detained persons which should apply from the very outset of deprivation of liberty, regardless of how it may be described under the legal system concerned (apprehension, arrest, and so on) (see the 2nd General Report of the European Committee for Prevention of Torture, CPT/Inf/E (2002) 1 - Rev. 2013, § 36).

49. The Regulations of 31 December 1999 on health-care provision in IVS establishments (which entered into force by virtue of joint order no. 1115/475 of the Ministry of Interior and the Health Ministry) provide that all detainees must be seen by a health-care staff member within twenty-four hours of their arrival (§ 9). If no medical staff are available, a duty officer will screen the detainee for health problems and injuries upon arrival at the IVS. The results of the screening will be recorded in a medical register (§ 10). The internal regulations for remand prisons, endorsed by the Ministry of Justice (by virtue of order no. 148 of 12 May 2000) and in force at the material time, also provided for a medical check of newly arrived prisoners (§ 16).

50. Paragraphs 44 and 52 of the Instructions for Police Station Duty Officers, which entered into force on 1 July 2002 by virtue of order no. 174dsp of the Ministry of the Interior of 26 February 2002, stipulate that if an arrested person has any visible injuries when he or she is brought to the police station, they must be recorded and reported to a superior officer. Explanations as to their origin must be taken from the person concerned, who must be provided with medical assistance, if necessary. Injuries resulting from an act of violence must be recorded in a crime incident register. It appears that no similar legal provisions existed in March 2002.

E. CPT Report on Russia

51. The CPT’s report on its visit to Russia from 2 to 17 December 2001 (CPT/Inf (2003) 30) contained the following observations:

“... 2. Torture and other forms of ill-treatment

15. During the 2001 periodic visit to the Russian Federation, the CPT’s delegation received a disturbing number of allegations of physical ill-treatment by members of the Militia. As on previous visits, the allegations concerned in the main operational Militia staff in charge of gathering evidence and involved violence aimed at the extraction of confessions from criminal suspects. A number of allegations were also received of the disproportionate use of force at the time of arrest.

...

16. The forms of ill-treatment alleged concerned punches, slaps, kicks and blows with a truncheon, baseball bat or other hard objects, sometimes whilst being handcuffed to a radiator or suspended, whipping with wet towels and beating with plastic bottles filled with water. A few allegations were also received of asphyxiation using a gas mask or plastic bag and the infliction of electric shocks. The ill-treatment alleged was on occasion of such severity that it could be considered as amounting to torture.

...

19. Acts of the kind described in paragraphs 15 to 18 are completely unacceptable. They contravene not only the European Convention on Human Rights and the European Code of Police Ethics but also the laws of the Russian Federation. The CPT acknowledges the commitment made by the Russian authorities, contained in their interim response to the 1998 visit report (CPT (2000) 50), that the Ministry of Internal Affairs was “taking the necessary steps to detect and eliminate harsh treatment”, a statement repeated in their response to the 1999 visit report (CPT 2001) 47); however, it is clear from the information gathered during the December 2001 visit that much work remains to be done.

...

3. Safeguards against the ill-treatment of persons deprived of their liberty

34. In previous visit reports, the CPT examined in detail the formal safeguards against ill-treatment which are offered to persons deprived of their liberty by the law enforcement agencies in the Russian Federation and their operation in practice. The Committee has placed particular emphasis on three rights, namely the rights of detained persons to inform a close relative or another third party of their situation, to have access to a lawyer, and to have access to a doctor. As the CPT has stressed repeatedly, these are fundamental rights which should be enjoyed by all categories of persons from the very outset of their deprivation of their liberty (that is, from the moment when the persons concerned are obliged to remain with the law enforcement agency). It is equally fundamental that persons detained by law enforcement agencies be informed without delay of all their rights, including those mentioned above, in a language they understand.

...

40. With regard to access to a doctor, as pointed out in the report on the 1998 visit, the 1995 Federal Law on keeping in custody persons suspected or accused of committing crimes (sections 19 and 24) contains a number of provisions on health care for detained persons. The impression gained by the delegation during the course of the visit was that access to a doctor by persons detained in Militia establishments was, on the whole, satisfactory.

However, the new Code of Criminal Procedure does not contain provisions entitling detained persons to access to a doctor. Further, it became apparent that it was common for Militia staff to be present during medical examinations.

In addition, although registers for the recording of injuries were kept in the IVS establishments visited (usually by the establishment’s feldsher), these registers did not set down the detainees’ explanations as to how they had sustained the injuries.

The CPT refers to the recommendations already made in the report on the 1998 visit (cf. paragraph 170 of document CPT (99) 26) and calls upon the Russian authorities to take steps to ensure that:

- the right of persons deprived of their liberty by the Militia to be examined by a doctor is expressly guaranteed, including the right to be examined, if the person concerned so wishes, by a doctor of his own choice, in addition to any medical examination carried out by a doctor called by the Militia;

- all medical examinations are conducted out of the hearing and - unless the doctor concerned expressly requests otherwise in a given case - out of the sight of Militia staff;

- the results of every examination, as well as any relevant statements by the person concerned and the doctor’s conclusions, are formally recorded by the doctor and made available to the detainee and his lawyer.

...

43. ... The CPT calls upon the Russian authorities to take urgent steps to ensure that an effective complaints system is in place and that persons are not dissuaded from having recourse to it. In this context, prosecutors should be reminded of their existing responsibilities under Prosecutor General’s Order No 31 of 18 June 1997.”

52. The CPT’s report on its visit to Russia from 21 May to 4 June 2012 (CPT/Inf (2013) 41) contained the following observations:

“... 2. Torture and other forms of ill-treatment

21. In Moscow and Saint Petersburg, most of the detained persons interviewed had no complaints about the manner in which they were treated by law enforcement officials. However, the delegation did receive some allegations of recent physical ill-treatment by members of law enforcement agencies in both cities. The ill-treatment alleged (consisting mainly of punches, kicks and baton blows) was mostly said to have occurred at the time of apprehension by plainclothes operational officers, after the apprehended persons had been brought under control... In certain cases, the alleged ill-treatment was said to have been inflicted at the time of the initial interviews by operational officers, with the purpose of extracting a confession or obtaining other information. In one such instance, which concerns Moscow North-Eastern Administrative District, the severity of the ill-treatment alleged was such that it could be considered as amounting to torture (i.e. extensive beating and asphyxiation with a plastic bag).

...

24. In all the regions visited, mention was also made of threats of being physically ill-treated or executed (the absence of recording of their detention being emphasised to the persons concerned), of being placed in a cell with prisoners referred to as ‘roosters’ or of repercussions for family members (including possible ill-treatment).

...

27. In its report on the previous periodic visit in 2008, the CPT indicated that, if police ill-treatment remained unchallenged, it could easily become an almost accepted feature of operating police practice. The Committee again stressed the importance of driving change from the top.

A little less than four years later, notwithstanding the recent efforts to reform Internal Affairs structures, the frequency and consistency of the allegations received by the CPT’s delegation during the 2012 visit suggest that methods of severe ill-treatment/torture continue to be used on a frequent basis by police and other law enforcement officials, in particular outside Moscow city and Saint Petersburg...

28. As in the past, some police officials interviewed by the delegation were convinced that the tendency by certain law enforcement officials to ill-treat persons in their custody was deeply rooted in the overreliance on confessional evidence in the investigation phase. The blame was also put on the ambiguity of the police hierarchy as to the manner in which criminal suspects should be treated during interviews as well as insufficient practice-oriented training for newly recruited operational officers.

The CPT must recall that responsibility for changing the behaviour of law enforcement officials as a whole lies first and foremost with senior officers. In this context, it is essential that the philosophy of going “from the evidence to the suspect” rather than “from the suspect to the evidence” prevails in the daily practice of all those involved in the criminal justice process (operational officers, investigators, prosecutors and judges). Further, law enforcement officials should have a good grasp of the practical implications of the principle of proportionality when force has to be used as a last resort.

...

c. medical examination on admission [to detention facilities]

122. In all the establishments visited, prisoners were seen by a member of the health-care team (usually a feldsher) on the day of their arrival or on the next day. More detailed examination by a doctor and various tests (including screening for tuberculosis, HIV, syphilis and hepatitis) took place in the days following arrival.

However, it is a matter of concern that the confidentiality of medical examinations was frequently not respected: escorting police officers, non-medical prison staff and (at Colony No. 1 in Yagul) prisoner orderlies were often present in the rooms where the initial examinations took place. The CPT reiterates its long-standing recommendation that steps be taken to ensure that all medical examinations of prisoners are conducted out of the hearing and - unless the health-care professional concerned requests otherwise in a particular case - out of the sight of non-medical staff; under no circumstances should police officers or prisoner orderlies be present during such examinations.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

53. The applicant complained that following his arrest on 20 March 2002 he had been subjected to treatment incompatible with Article 3 of the Convention and that there had been no adequate investigation into the matter. Article 3 of the Convention reads as follows:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. Submissions by the parties

54. The Government argued that the complaints were manifestly ill-founded. They stressed that the applicant’s allegations of ill-treatment had been thoroughly examined by the prosecution authorities and the domestic courts, which had found them unsubstantiated. They refrained from commenting on the origin of his injuries.

55. The applicant maintained his complaint and pointed out that the refusals to institute criminal proceedings into his allegations of ill-treatment had been repeatedly overturned by supervising prosecutors as flawed. Moreover, he was never questioned by the prosecution during the inquiry. He further argued that during the criminal proceedings against him numerous witnesses had confirmed that he had been in good health when arrested. He referred to inconsistences in his confession statement of 20 March 2002, in particular that Article 51 of the Russian Constitution had a different meaning from the one indicated by him in the statement (see paragraphs 8 and 43 above). That proved that he had not been acquainted with his right to remain silent while writing the confession statement and, therefore, supported his claim that the confession had been given under duress. He added that given that he was innocent, he would never have given a self-incriminating statement voluntarily.

B. The Court’s assessment

1. Admissibility

56. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

(a) General principles

(i) “Minimum level of severity”

57. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim. In respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct, diminishes human dignity and is in principle an infringement of the right set forth in Article 3 (see Assenov and Others v. Bulgaria, 28 October 1998, § 94, Reports of Judgments and Decisions 1998-VIII).

(ii) Establishment of facts in cases concerning alleged ill-treatment by the police

58. The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt”, but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Labita v. Italy [GC], no. 26772/95, § 121, ECHR 2000-IV).

59. Where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention (see Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V, with further references).

(iii) Investigation into the allegations of ill-treatment

60. The Court reiterates that where an individual raises an arguable claim that he has been seriously ill-treated by the police or other such agents of the State unlawfully and in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. This investigation should be capable of leading to the identification and punishment of those responsible (see Assenov and Others, cited above, § 102).

61. An obligation to investigate “is not an obligation of result, but of means”: not every investigation should necessarily be successful or come to a conclusion which coincides with the claimant’s account of events; however, it should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 71, ECHR 2002-II, and Mahmut Kaya v. Turkey, no. 22535/93, § 124, ECHR 2000-III).

62. An investigation into serious allegations of ill-treatment must be thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis for their decisions (see Assenov and Others, cited above, §§ 103 et seq.). They must take all reasonable steps available to them to secure evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence (see, mutatis mutandis, Salman v. Turkey [GC], no. 21968/93, § 106, ECHR 2000-VII, and Tanrıkulu v. Turkey [GC], no. 23763/94, §§ 104 et seq., ECHR 1999-IV). Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard.

63. Furthermore, the investigation must be expeditious. In cases examined under Articles 2 and 3 of the Convention, where the effectiveness of the official investigation is at issue, the Court has often assessed whether the authorities reacted promptly to the complaints at the relevant time (see Labita, cited above, §§ 133 et seq.). Consideration has been given to the starting of investigations, delays in taking statements (see Timurtaş v. Turkey, no. 23531/94, § 89, ECHR 2000-VI, and Tekin v. Turkey, 9 June 1998, § 67, Reports 1998-IV), and the length of time taken to complete the initial investigation (see Indelicato v. Italy, no. 31143/96, § 37, 18 October 2001).

64. Lastly, the investigation should be independent (see Öğur v. Turkey [GC], no. 21954/93, §§ 91-92, ECHR 1999-III, and Mehmet Emin Yüksel v. Turkey, no. 40154/98, § 37, 20 July 2004). Thus, an investigation lacks independence where members of the same department as those implicated in alleged ill-treatment are the ones undertaking the investigation (see Güleç v. Turkey, 27 July 1998, §§ 80-82, Reports 1998-IV). Independence of the investigation implies not only the absence of a hierarchical or institutional connection, but also independence in practical terms (see, for example, Ergi v. Turkey, 28 July 1998, §§ 83-84, Reports 1998-IV).

(iv) Standard of scrutiny in cases under Article 3

65. Where domestic proceedings have taken place, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them (see Klaas v. Germany, 22 September 1993, § 29, Series A no. 269). Although the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (see Matko v. Slovenia, no. 43393/98, § 100, 2 November 2006). At the same time, where the applicant raises an arguable complaint of ill-treatment, the Court must apply a particularly thorough scrutiny (see Gladyshev v. Russia, no. 2807/04, § 53, 30 July 2009, with further references).

(b) Application of the principles to the present case

(i) Alleged ill-treatment

66. It is undisputed between the parties that the applicant sustained injuries which were recorded in his medical file on 21 and 22 March 2002, namely multiple bruises on the head, chest and the left side of his lower back. In the Court’s view, those injuries were sufficiently serious to reach the “minimum level of severity” under Article 3 of the Convention.

67. The Court observes that the applicant presented a sufficiently detailed and consistent account of the alleged beatings in the Lefortovo police station and produced medical evidence attesting that he had injuries which could have resulted from such beatings, at least arguably. The Court is satisfied that the applicant raised an arguable claim concerning the alleged ill-treatment.

68. The Court notes at the outset that neither the authorities conducting the inquiry into the applicant’s allegation of ill-treatment at the domestic level nor the Government in the proceedings before the Court provided any explanations as to the origin of his injuries. That compels the Court to establish the facts, drawing such inferences as it deems appropriate from that attitude (see Rule 44C § 1 of the Rules of Court, and Savriddin Dzhurayev v. Russia, no. 71386/10, § 132, ECHR 2013 (extracts)).

69. That being said, the Court notes that the investigator in charge of the applicant’s criminal case suggested that the injuries could have been caused by the victims of the robbery when they apprehended the applicant (see paragraph 12 above). In this connection the Court notes that the applicant was not medically examined immediately after his arrest on 20 March 2002 (see, by contrast, Volodarskiy v. Russia, no. 45202/04, § 8, 14 February 2012). The Court observes that at the time of the events in question, Russian legislation apparently did not provide for a medical examination of detained persons from the very outset of the prevention of liberty (see paragraph 50 above). In cases of this kind, however, the medical examination of an arrested person prior to being placed in police custody is important for several reasons as the CPT has stressed (see paragraph 48 above). It not only ensures that the person is fit to be questioned in police custody but also enables a respondent Government to discharge the burden of providing a plausible explanation for any injuries found (see Carabulea v. Romania, no. 45661/99, § 112, 13 July 2010).

70. Having examined the evidence before it, the Court does not find it convincingly proven that the injuries suffered by the applicant were inflicted by the victims of the robbery. The Court observes that the applicant was apprehended following a hot pursuit and that he was armed with a handgun, so stopping and disarming him might have required the use of at least some physical force. However, given the character of the injuries (multiple traumatic lesions, grazes and bruises, inter alia, in the form a strip of bruising, see paragraphs 13, 15 and 24), they are unlikely to have been inflicted in the circumstances of the applicant’s apprehension by private individuals, as presented by them (see paragraphs 11 and 33). The investigating authorities did nothing to verify the allegations of those individuals or to determine the cause of the applicant’s injuries. In the absence of any explanations from the Government in that respect (see, mutatis mutandis, Sherstobitov v. Russia, no. 16266/03, § 78, 10 June 2010) and in view of the national authorities’ failure to conduct a medical examination immediately after the applicant’s arrest (see Mammadov v. Azerbaijan, no. 34445/04, § 65, 11 January 2007; Korobov v. Ukraine, no. 39598/03, § 70, 21 July 2011), the Court may assume that the applicant was in good health prior to his being taken into custody (see Türkan v. Turkey, no. 33086/04, §§ 43 and 48, 18 September 2008). To conclude otherwise would seriously undermine the effectiveness of the Convention protection of persons in a similarly vulnerable situation to the applicant.

71. Furthermore, the Court attaches importance to the fact that the applicant, in his statements to the domestic authorities and to the Court, was unequivocal in his account that he had been ill-treated by police officers while in custody at the Lefortovo police station. He gave a detailed account of the treatment he had suffered, and medical evidence corroborates his account. The Court is mindful of the fact that on 21 March 2002 the doctor - apparently citing the applicant’s or the police officers’ explanations - indicated in his medical file that the applicant had been beaten up by unknown persons at about 11 a.m. on 20 March 2002, namely before his arrival at the Lefortovo police station at about 12 noon (see paragraphs 7 and 24 above). The Court notes that the evidentiary value of that entry in the applicant’s medical file is rather low. It was not a conclusion made by the doctor on the basis of a medical expert examination, but information received from an unspecified source (see paragraphs 10 and 12 above). The doctor was never interviewed by the authorities in the course of the inquiry into the applicant’s allegations of ill-treatment. In view of the above, the Court considers that this entry does not refute the applicant’s allegations.

72. The Court reiterates that the State is responsible for the welfare of all persons held in detention. Such persons are in a vulnerable situation and the authorities have a duty to protect them. Bearing in mind the authorities’ obligation to account for injuries caused to persons within their control in custody, and in the absence of any convincing explanation concerning the origin of the applicant’s injuries, the Court considers that the Government have failed to provide a plausible explanation as to how the applicant sustained the injuries. It therefore concludes that the injuries in question, at least in part, were the result of treatment for which the Government bore responsibility.

73. Having regard to all the circumstances of the ill-treatment, its physical and mental effects and the applicant’s state of health, the Court finds that the accumulation of the acts of physical violence inflicted on the applicant amounted to inhuman and degrading treatment, in violation of Article 3 of the Convention.

74. There has therefore been a violation of Article 3 of the Convention under its substantive limb.

(ii) Adequacy of the investigation

75. As already established (see paragraph 67 above), the applicant’s claim concerning the alleged ill-treatment was an arguable one. Therefore, it was incumbent on the domestic authorities to conduct an effective official investigation into such allegations.

76. The Court notes, first, that it took the domestic authorities almost three years to complete the official inquiry into the applicant’s allegations of ill-treatment. During that time the refusals by the prosecutor’s office to institute criminal proceedings against the police officers were quashed twice by the supervising prosecutor, with reference to the failure to take necessary investigative measures (see paragraphs 21 and 23 above). The Court considers that such remittals of the case for re-examination disclose a serious deficiency in the inquiry, which irreparably protracted the proceedings.

77. Secondly, the decisions not to open a criminal case disclose a number of significant omissions in the official inquiry. Thus, it appears that the officer in charge of the inquiry never questioned the applicant in respect of his ill-treatment complaint. The medical documents attesting to the applicant’s injuries were not mentioned in the first decisions, so the investigator concluded that there was no case to answer (see paragraphs 19 and 22 above). Even in the decision where those documents were mentioned, no explanation was provided as to the origin of the applicant’s injuries and the court limited its review to concluding that there had been no “convincing, objective or sufficient proof” confirming the applicant’s account (see the decision of 6 February 2006 by the Basmanny District Court, paragraph 27 above). No face-to-face confrontation between the applicant and the police officers allegedly involved in the ill-treatment took place. It appears that there was no attempt to identify and inspect the premises where the applicant had allegedly been ill-treated. Nor did the authorities try to find and question individuals who might have had useful information about the applicant’s state of health upon his arrival at the Lefortovo police station on 20 March 2002 and thereafter, in particular, the police officers who had arrested him, the police officers who had escorted him to the station after his arrest, the attesting witnesses present at his personal search on admission to the police station (see paragraph 18 above), the doctor who had examined him at Moscow hospital no. 111 on 21 March 2002 (see paragraph 13 above) and individuals who had been detained with him in the police station between 20 and 22 March 2002.

78. Thirdly, a number of investigative measures were taken belatedly. The police officers involved in questioning the applicant at the Lefortovo police station in March 2002 were not questioned by the investigating authorities until September 2004, after the remittal of the case for re-examination. By that time, Mr R., one of the officers allegedly involved in the ill-treatment, no longer worked in the police and his whereabouts were unknown. The expert report on the applicant’s medical file was not drawn up until 16 February 2005, almost three years after the alleged ill-treatment. The expert was no longer able to determine the exact time when the injuries had been sustained (see paragraph 24 above). Thus, precious time was lost and, in the Court’s view, that must have had a negative impact on the success of the inquiry.

79. Fourthly, the Court expresses serious doubts as to the impartiality of those officials who investigated the applicant’s allegations of ill-treatment. The Court observes that the investigation into the alleged beatings was entrusted to the Lefortovo inter-district prosecutor’s office - the same body which received the case against the applicant from the police and which later submitted it to the court, relying strongly on the applicant’s “voluntary confession”, which had allegedly been obtained under duress. Confirmation of the applicant’s story about the beatings would have undermined the position of the prosecution in the court and reduced their chances of establishing the applicant’s criminal liability. Furthermore, some of the tasks within the investigation into the applicant’s allegations were entrusted to the police officers of the same Lefortovo police station where the applicant had allegedly been beaten (see the decision of 7 October 2004 by the Lefortovo deputy prosecutor, paragraph 22 above).

80. Lastly, the Court notes that the applicant’s allegations were subsequently subjected to examination by the domestic courts at two levels of jurisdiction (see paragraphs 27 and 28 above). In this respect, the Court observes that the national courts merely upheld the prosecutor’s findings. They did not summon the applicant or the alleged perpetrators in order to question them in person and to present the applicant with an opportunity to confront them. Also in the ensuing criminal proceedings the courts simply referred to the prosecutor’s findings (see paragraphs 30, 31, 35-37 above).

81. The foregoing considerations are sufficient to enable the Court to conclude that the inquiry into the applicant’s allegations of ill-treatment was inadequate. There has accordingly been a violation of Article 3 of the Convention under its procedural limb.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

82. The applicant also complained that he had no effective remedies available to him in respect of the alleged ill-treatment, contrary to Article 13 of the Convention, which reads as follows:

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

83. The Court considers that the gist of the applicant’s claim under Article 13, which it considers admissible, is the domestic authorities’ alleged failure to carry out rigorous scrutiny of his allegations of ill-treatment. The Court has already examined that submission in the context of Article 3 of the Convention. Having regard to its findings in paragraphs 80 and 81 above, the Court considers that there is no need to examine this complaint separately on its merits (see, for a similar approach, Chumakov v. Russia, no. 41794/04, § 114, 24 April 2012).

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

84. Lastly, the applicant made a number of complaints under Articles 3, 5, 6 and 13 of the Convention relating to his detention, the criminal proceedings against him and the execution of his criminal sentence. However, having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court finds that there is no appearance of a violation of the provisions invoked. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

85. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

86. The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage.

87. The Government argued that the applicant’s claim for non-pecuniary damage was excessive.

88. The Court has dismissed certain grievances and found a violation of Article 3 of the Convention in its substantive and procedural aspects. The Court accepts that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. It therefore awards the applicant EUR 15,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

B. Costs and expenses

89. The applicant did not make any claims for costs and expenses incurred before the domestic courts and the Court.

90. Accordingly, the Court does not make an award under this head.

C. Default interest

91. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT,UNANIMOUSLY,

1. Declares the complaints under Articles 3 and 13, in conjunction with Article 3 of the Convention, admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 3 of the Convention in its substantive aspect;

3. Holds that there has been a violation of Article 3 of the Convention in its procedural aspect;

4. Holds that there is no need to examine separately the applicant’s complaint under Article 13, in conjunction with Article 3 of the Convention;

5. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent state at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 16 October 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Isabelle Berro-Lefèvre
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> CHERNETSKIY v. RUSSIA - 18339/04 - Chamber Judgment [2014] ECHR 1082 (16 October 2014) URL: http://www.bailii.org/eu/cases/ECHR/2014/1082.html Cite as: [2014] ECHR 1082