OLISOV AND OTHERS v. RUSSIA - 10825/09 (Judgment : Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect) Violation of Article 3 - Prohibiti...) [2017] ECHR 388 (02 May 2017)

In the case of Olisov and Others v. Russia,

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

          Helena Jäderblom, President,
          Branko Lubarda,
          Luis López Guerra,
          Helen Keller,
          Dmitry Dedov,
          Pere Pastor Vilanova,
          Georgios A. Serghides, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 4 April 2017,

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

PROCEDURE

1. The case originated in three applications (nos. 10825/09, 12412/14 and 35192/14) 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 three Russian nationals, Mr Aleksandr Petrovich Olisov, Mr Nikita Evgenyevich Danishkin and Mr Yuriy Anatolyevich Zontov (“the applicants”), on 3 February 2009, 5 February 2014 and 16 April 2014 respectively.

2. Mr Olisov was represented by Mr A.G. Gladkikh, a lawyer practising in Orenburg. Mr Danishkin and Mr Zontov were represented by Ms E.M. Vanslova, Ms O.A. Sadovskaya and Mr I.A. Kalyapin, lawyers from the Committee Against Torture, a non-governmental organisation based in Nizhniy Novgorod. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.

3. The applicants alleged that after their arrest on suspicion of having committed crimes, they had been subjected to ill-treatment by the police in order to force them to confess to the crimes and that no effective investigation into their complaints had been carried out.

4. On 18 March 2015 the applicants’ complaints were communicated to the Government and the remainder of application no. 10825/09 was declared inadmissible.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants were born in 1973, 1985 and 1981 respectively. They live in Orsk in the Orenburg region, Krasnoturinsk in the Sverdlovsk region and Orenburg, respectively.

A. Mr Olisov’s application

6. In May 2006 D. complained to the Department for Combating Organised Crime (the “UBOP”) of the Orenburg regional police department that the applicant was allegedly planning his murder. Kh. and P. ‒ whom the applicant had allegedly hired to murder D. ‒ agreed to cooperate with the UBOP and, acting on the latter’s instructions, organised a meeting with the applicant, told him that they had killed D., showed him photographs simulating D.’s death ‒ which they had prepared as part of the UBOP covert operation ‒ and asked for payment. After paying them later the same day, the applicant and his father, who had accompanied him, were taken to the UBOP office where they arrived at about 2 a.m. on 17 May 2006.

7. According to the applicant, he was interviewed at the request of the head of the UBOP, K., until 7.30 a.m. by several operative police officers, including M., G. and O., who demanded that he confess to having ordered D.’s murder. They allegedly subjected him to ill-treatment which the applicant described as follows. They handcuffed him, punched him and subjected him to near-suffocation by use of a plastic bag put over his head. He fainted several times. They forced his legs apart until he fell and then lifted him by his hands, which were shackled behind his back. They tied him up in a painful position with a belt so that his knees were pressed against his neck, and pulled up his shackled hands. They lifted the applicant up whilst thus tied, and dropped him down onto his coccyx. One of them stepped on his head.

8. At 7.30 a.m. the applicant was placed in a cell in which he stayed until 3 p.m. He was then again interviewed and signed a document entitled “explanation” (объяснение) drawn up by the UBOP operative officer O., in which he gave statements which he later reiterated at his trial.

9. No record of the applicant’s arrest was drawn up. At 6 p.m. the UBOP officers took the applicant home, carried out a search, and then left.

10. The next day the applicant was taken by his father to the Pirogov hospital in Orenburg. According to the hospital medical records, the applicant had many bruises on his body, in particular on the head, neck, abdomen and the lumbar region.

11. On the same day the applicant complained about his ill-treatment to the Leninskiy district police department no. 1 of Orenburg, which ordered a forensic medical examination.

12. On 18 May 2006 an expert examined the applicant, his medical records, and his allegations of ill-treatment by the UBOP officers the previous day (namely being handcuffed and tied, punched and beaten with a bat), and concluded that bruises and abrasions on the applicant’s body and upper and lower extremities had been inflicted by hard blunt objects at the time, as alleged by him (forensic medical expert report of 19 May 2006).

13. On 22 May 2006 the applicant was diagnosed with a fractured vertebra and hospitalised. His X-ray examination confirmed fractures of two vertebrae.

14. On 10 July 2006 the Leninskiy district prosecutor’s office of Orenburg brought criminal proceedings against the applicant in relation to the attempted murder of D. On 12 July 2006 the applicant was arrested.

15. On 12 and 13 July 2006 the applicant was examined by a forensic medical expert who concluded that, in addition to the injuries noted in the previous report of 19 May 2006, the applicant had a fracture of the seventh thoracic vertebra which resulted in health impairment of medium gravity and had been caused in May 2006 by the impact of a hard blunt object or as a result of hitting such an object with great mechanical force.

16. According to an additional forensic medical expert opinion of 31 July 2006 produced on the basis of medical records, the fracture of the vertebra could not have resulted from being punched, kicked and beaten with a bat, or as a result of handcuffing, having the legs tied together with a belt, or lifting the applicant up by his hands. It could have resulted from an impact by a traumatic force along the axes of the spine.

17. On 31 July 2006 an investigator from the Promyshlenniy district prosecutor’s office of Orenburg ‒ who had carried out a pre-investigation inquiry into the applicant’s allegations of ill-treatment by the UBOP officers ‒ refused to initiate criminal proceedings, relying on statements by the UBOP police officers, in particular G. and O., that on 17 May 2006 the applicant had been arrested on suspicion of having ordered a murder, and had been taken to the UBOP and interviewed, and that no violence had been used against him. The investigator also referred to statements by the applicant’s father and other persons who had been in the UBOP building at the same time as the applicant and had not seen or heard that the applicant had been subjected to ill-treatment. On 26 July 2006 the applicant had been diagnosed as suffering from a mental disorder. The investigator concluded that the applicant could not be trusted, that he had probably received his injuries as a result of hitting himself accidentally against some objects, and that the true circumstances in which he had received the injuries could not be established.

18. On 14 May 2008 the Promyshlenniy District Court granted an appeal lodged by the applicant against the investigator’s decision. Subsequently, further refusals to open a criminal case followed on 24 July and 4 August 2008 and were annulled as unlawful by the prosecutor’s office.

19. On 14 October 2008 the Orenburg Regional Court convicted the applicant of the attempted murder of D., sentenced him to five years’ imprisonment and ordered him to pay damages to D. It took into account the fact that the applicant had no criminal record and also had positive references. At the trial the applicant denied his guilt, stating that his sister had been killed in a traffic accident caused by D.’s drunk driving, that D. had unlawfully avoided serving his sentence of imprisonment, that he ‒ the applicant ‒ had wished to compel D. to serve his prison sentence by using the services of Kh. and P. - who had suggested planting drugs on D., inter alia - and had paid them out of fear for his family’s safety. The applicant’s argument that the crime of which he was accused was the result of police entrapment was dismissed by the court.

20. On 23 October 2008 an investigator from the investigative committee of the Orenburg regional prosecutor’s office ordered, pursuant to Article 24 § 1 (2) of the Code of Criminal Procedure, that no criminal case be opened into the applicant’s allegations for lack of the elements of a crime under Articles 285 and 286 of the Criminal Code (on abuse of powers) in the acts of the police officers. The decision relied on the same reasoning as that set out in the initial decision of 31 July 2006, adding that the applicant had recovered from his psychiatric disorder and had been convicted.

21. On appeal by the applicant, the investigator’s decision was found lawful by the Orenburg Promyshlenniy District Court in a decision of 15 January 2009, which was further upheld by the Orenburg Regional Court on 12 March 2009. The District Court held, in particular, that the fact that the applicant had been detained unlawfully for more than three hours at the UBOP premises was not in itself sufficient to prove that he had been ill-treated by the police officers or that he had been deliberately subjected to unlawful detention. In reply to the applicant’s criticism of the investigating authority’s failure to carry out a thorough investigation and, in particular, to examine the room at the UBOP premises in which the applicant had been interviewed and allegedly ill-treated, the District Court opined that there would be no sense in examining the UBOP office given the considerable length of time that had passed since the events in question.

22. On 26 January 2009 the Supreme Court of the Russian Federation upheld the applicant’s conviction on appeal.

23. On 21 May 2015 the acting head of the supervisory department of the Orenburg regional investigative committee annulled the decision of 23 October 2008 for being based on an incomplete inquiry and ordered an additional inquiry and the applicant’s additional forensic medical examination.

B. Mr Danishkin’s application

24. On 25 December 2010 between 8.43 a.m. and 11.50 a.m. the police searched the applicant’s flat in Nizhniy Novgorod, pursuant to a decision of the Kanavinskiy District Court on 14 December 2010 concerning criminal proceedings against third persons, in order to find evidence of those persons’ membership of extremist organisations. The police found explosives and bomb-making material. Once the search had been completed, they took the applicant to the Centre for Combating Extremism at the Nizhniy Novgorod regional police department.

25. Between 4 p.m. and 5.08 p.m. the applicant was questioned as a witness in the criminal proceedings against third persons by investigator A. of the Kanavinskiy district investigative committee, who later stated that at the time of the questioning the applicant had had no injuries on the visible parts of his body.

26. The investigator ordered that the case concerning the applicant’s illegal possession of arms be transferred to an investigator at police department no. 1 of Nizhniy Novgorod.

27. The applicant was then interviewed by the head of the Centre for Combating Extremism, T., his deputy K. and three operative police officers of the Centre A., S. and Sh. According to the applicant, they demanded that he confess to preparing a terrorist act and sign a “statement of surrender and confession” (явка с повинной). They allegedly subjected him to ill-treatment which the applicant described as follows. They beat him up, punching and kicking him. With his hands handcuffed behind his back they bound him with a two-metre-long orange rope, so that his crossed legs were pressed to his torso. They pulled on the rope and lifted the applicant off the floor, subjecting him to near-suffocation as the knots in the rope were pressing against the front of his neck, making it impossible to breath. They then loosened the rope, so that the applicant fell and hit his buttocks on the floor, causing him severe pain. The applicant lost consciousness. At some point two other police officers Ch. and K. joined the others. K. punched the applicant in the face, making his lip bleed. The applicant’s ill-treatment lasted until approximately 8 p.m.

28. At about 9 p.m. the applicant was taken to police station no. 1 of the Nizhniy Novgorod town police department, formally arrested at 11.30 p.m. and questioned as a suspect.

29. In his report of 25 December 2010 to the head of the Centre for Combating Extremism, T., police officer Sh. stated that physical force had been used in order to apprehend the applicant when he tried to escape. According to subsequent statements made by Sh. and A. to the investigative authority, Sh. had tripped the applicant up in order to prevent his escape and the applicant had fallen over, whereupon Sh. “had used physical force to overcome the applicant’s resistance” and kept the applicant on the ground until the arrival of A. They had then handcuffed the applicant. As a result, the applicant had allegedly received abrasions to the head, face and neck.

30. After the applicant’s questioning as a suspect he was taken to a temporary detention facility (an “IVS”). The IVS officer on duty saw the applicant’s injuries and refused to admit him without a prior medical examination.

31. At 2.45 a.m. on 26 December 2010 the police officers took the applicant to town hospital no. 40 in the Avtozavodskoy district of Nizhniy Novgorod, where a doctor recorded contusions and bruises on his face and assessed his condition as not precluding detention.

32. On the applicant’s arrival at the IVS, the officer on duty examined the upper part of his body above the waist and recorded bruises and abrasions. The applicant stated that his injuries were the result of ill-treatment to which he had been subjected by the police officers at the Centre for Combating Extremism from approximately 4 p.m. to 6 p.m. on 25 December 2010. The applicant stated, in particular, in relation to the injuries on the face, that he had an abrasion in the temple area on the right side, a bruise under the right eye, an abrasion on the chin on the right side, and a damaged lip on the left side.

33. On 27 December 2010 the applicant was detained on remand by a court order and at 11.55 p.m. transferred from the IVS to pre-trial detention facility IZ-52/1 (the “SIZO”), where an on-duty officer and medical assistant recorded the following injuries on his body: a bruise on the right of the abdomen, a bruise in the left axillary region and multiple bruises on the face and neck. The applicant reiterated that he had been ill-treated by the police. The incident was reported to the head of the SIZO.

34. On 25 January 2011 the Kanavinskiy district prosecutor’s office received a communication from the SIZO about the injuries found on the applicant on his admission and forwarded it to the Kanavinskiy district investigation division of the Nizhniy Novgorod regional investigative committee (Следственный отдел по Канавинскому району г. Н.Новгород СУ СК России по Нижегородской области). The applicant lodged a complaint with the investigative authorities about his alleged ill-treatment and on 4 February 2011 gave a statement.

35. According to a forensic medical examination report of 24 February 2011 prepared on the basis of the applicant’s SIZO medical records (and ordered on 11 February 2011 by an investigator who inquired, inter alia, whether the injuries could have been self-inflicted), the applicant’s injuries could be classified as blunt trauma. Although the description of the injuries in the SIZO report made it impossible to determine reliably the date of their infliction, the expert suggested that the bruises on the right part of the abdomen and multiple bruises on the face and neck could have been inflicted within a period of three days prior to the applicant’s examination at the SIZO on 27 December 2010 and the bruise in the left axillary region could have been inflicted more than three days before that examination. The expert noted that the injuries were located on parts of the body within the reach of the applicant’s own hands.

36. According to an additional forensic medical examination report of 2 September 2011, prepared on the basis of the applicant’s medical documents, the applicant’s injuries could have originated either as a result of being punched and kicked, or as a result of the use of force as alleged by police officers Sh. and A.

37. According to a report of 23 March 2011, prepared on the basis of an internal inquiry and approved by the head of the internal security division of the Nizhniy Novgorod regional police department, Sh. stated that in order to overcome the applicant’s resistance he had twisted the applicant’s hand behind his back, and that the applicant had received the abrasions to the head and face as a result of falling over. The other four police officers who had interviewed the applicant had given similar statements. The report suggested that the question of the police officers’ responsibility for the applicant’s ill-treatment could only be decided by the investigative committee pursuant to a pre-investigation inquiry.

38. The Kanavinskiy district investigative committee issued six refusals to institute criminal proceedings concerning the applicant’s alleged ill-treatment (on 28 February, 8 April, 19 August, and 5 September 2011, 22 February and 1 July 2012). The first five decisions were revoked by the deputy head of the Kanavinskiy district investigative committee or the Kanavinskiy district deputy prosecutor for being based on an incomplete inquiry (decisions of 10 March, 20 July and 22 August 2011, 30 January and 22 June 2012).

39. On 15 June 2011 the Avtozavodskoy District Court of Nizhniy Novgorod convicted the applicant of illegal storage of explosives under Article 222 § 1 of the Criminal Code. On 18 November 2011 the Nizhegorodskiy Regional Court upheld the judgment on appeal.

40. In the decision refusing to open a criminal investigation into the allegations of the applicant’s ill-treatment of 1 July 2012, pursuant to Article 24 § 1 (2) of the Code of Criminal Procedure, for lack of the elements of a crime under Article 286 of the Criminal Code (on abuse of powers) in the actions of police officers Sh., A. and T., it was stated that the applicant had tried to escape during his transfer from the Centre for Combating Extremism to police station no. 1 on 25 December 2010 and could have received the injuries as a result of the lawful use of force by police officers Sh. and A. in their effort to stop him. That conclusion was based on statements by police officers based at the Centre, namely Sh., A., T., K., Ch., G., M. and S., who had conducted the applicant’s interview (опрос) with a view to establishing the circumstances of the case concerning the explosives found in his flat and his possible accomplices, in particular persons who had supplied him with the explosives. They denied the use of any violence against the applicant. The investigator confirmed that, in accordance with Article 6 § 1 of the Operational-Search Activities Act, the police officers had the right to conduct the applicant’s interview.

41. The applicant appealed against the investigator’s decision of 1 July 2012 to a court. He complained, in particular, that the investigator had not given him the opportunity to challenge the police officers’ version. The applicant’s appeal was rejected by a decision of 16 May 2013 of the Kanavinskiy District Court, which was satisfied that the decision was reasoned and lawful. That decision was upheld by the Nizhniy Novgorod Regional Court on 5 August 2013.

42. On 25 May 2015 an acting prosecutor of the Nizhniy Novgorod region annulled the refusal of 1 July 2012 as unlawful and based on an incomplete inquiry and ordered an additional inquiry, finding that the applicant’s statements contesting the police officers’ version of events and alleging the use of violence by police officer K. had not been investigated.

C. Mr Zontov’s application

43. On 26 August 2011 a woman was attacked and robbed on the street.

44. On 27 August 2011 nine police officers (Sh., R., P., G., S., M., Kh., Z. and A.S.) were ordered to arrest the applicant, who was suspected of having committed the robbery. At about 10 a.m. they apprehended the applicant on a street in Podmayachnyy village in the Orenburg Region. The applicant tried to flee because, according to him, he did not realise that those pursuing him ‒ who were dressed in plain clothes ‒ were police officers. Sh. and R. stopped him. According to the applicant, they tied his hands with a belt. The applicant was taken to the Orenburg town police department.

45. The applicant described the events at the police station as follows. He was led through an entrance for staff only to an office on the first floor and handcuffed. The police officers, in particular O., demanded that he confess to having attacked the woman and stolen her gold chain and mobile phone. O. punched the applicant twice in the chest, then hit the applicant on his feet with a rubber truncheon for about forty minutes, while the other police officers, in particular A., pinned him down on the floor, holding onto his arms and legs. He was then asked to stand up on his feet but was unable to do so, fell over and was hit by the truncheon on the left side of his torso. His feet were stepped on and he was suffocated with a plastic bag. During the suffocation, which lasted three or four hours, he fainted several times. The applicant wrote a “statement of surrender and confession” (явка с повинной), as requested. O. threatened him with further torture if he did not reiterate his confession to an investigator.

46. The “statement of surrender and confession”, in which the applicant confessed to having attacked the woman and stolen her gold chain, was recorded by the police. The applicant also signed a document entitled “explanation”, drawn up by operative police officer D., with a detailed description of the circumstances of the crime.

47. At 8.40 p.m. an investigator drew up a record of the applicant’s arrest as a suspect. The applicant gave self-incriminating statements when questioned as a suspect in the presence of a State-appointed lawyer, reiterating the confession statement he had given earlier to the police officers.

48. At 12.25 a.m. on 28 August 2011 the applicant was placed in the temporary detention facility (the “IVS”) in Orenburg town police department, where the following injuries on his body were recorded: bruises on the chest, an abrasion on the face on the left cheek bone, many abrasions on the waist, abrasions on both wrists and scars on the left forearm. The applicant stated that those injuries had been inflicted during his arrest.

49. On 29 August 2011 the applicant was taken to a traumatology centre, where he was diagnosed with contusion of the left side of his chest and both wrists.

50. At 2.30 p.m. the applicant appeared before the Promyshlenniy District Court of Orenburg, which ordered his detention on remand. The court decision referred to the investigator’s submissions that the applicant’s involvement in the crime had been established on 26 August 2011 but he had been hiding from the law-enforcement authorities until his arrest on 27 August 2011.

51. On the same day he was placed in pre-trial detention facility IZ-56/3, where bruises on the left side of his chest, both wrists and both feet were recorded.

52. On 30 August 2011 the applicant’s lawyer A., who had been retained by his family, observed injuries on the applicant when visiting him in the detention facility. The applicant told her about his ill-treatment at the police station and the self-incriminating statements he had given as a result.

53. On 31 August 2011 when questioned as an accused in the presence of lawyer A., the applicant retracted his self-incriminating statements, explaining that he had given them on 27 August 2011 as a result of his ill-treatment by the police officers.

54. According to the applicant’s mother and brother, and his acquaintance Zh., the applicant had no injuries before his arrest.

55. On 5 September 2011 the applicant lodged a criminal complaint concerning his alleged ill-treatment by the police. The Orenburg town investigative committee carried out a pre-investigation inquiry. The operative police officers who had arrested the applicant on 27 August 2011 gave explanations. They stated that as soon as the applicant had seen them he had run away and they had lost sight of him. When running away the applicant had fallen over several times. The police officers had split into several groups in order to find and stop him. Police officers Sh. and R. had caught up with the applicant, knocked him to the ground and handcuffed his hands behind his back. R. suggested that any bruises or abrasions on the applicant’s body could have been received as a result of his falling over when trying to run away from them. The police officers denied any deliberate use of force against the applicant either during his arrest or afterwards at the police station when they interviewed him.

56. On 5 October 2011 an investigator refused to initiate criminal proceedings pursuant to Article 24 § 1 (2) of the Code of Criminal Procedure for lack of the elements of a crime under Articles 285 and 286 of the Criminal Code (on abuse of powers) in the acts of the police officers. Relying on the police officers’ statements, the investigator found that the police officers had acted lawfully in using handcuffs and “blocking” the applicant, a suspect in criminal proceedings, who had tried to escape and resisted his arrest. On 10 October 2011 a deputy head of the Orenburg town investigative committee annulled the investigator’s decision on the grounds that the inquiry had been incomplete, and ordered an additional inquiry. Subsequently fourteen more refusals to open a criminal investigation into the applicant’s allegations of ill-treatment were issued by investigators and annulled by their superiors within the investigative committee for being based on incomplete inquiries.

57. On 28 December 2012 the Promyshlenniy District Court of Orenburg convicted the applicant of robbery and sentenced him to three years’ imprisonment. The applicant pleaded guilty in relation to the assault against the victim but denied robbery, stating that he had given the self-incriminating statements at the pre-trial stage of the proceedings as a result of the ill-treatment by the police. The court considered his allegations of ill-treatment unfounded, relying on the results of the inquiry and one of the refusals to open a criminal case of 21 December 2012 which had not at that moment been annulled. The court declared the applicant’s self-incriminating statements of 27 August 2011 admissible evidence. The applicant’s “statement of surrender and confession” served as a mitigating circumstance. The judgment became final.

58. During one of the additional rounds of the pre-investigation inquiry into the applicant’s allegations of ill-treatment two forensic medical expert reports were prepared, on 11 September and 18 October 2013, based on the applicant’s medical documents. The experts concluded that the applicant’s injuries - the bruises on his chest and both feet, numerous abrasions on his waist, the abrasion on the face, and numerous abrasions and bruises on both wrists - could have been inflicted as a result of impacts from a hard blunt object shortly before his injuries had been recorded at the IVS and possibly on 27 August 2011.

59. On 7 May 2014 an additional forensic medical expert report was prepared at the investigator’s request. The expert concluded that the applicant’s injuries had originated from the impact of a blunt hard object with a limited contact surface (with a limited narrow elongated contact surface in the case of the injuries to his wrists). The nature, location and mechanism of the origin of the injuries were consistent with the applicant’s version. All his injuries could have been received as a result of ill-treatment by the police officers as described by him. As regards the police officers’ version, the abrasions on the applicant’s face and waist could have been received as a result of the applicant falling over when running away during his arrest. The abrasions on the wrists could have been received as a result of the use of handcuffs. There was nothing, however, in the police officers’ statements to explain the bruises on the chest and feet.

60. On 2 June 2014 investigator V. of the Orenburg north administrative circuit investigative committee initiated criminal proceedings into the applicant’s allegations under Article 286 § 3 (a) of the Criminal Code (abuse of power with use of violence). He held that it was impossible to resolve the contradictions existing in the case-file material by means of a pre-investigation inquiry, and that it was therefore necessary to open a criminal case and examine the applicant’s allegations by way of a criminal investigation, as there was sufficient data to indicate that a crime under Article 286 of the Criminal Code might have been committed.

61. The next day the acting prosecutor of the Promyshlenniy district of Orenburg annulled the investigator’s decision as unlawful and ill-founded, disagreeing with the investigator that there was sufficient data to indicate that a crime could have been committed. The prosecutor stressed that it was possible to implement urgent measures aimed at establishing the circumstances of alleged ill-treatment within the framework of a pre-investigation inquiry, in particular by ordering forensic medical examinations. He noted that the pre-investigation inquiry had established that the applicant had received the injuries during his arrest as a suspect, and that in the final judgment in the applicant’s criminal case the applicant’s allegations of ill-treatment had been found unsubstantiated and that it was therefore impossible to question that finding.

62. The applicant appealed against the prosecutor’s decision. On 9 February 2015 the Promyshlenniy District Court found the prosecutor’s decision lawful. It held that under Article 125 of the Code of Criminal Procedure the court did not have competence to assess whether the evidence or the presence of data indicating the elements of a crime constituted grounds for instituting criminal proceedings. That decision was upheld on 16 April 2015 by the Orenburg Regional Court.

63. Following the prosecutor’s decision, on 30 July 2014 investigator V. refused to open a criminal case. His decision was annulled on 18 August 2014 by a deputy head of the second procedural supervision department of the investigative committee of the Russian Federation for being based on an incomplete inquiry. Subsequently two more decisions refusing to open a criminal case ‒ of 2 October 2014 and 26 March 2015 ‒ were also annulled for the same reason, on 16 March and 21 May 2015, respectively, by an acting head of the procedural supervision department of the Orenburg regional investigative committee.

64. In the investigator’s decision of 26 March 2015, as in the previous decisions, it was found that the police officers had acted lawfully in using handcuffs and physical force, in particular for the purposes of “blocking” the applicant, who had actively resisted arrest. The applicant had received the injuries when trying to escape and resisting arrest. The injuries on his wrists had been caused by the lawful use of handcuffs.

65. On 22 May 2015 the acting district prosecutor pointed to flagrant violations of the criminal procedural law, in particular the reasonable time requirement for examination of reports about crimes. He noted that, due to the lack of supervision and the acquiescence of the investigative committee management, the investigative committee had failed to conduct a thorough and objective inquiry for more than four years ‒ thereby violating the applicant’s rights ‒ and that this constituted a serious disciplinary offence.

66. According to a report by a psychologist who examined the applicant in September 2015 the applicant complained that, as a consequence of the police ill-treatment, he suffered from frequent headaches, blood pressure abnormalities and sleep disturbances. He displayed signs that the ill-treatment experienced by him and the lack of justice still affected him. He was diagnosed with post-traumatic stress disorder and was recommended treatment and rehabilitation measures.

II. RELEVANT DOMESTIC LAW

67. The Operational-Search Activities Act (Law no. 144-FZ of 12 August 1995) lists a number of activities that may be carried out by law-enforcement authorities for the purposes of the detection, prevention, suppression and investigation of criminal offences and the identification of persons conspiring to commit, committing, or having committed a criminal offence (section 2). In particular, the police may conduct an “interview” (опрос, section 6) in cases where a criminal case has been opened or information concerning the preparation or commission of an offence has become known to the police but the available data is insufficient to provide a basis for criminal proceedings (section 7). Results of operational-search activities can serve as a basis for bringing criminal proceedings and can be used as evidence in accordance with the legislation on criminal procedure (section 11).

68. For relevant domestic law and practice concerning the rights of suspects see Turbylev v. Russia, no. 4722/09, §§ 46-49, 6 October 2015.

THE LAW

I. JOINDER OF APPLICATIONS

69. Given that the applications at hand concern similar complaints and raise identical issues under the Convention, the Court decides to join them pursuant to Rule 42 § 1 of the Rules of Court.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

70. The applicants complained that after their arrest on suspicion of having committed criminal offences they had been subjected to ill-treatment by police officers in order to force them to confess to the crimes and that no effective investigation had been carried out into their complaints. They relied on Article 3 of the Convention, which reads:

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

71. The Government stated that the applicants’ interviews at the police stations had been part of the normal operational-search activities carried out by the police officers in accordance with the Operational-Search Activities Act. The Government submitted that there had been no violation of the applicants’ rights guaranteed by Article 3. Effective and thorough inquiries had been carried out into their allegations of ill-treatment, which at the present time remained unconfirmed.

72. The applicants considered the pre-investigation inquiries flawed and the official versions of the origin of their injuries, which were based on the police officers’ statements, inconsistent with other evidence.

A. Admissibility

73. The Court notes that the applications are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

74. The relevant general principles were recently reiterated by the Court’s Grand Chamber in the case of Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-88, ECHR 2015). In particular, where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of individuals within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. The burden of proof is then on the Government to provide a satisfactory and convincing explanation by producing evidence establishing facts which cast doubt on the version of events given by the victim. In the absence of such an explanation, the Court can draw inferences which may be unfavourable for the Government. That is justified by the fact that those in custody are in a vulnerable position and the authorities are under a duty to protect them (ibid., § 83).

1. Credibility of the applicants’ allegations of ill-treatment in police custody and the presumption of fact

75. The Court observes that the applicants were in police custody for sixteen hours, twelve hours and ten hours respectively, without their arrest being recorded. Although they were not formally recognised as suspects, the evidentiary material before the Court, in particular statements by the police officers, leaves little doubt in respect of their actual status as persons arrested on suspicion of having committed criminal offences and no other reason for holding them in police custody was suggested by the parties (see paragraphs 6, 17, 21, 24, 25, 28, 40, 44, 50, 56 and 61 above). During that time they were interviewed by the police in relation to the crimes of which they were suspected. One of them (Mr Zontov) confessed to having committed the crime by signing the “statement of surrender and confession” (явка с повинной), which he retracted as having been made under coercion as soon as he had access to a lawyer of his choice (see paragraph 53 above) but which was used as evidence against him at his trial (see paragraph 57 above).

76. After the respective periods of time spent in police custody the applicants were found to have sustained injuries (see paragraphs 10, 12-13, 15, 31-33, 48-49 and 51 above). According to the forensic medical experts, the injuries were the result of impacts from hard blunt objects or, in the case of Mr Olisov’s fracture of the vertebra, an impact resulting from a traumatic force along the axes of the spine. The Court considers that they could arguably have resulted from the applicants’ alleged ill-treatment by police officers, in particular as a result of being punched (all three applicants), kicked (Mr Olisov and Mr Danishkin), tied, lifted and dropped (Mr Olisov and Mr Danishkin), subjected to near-suffocation (Mr Danishkin), handcuffed and hit with a rubber truncheon (Mr Zontov).

77. The above factors are sufficient to give rise to a presumption in favour of the applicants’ account of events and to satisfy the Court that the applicant’s allegations of ill-treatment in police custody were credible.

78. The Court notes the Government’s contention that the applicants’ interviews (опросы) were part of normal police practice carried out in accordance with the Operational-Search Activities Act (see paragraph 67 above). The Court reiterates that it has dealt with many applications against Russia concerning ill-treatment in police custody that have exposed a systemic problem of delay in documenting the arrest and the status of detained individuals as suspects, during which time detainees were interviewed without access to a lawyer, were denied other rights of suspects, and fell victim to police abuse (see, among other authorities, Razzakov v. Russia, no. 57519/09, §§ 66-73, 5 February 2015, Fartushin v. Russia, no. 38887/09, §§ 52-54, 8 October 2015, and Ovakimyan v. Russia, no. 52796/08, §§ 54-58, 21 February 2017 (not final), in which cases the Government acknowledged a violation of Articles 3 and 5 of the Convention; Aleksandr Andreyev v. Russia, no. 2281/06, §§ 48-51, 23 February 2016, in which the Government acknowledged a violation of Article 5 of the Convention; Leonid Petrov v. Russia, no. 52783/08, §§ 52-55 and 58-60, 11 October 2016; see also Turbylev, cited above, §§ 94-95, assessing the situation under Article 6 of the Convention).

79. The fact that during the periods of alleged ill-treatment the applicants were held at the police stations without records of their arrest having been drawn up (the unlawfulness of Mr Olisov’s detention was acknowledged by the domestic court, see paragraph 21 above) and were interviewed by police officers without being able to avail themselves of access to a lawyer and other rights of suspects in criminal proceedings, attests to the applicants’ particular vulnerability vis-à-vis the police officers. It weighs heavily in favour of the applicants’ accounts of events and makes the presumption referred to in paragraph 77 above stronger (see Lyapin v. Russia, no. 46956/09, §§ 116-17, 24 July 2014, and Turbylev, cited above, § 65).

2. Whether an effective investigation was carried out into the applicants’ allegations of police ill-treatment

80. The Court observes further that the applicants’ allegations of their injuries being the result of police ill-treatment were dismissed by the domestic investigating authorities. The investigators based their findings on the results of the pre-investigation inquiry, which is the initial stage in dealing with a criminal complaint under Russian law and should normally be followed by the opening of a criminal case and the carrying out of an investigation if the information gathered has disclosed elements of a criminal offence (see Lyapin, cited above, § 129). The investigators’ decisions refusing to open a criminal case (four decisions in Mr Olisov’s case, six decisions in Mr Danishkin’s case and eighteen decisions in Mr Zontov’s case) were each time annulled by the investigating authorities for having been based on an incomplete inquiry and a new round of inquiry was ordered, the last one in May 2015. The investigator’s one decision to open a criminal case in Mr Zontov’s case was quashed next day by the prosecutor (see paragraphs 60-61 above). The prosecutor’s decision and the investigators’ refusals to initiate criminal proceedings were upheld by the domestic courts (see paragraphs 62, 22 and 41 above).

81. The Court reiterates its finding that the mere carrying out of a pre-investigation inquiry under Article 144 of the Code of Criminal Procedure of the Russian Federation is insufficient if the authorities are to comply with the standards established under Article 3 of the Convention for an effective investigation into credible allegations of ill-treatment in police custody. It is incumbent on the authorities to institute criminal proceedings and conduct a proper criminal investigation in which a full range of investigative measures are carried out and which constitutes an effective remedy for victims of police ill-treatment under domestic law (see Lyapin, cited above, §§ 129 and 132-36; Razzakov, cited above, §§ 57-61; Gorshchuk v. Russia, no. 31316/09, §§ 35-38, 6 October 2015; Turbylev, cited above, §§ 67-72; and Fartushin, cited above, §§ 44-45, in which the Government acknowledged a violation under the procedural aspect of Article 3).

82. The Court has no reason to hold otherwise in the present case, which involves credible allegations of ill-treatment of which the authorities were promptly made aware. It finds that the investigating authorities have failed to carry out effective investigations into the applicants’ allegations of police ill-treatment, as required by Article 3 of the Convention.

3. Whether the Government provided explanations capable of casting doubt on the applicants’ versions of events

83. The Government supported the conclusions of the investigating authorities to the effect that the applicants’ injuries were not attributable to the conduct of the police officers and could have been sustained in other circumstances, such as the applicant’s hitting himself accidentally against blunt objects in Mr Olisov’s case, and the other two applicants’ resisting arrest.

84. The Court notes further that the explanation of Mr Olisov’s injuries (multiple bruises and abrasions on the head, body and the upper and lower extremities and the fracture of a vertebra) was not based on any evidence of the applicant’s having committed self-harm, and that the explanations of how the other two applicants’ injuries had been caused was based on the statements of the police officers who had allegedly ill-treated the applicants. The explanation of Mr Danishkin’s injuries (multiple bruises on the face, in particular the abrasion in the temple area on the right side, the bruise under the right eye, the abrasion on the chin on the right side, and the smashed lip on the left side, multiple bruises on the neck, the bruise on the right part of the abdomen and the bruise in the left axillary region) was based on the police officers’ statements that the applicant had allegedly tried to run away from them when being conveyed to another police station and that one of them had tripped him up and kept him on the ground by “using force” until the arrival of the other policeman (see paragraphs 29 and 40 above), and that one of them had twisted the applicant’s hand behind his back (see paragraph 37 above). Lastly, the explanation of Mr Zontov’s injuries (in particular, the abrasion on the face, the bruises on the chest and both feet, numerous abrasions around the waist, and numerous abrasions and bruises on the wrists) was based on the police officers’ statements that, when running away from them during his arrest, the applicant had fallen over several times, and that in order to stop him they had knocked him to the ground and handcuffed his hands behind his back (see paragraph 55 above). The Court finds that such explanations cannot be considered satisfactory or convincing.

85. Given that those explanations were provided as a result of the inquiries’ falling short of the requirements of Article 3 of the Convention (see paragraph 82 above), the Court holds that the Government have failed to discharge their burden of proof and produce evidence capable of casting doubt on a part of the applicants’ account of events that is supported by medical evidence, and which it therefore finds established.

4. Legal classification of the treatment

86. The Court reiterates that it has deemed treatment to be “inhuman” because it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering. Treatment has been held to be “degrading” when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance, or when it was such as to drive the victim to act against his will or conscience. In determining whether a particular form of ill-treatment should be classified as torture, consideration must be given to the distinction, embodied in Article 3, between this notion and that of inhuman or degrading treatment. As noted in previous cases, it appears that it was the intention that the Convention should, by means of such a distinction, attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering. In addition to the severity of the treatment, there is a purposive element to torture, as recognised in the United Nations Convention against Torture, which in Article 1 defines torture in terms of the intentional infliction of severe pain or suffering with the aim of obtaining information, inflicting punishment or intimidating (see Gäfgen v. Germany [GC], no. 22978/05, §§ 89-90, ECHR 2010).

87. The Court finds that the acts of violence to which the applicants were subjected during the police interviews, given their severity and the aim of obtaining confessions, amounted to torture.

5. Conclusion

88. There has accordingly been a violation of Article 3 of the Convention under its substantive and procedural limbs.

III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

89. The applicants complained that they had no effective domestic remedies in relation to their ill-treatment by the police, as the authorities had failed to carry out an effective investigation into their complaints. They relied on Article 13 of the Convention, which reads as follows:

“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.”

90. The Government contested that argument.

91. The Court notes that this complaint is linked to the issue raised under the procedural aspect of Article 3 of the Convention and must therefore likewise be declared admissible.

92. Having regard to the finding of a violation of Article 3 under its procedural aspect on account of the respondent State’s failure to carry out an effective investigation, the Court considers that it is not necessary to examine this complaint under Article 13.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

93. 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

94. Mr Olisov and Mr Danishkin claimed 30,000 and 20,000 euros (EUR), respectively, in respect of non-pecuniary damage. Relying on the case-law under Article 3 of the Convention, Mr Zontov left the determination of the amount in respect of non-pecuniary damage to the discretion of the Court. He stated that he was still suffering from the consequences of the police ill-treatment (see paragraph 65 above). If the State had carried out an effective investigation and those who had assaulted and tortured him had been brought to justice and punished, this would have partially restored his moral condition. This had not happened, aggravating his suffering.

95. The Government contested the claims.

96. The Court awards Mr Olisov and Mr Danishkin the amounts claimed, and Mr Zontov EUR 45,000, in respect of non-pecuniary damage.

B. Costs and expenses

97. Mr Olisov and Mr Danishkin claimed EUR 2,400 and EUR 4,975.50 respectively for costs and expenses incurred before the Court.

98. The Government considered Mr Danishkin’s claim excessive and noted that any award should be made in compliance with the case-law.

99. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession (indicating that Mr Olisov’s application form had been lodged before Mr Gladkikh was authorised to represent him, and that the agreement for Mr Danishkin’s representation provided for a rate of EUR 50 per hour for the purpose of calculating legal costs) and the above criteria, the Court considers it reasonable to award Mr Olisov and Mr Danishkin the sums of EUR 1,600 and EUR 1,659 respectively for the proceedings before the Court. The amount awarded to Mr Danishkin is to be paid to the account of his representative, as requested by him.

C. Default interest

100. 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. Decides to join the applications;

2. Declares the applications admissible;

3. Holds that there has been a violation of Article 3 of the Convention under its substantive and procedural limbs;

4. Holds that there is no need to examine separately the complaints under Article 13 of the Convention;

5. Holds

(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) to Mr Olisov EUR 30,000 (thirty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) to Mr Danishkin EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii) to Mr Zontov EUR 45,000 (forty-five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iv) to Mr Olisov EUR 1,600 (one thousand six hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; and

(v) to Mr Danishkin EUR 1,659 (one thousand six hundred fifty nine euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts 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 Mr Olisov’s and Mr Danishkin’s claims for just satisfaction.

Done in English, and notified in writing on 2 May 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Helena Jäderblom
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> OLISOV AND OTHERS v. RUSSIA - 10825/09 (Judgment : Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect) Violation of Article 3 - Prohibiti...) [2017] ECHR 388 (02 May 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/388.html Cite as: ECLI:CE:ECHR:2017:0502JUD001082509, CE:ECHR:2017:0502JUD001082509, [2017] ECHR 388