THIRD SECTION

DECISION

Application no. 31231/06 Roman Vyacheslavovich LYUPAYEV against Russia and 3 other applications (see list appended)

The European Court of Human Rights (Third Section), sitting on 28 September 2021 as a Committee composed of:

Peeter Roosma, President, Dmitry Dedov, Andreas Zünd, judges, and Olga Chernishova, Deputy Section Registrar,

Having regard to the above applications lodged on the various dates indicated in the appended table,

Having regard to the observations submitted by the respondent Government (“the Government”) and the observations in reply submitted by the applicants (“the applicants”),

Having deliberated, decides as follows:

THE FACTS

1. A list of the applicants is set out in the appendix.

2. The Government were represented initially by Mr G. Matyushkin and Mr M. Galperin, Representatives of the Russian Federation to the European Court of Human Rights, and then by their successor in that office, Mr M. Vinogradov.

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. On 21 June 2001 the applicant was arrested and taken to the Zheleznodorozhnyy District Police Department in Yekaterinburg, where he was allegedly beaten by police officers.

5. On the same day the applicant was taken to a hospital, where he was diagnosed with bruises and tissue haematomas.

6. On 22 June 2001 the applicant signed a confession statement ( чистосердечное признание ) that he had committed robbery and murder.

7 . On 17 July 2001 the applicant complained to the prosecution office about his alleged ill-treatment. On 24 July 2001 an investigator refused to open a criminal case, finding the applicant’s allegations unfounded. The applicant did not seek judicial review of the refusal.

8. On 17 October 2002 the Sverdlovsk Regional Court convicted the applicant of aggravated robbery and murder. The trial court took note of the applicant’s allegations of ill-treatment but dismissed them as unsubstantiated. The court excluded the applicant’s confession as evidence in the criminal case, since the confession was obtained in breach of the criminal procedure.

9. On 7 August 2003 the Supreme Court of the Russian Federation quashed the conviction and remanded the case for a new trial.

10 . On 25 March 2004 the investigator again refused to open a criminal case into the applicant’s alleged ill-treatment. The applicant did not seek judicial review of the refusal.

11. On 23 April 2004 as a result of the second set of the criminal proceedings the Sverdlovsk Regional Court convicted the applicant. On 27 September 2004 the Supreme Court of Russia again quashed the conviction on the grounds that that the trial court had used the applicant’s confession as evidence, while it had been previously excluded.

12 . On 23 June 2005 after the third set of the criminal proceedings the Sverdlovsk Regional Court convicted the applicant of aggravated robbery and murder. The trial court refused to examine in substance the applicant’s allegations of ill ‑ treatment, on the grounds that the confession obtained as a result of the alleged ill-treatment had been excluded from evidence.

13. On 7 December 2005 the Supreme Court of the Russian Federation upheld the conviction on appeal.

14. On 23 June 2005 police officers of the Drug Control Service of the Ulyanovsk Regional Department arrested the applicant as a result of a drug test purchase operation, and took him to the police office, where the applicant was allegedly beaten.

15. On the same day an investigator ordered a chemical expert examination of the substance seized during the covert operation. An expert of the Drug Control Service carried out the examination and concluded that the seized substance was heroin.

16. On 24 June 2005 the applicant was transferred to a temporary detention facility (“IVS”). According to his medical notes, he had bruises on his body.

17 . On 19 July 2005 the applicant complained to the prosecution office about his ill-treatment. On 30 July and 10 September 2005 an investigator refused to open a criminal case, finding the applicant’s allegations unfounded.

18. On 17 October 2005 the Dmitrovgrad Town Court dismissed the applicant’s complaint against the refusal of 10 September 2005 as unfounded.

19 . On 30 November 2005 the Ulyanovsk Regional Court upheld the first instance court decision on appeal.

20 . On 26 December 2005 the Dmitrovgrad Town Court convicted the applicant of an attempted drug sale. During the trial the applicant requested a new chemical expert examination to be carried out in respect of the substance seized during the operation, arguing that the previous conclusions were unreliable. The trial court dismissed the request, finding no reason to doubt the expert’s reliability.

21 . On 15 March 2006 the Ulyanovsk Regional Court upheld the conviction on appeal, dismissing the applicant’s allegations of biased expert examination and his allegations of duress following his arrest, referring to the pre-investigation inquiry conclusions.

22 . On 11 December 2010 police officers arrested the applicant in Nizhniy Novgorod on suspicion of murder and took him to the police station. On the same day the officers drew up a report that they had handcuffed the applicant because he had resisted during the arrest. They also noted that when convoyed to the police station, the applicant had tried to remove the handcuffs, had slipped on the ice and fallen, hitting a car door. At the police station the applicant signed a confession statement without a lawyer ( явка с повинной ).

23 . On the same day the applicant was placed in the IVS, where he was examined by an officer on duty. The officer drew up a report that the applicant had a haematoma under his right eye. The applicant signed the report. The applicant also wrote an explanation that he had sustained the haematoma when he had slipped on the ice and hit a car.

24. On 12 and 13 December 2010 the applicant was questioned as a suspect with a lawyer present. He confessed to the murder.

25. On 13 December 2010 the applicant was placed in detention in a remand prison. According to his wife, he had bruises on his face, and she learned from him that the officers had beaten him, forcing to confess.

26. On 17 December 2010 the applicant’s wife lodged a complaint with the investigation office, alleging that the officers had beaten the applicant after his arrest.

27 . On 20 December 2010 an investigator initiated an inquiry into the complaint. He questioned the applicant, who submitted that the officers had beaten him and subjected to electric shocks, the police officers, who had carried out the arrest, and IVS officers, and requested the applicant’s medical documents from the IVS and remand prison.

28 . On 23 December 2010 the applicant underwent a forensic examination. The expert concluded that the applicant had only a haematoma under his right eye, which could have been the result of him hitting a car door.

29 . On 27 December 2010 an investigator refused to open a criminal case. He cited the applicant’s and his wife’s explanations, as well as the explanations of police and IVS officers. He referred to the applicant’s medical documents and his forensic examination report. The investigator found that the applicant’s only injury, a haematoma under his right eye, could have been the result of him hitting the car door, which was consistent with the explanations of police officers and the case materials. He concluded that the applicant did not have any other injuries which could possibly indicate that the applicant had been beaten.

30 . On 18 August 2011 the Avtozavodskoy District Court dismissed the applicant’s appeal against the refusal and endorsed the investigator’s reasoning. On 13 March 2012 the Nizhegorodskiy Regional Court upheld the decision of the first instance court on appeal.

31 . On 20 June 2012 the Nizhegorodskiy Regional Court rejected the applicant’s supervisory complaint against the decisions of the first instance and appeal courts. On 20 February 2013 the Supreme Court of Russia dismissed the applicant’s supervisory complaint.

32 . Meanwhile, on 8 February 2013 the Nizhegorodskiy Regional Court convicted the applicant along with his other seven co-defendants of multiple episodes or murder and robbery committed in an organised group. The applicant pleaded not guilty, arguing that he had confessed under duress. Convicting the applicant, the court relied, among other evidence, on his confession statement given on 11 December 2010, his interview records of 12 and 13 December 2010 and statements of his co-defendants implicating the applicant in the crimes. As regards his complaint that his confessions had been given under duress, the court referred to the refusal to open a criminal case, statements of police officers given at the trial, and examined the applicant’s medical records. It found the applicant’s arguments that he had given his confessions under duress unfounded.

33. On an unspecified date the applicant appealed against the conviction, arguing that his confessions had been obtained under duress and complaining in general about the unfairness of the proceedings. On 3 September 2013 the Supreme Court of Russia upheld the judgment, dismissing the applicant’s arguments as unfounded.

34. On 26 May 2002 police officers of the Norilsk District Department of the Interior arrested the applicant on suspicion of a crime. According to him, the officers beat him, forcing to confess. It follows from the case materials that the applicant was released later.

35. On 4 December 2002 an investigator refused to open a criminal case into the applicant’s allegations of his ill-treatment in May 2002.

36. Between 31 January and 30 October 2004, the applicant was arrested on four occasions on suspicion of a crime and then released. According to him, police officers ill-treated him each time, forcing him to confess to the crimes. Various injuries had been recorded in his medical documents and certificates drawn up during this period at a hospital and detention facilities, where the applicant had been detained.

37 . On 10 February 2005 the applicant was convicted of murder attempt to twenty-five years of imprisonment.

38 . According to the applicant, on 30 September 2011 he lodged a complaint about his ill-treatment with the police. The outcome of this complaint is unclear.

39 . On 18 July 2013 the applicant lodged a complaint with the prosecutor about his alleged ill-treatment in 2002 and 2004.

40 . Between September 2013 and April 2016, the investigators issued at least six refusals to open a criminal case, finding the applicant’s allegations of ill-treatment unsubstantiated.

41. On 4 October 2016 the Norilsk Town Court dismissed the applicant’s appeal against the latest refusal of 22 April 2016.

42. On 6 April 2017 the Krasnoyarsk Regional Court upheld the first instance court decision on appeal.

43. The applicant is currently serving his sentence.

44. The relevant domestic law is set out in Lyapin v. Russia , no. 46956/09, §§ 96-102, 24 July 2014.

COMPLAINTS

45. The applicants complained under Articles 3 and 13 of the Convention that they had been subjected to ill ‑ treatment at the hands of law ‑ enforcement officers and that no effective investigation into their complaints had been carried out.

46. Mr Sharipov (no. 45914/06) also complained under Article 6 of the Convention that the trial court had rejected his request to carry out a new expert examination of the substance seized from him during the arrest.

47. Mr Michurin (no. 71651/13) complained under Article 6 of the Convention that his conviction had been based on his confession statements obtained as a result of his ill-treatment, which had rendered his trial unfair.

THE LAW

48. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications given their similar factual and legal background.

49. The Government argued that the applicants had failed to comply with the six-month rule in respect of their complaints under Articles 3 and 13 of the Convention. In particular, in the cases of Mr Lyupayev, Mr Sharipov and Mr Michurin they submitted that the six-month period should be calculated from the dates of the final decisions in the proceedings, in which the applicants challenged the refusals to open a criminal case and not from the dates of the court decisions upholding their respective convictions. In the case of Mr Ivanov, the Government pointed out that the applicant had waited for eleven years after his alleged ill-treatment before complaining about it to the authorities.

50. The applicants maintained the complaints.

51. The Court reiterates that the primary purpose of the six-month time ‑ limit provided for by Article 35 § 1 of the Convention is to maintain legal certainty by ensuring that cases raising issues under the Convention are examined within a reasonable time, and to prevent the authorities and other persons concerned from being kept in a state of uncertainty for a long period of time (see Sabri GüneÅŸ v. Turkey [GC], no. 27396/06, § 39, 29 June 2012, and El Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, § 135, ECHR 2012).

52. Normally, the six-month period runs from the final decision in the process of exhaustion of domestic remedies. However, where it is clear from the outset that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 157, ECHR 2009).

53. Where an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it may be appropriate for the purposes of Article 35 § 1 of the Convention to take the start of the six-month period from the date on which the applicant first became or ought to have become aware of those circumstances (see Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, §§ 259-60, ECHR 2014 (extracts)).

(a) Lyupayev v. Russia (no. 31231/06), Sharipov v. Russia (no. 45914/06) and Michurin v. Russia (no. 71651/13)

54. The Court observes that the applicants lodged their applications with the Court on 5 June 2006 (Mr Lyupayev), 11 September 2006 (Mr Sharipov) and 22 October 2013 (Mr Michurin). The applicants complained about their ill-treatment to which they had been allegedly subjected by the police in 2001, 2005 and 2010, respectively.

55. The applicants unsuccessfully sought to open criminal proceedings into the alleged ill-treatment by lodging complaints with the national authorities. Their complaints resulted in several refusals issued by the investigators who found the applicants’ complaints against the police officers unfounded (see paragraphs 7, 10, 17 and 29 above).

56. The Court observes that Mr Lyupayev did not challenge the refusals before the domestic courts (see paragraphs 7 and 10 above). Two other applicants, Mr Sharipov and Mr Michurin, sought judicial review of their respective refusals, but in vain. In the case of Mr Sharipov, the Ulyanovsk Regional Court dismissed his appeal against the refusal by its final decision of 30 November 2005 (see paragraph 19 above), and in the case of Mr Michurin, the Nizhegorodskiy Regional Court dismissed his appeal on 13 March 2012 (see paragraph 30 above). The Court observes that Mr Michurin also attempted to challenge the court’s decision by way of a supervisory complaint but to no avail (see paragraph 31 above).

57. The Court notes that about the same time the criminal proceedings were pending against the applicants and eventually they were all convicted. Their convictions were upheld on appeal by higher courts on 7 December 2005 (Mr Lyupayev), 15 March 2006 (Mr Sharipov) and 3 September 2013 (Mr Michurin).

58. The Court observes that the applicants introduced their applications with the Court more than six months after the respective final decisions in the proceedings, in which they challenged the refusals to open a criminal case, but less than six months from the dates of the appellate courts’ decisions, upholding their convictions. As to Mr Michurin, the Court notes that the applicant lodged his application more than six months even after the court decision of 20 February 2013 dismissing his supervisory complaint (see paragraph 31 above).

59. The Court finds that in the present case the six-month period should be calculated from the dates of the final decisions in the proceedings, in which the applicants challenged the refusals to open a criminal case, and not from the dates of the appellate courts’ decisions, upholding the applicants’ convictions.

60. The Court reiterates its long-standing position that the possibility of challenging a refusal to investigate complaints of ill-treatment before a court constitutes an effective remedy available in the Russian legal system in respect of such complaints (see Trubnikov v. Russia (dec.), no. 49790/99, 14 October 2003, and Belevitskiy v. Russia , no. 72967/01, §§ 54-67, 1 March 2007). The Court observes that Mr Lyupayev failed to use that remedy, instead raising the complaint of ill-treatment in the criminal proceedings against him (see paragraph 12 above). Mr Sharipov and Mr Michurin challenged their refusals but failed to lodge their applications within six months following the final decisions in those proceedings.

61. As regards the proceedings in the applicants’ criminal trials, the Court notes that the applicants did not in any concrete or substantiated manner raise the issue of the alleged ill ‑ treatment either during the trial, or in their statements of appeal, nor tried to challenge the conclusions of the investigating authorities. The issue of ill-treatment was raised mainly in the context of admissibility of evidence resulting from the alleged ill-treatment (see paragraphs 12, 21 and 32 above). Accordingly, the purpose of those proceedings was to find the applicants innocent or guilty of the criminal charges brought against them, rather than to attribute responsibility for the alleged ill-treatment or to afford redress for an alleged breach of Article 3 of the Convention (see Toteva v. Bulgaria (dec.), no. 42027/98, 3 April 2003, and Belugin v. Russia , no. 2991/06, § 55, 26 November 2019; and a contrario to cases where the trial courts took cognisance of the merits of such complaints by examining the evidence and engaging with the conclusions of the investigative authorities, such as Shlychkov v. Russia , no. 40852/05, § 53, 9 February 2016, with further references).

62. For these reasons, the Court holds that the applicants’ complaints under Articles 3 and 13 of the Convention concerning their alleged ill ‑ treatment and the lack of an effective investigation in that regard must be rejected for the failure to comply with the six-month time-limit within the meaning of Article 35 §§ 1 and 4 of the Convention.

(b) Ivanov v. Russia (no. 43396/17)

63. The Court observes that on 13 October 2017 the applicant lodged his complaint with the Court concerning ill-treatment to which he had been allegedly subjected in May 2002 and on four occasions in 2004 by police officers and the domestic authorities’ failure to carry out an effective investigation in that regard. The alleged events had taken place nearly eleven years before the applicant brought his complaint of ill-treatment before the national authorities in 2013 (see paragraph 39 above).

64. The Court cannot discern any objective reasons which could have prevented the applicant from bringing the matter to the attention of the domestic authorities earlier. The Court observes that the criminal proceedings, which were pending against the applicant at that time, ended in 2005 with his conviction (see paragraph 37 above). Since then the applicant has been serving his sentence. However, he did not claim that his detention was of any form of obstacle to lodge a formal complaint about his alleged ill ‑ treatment. Even assuming that the applicant indeed approached the authorities for the first time in 2011 (see paragraph 38 above), there was still six years of total inactivity between his conviction and his first criminal complaint about his alleged ill-treatment. The applicant did not advance any reason to explain his inactivity for such long period of time.

65. The Court further observes that following his complaint lodged with the investigation office in 2013, the authorities consistently refused to open a criminal case. In three subsequent years the authorities issued six decisions finding the applicant’s allegations unfounded (see paragraph 40 above). In view of the considerable lapse of time, the gaps resulting from the absence of the most basic investigative steps, which should have been taken shortly after the events complained of in order to secure evidence, could hardly be filled (see, mutatis mutandis , Finozhenok v. Russia (dec.), no. 3025/06, 31 March 2011). The repeated refusals to open an investigation into the alleged ill ‑ treatment contained neither a sufficiently tangible indication nor a realistic possibility of progress in the investigative measures (see Raush v. Russia (dec.), no. 17767/06, § 57, 22 March 2016, with further references).

66. In view of the above, the Court is convinced that the applicant must have become aware of the ineffectiveness of the investigation more than six months before he lodged his application with the Court on 13 October 2017.

67. In the light of the foregoing, the Court agrees with the Government that the applicant’s complaint under Articles 3 and 13 of the Convention concerning the lack of an effective investigation into the applicant’s allegations of ill-treatment was lodged out of time and finds that it should be rejected for non-compliance with the six-month time-limit within the meaning of Article 35 §§ 1 and 4 of the Convention.

68. The applicant complained that the expert who had carried out the chemical examination had been biased, as he had worked for the Drug Control Service. According to the applicant, the trial court unreasonably rejected his request to carry out a new examination. The Government submitted that the applicant’s allegations were unsubstantiated.

69. The Court observes that the applicant did not object to the conclusions of the examination report prior to the trial. The fact that the expert was a member of the police does not in itself justify fears that he would be unable to act with proper neutrality (see Shulepova v. Russia , no. 34449/03, § 62, 11 December 2008, with further references). To hold otherwise would place unacceptable limits on the possibility for courts to obtain expert advice (see Zarb v. Malta (dec.), no. 16631/04, 27 September 2005), having regard, in particular, to the technical skills that members of the Drug Control Service have in assessing the evidence. Furthermore, the applicant did not provide any evidence showing that the expert had performed his duties in a way which had not been impartial and objective. The applicant merely alleged that the expert could have forged the evidence without providing an objective justification of his grievances. The domestic courts at two instances examined and dismissed his allegations as unfounded (see paragraphs 20 and 21 above).

70. The Court finds therefore the applicant’s complaint under Article 6 of the Convention manifestly ill-founded and rejects it in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

71. The applicant complained that the trial court had relied on his confession statements which were allegedly obtained under duress, and that his trial had been thus unfair. The Government submitted that the applicant’s allegations of ill-treatment had proved to be unfounded and that his confession statements had been admissible evidence.

72. The Court notes that the main thrust of the applicant’s complaint is that he had been convicted on the basis of his confession statements allegedly obtained as a result of his ill-treatment following the arrest. The Court considers that the applicant failed to substantiate his allegations. It observes that the applicant was arrested on suspicion of murder. Upon his arrest, on 11 December 2010 the officers drew up a report indicating that during his convoy to the police station, the applicant had fallen and hit a car door as he had tried to remove the handcuffs (see paragraph 22 above). According to the applicant’s IVS medical notes, he had a haematoma under his right eye. No other injuries were found, and the applicant signed the medical report without making any objections (see paragraph 23 above). Also, he wrote an explanation confirming that he had sustained the haematoma when he had fallen and hit the car (ibid.).

73. The Court further observes that following the complaint made by the applicant’s wife about his alleged ill-treatment, without undue delays the investigator opened a pre-investigation inquiry, questioned the applicant and his wife, police and IVS officers about the circumstances of the applicant’s arrest and ordered his forensic examination (see paragraph 27 above). The forensic examination, carried out also without delays, did not reveal any injuries apart from the haematoma sustained by the applicant following his arrest (see paragraph 28 above). Referring to the conclusions of the forensic examination and the police report, and the applicant’s medical documents, the investigator concluded that the applicant’s allegations of severe beating and alleged use of electric shocks had not been supported by any evidence. The investigator’s conclusions were reviewed and upheld by the courts at two levels (see paragraph 30 above).

74. In such circumstances the Court cannot conclude that the applicant has made an “arguable claim” of his ill-treatment (see, by contrast, Aydın Çetinkaya v. Turkey , no. 2082/05, §§ 98-108, 2 February 2016, and Belugin , cited above, §§ 69 ‑ 79). Also, the Court notes that the applicant’s complaint was of rather general nature as he was mostly unsatisfied with the outcome of his criminal proceedings. The Court considers that it cannot be said that the applicant was convicted solely or mainly on the basis of his confession statements. His guilt was confirmed by other evidence in the case, such as confessions of his co-defendants, which the applicant did not challenge (see paragraph 32 above). The Court finds that the domestic courts carried out a detailed analysis of the admissibility of evidence which the applicant, represented by a lawyer, had the opportunity to challenge. Nothing in the case file indicates that the applicant’s confessions tainted the evidence as a whole and rendered the proceedings unfair.

75. It follows that the complaint under Article 6 of the Convention is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 21 October 2021.

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Olga Chernishova Peeter Roosma Deputy Registrar President

Appendix

No.

Application no.

Application title

Lodged on

Applicant Year of Birth Place of Residence Nationality

Represented by

1.

31231/06

Lyupayev v. Russia

05/06/2006

Roman Vyacheslavovich LYUPAYEV 1973 Yekaterinburg Russian

Aleksandr Georgiyevich SAVELYEV

2.

45914/06

Sharipov v. Russia

11/09/2006

Aybek Zaripovich SHARIPOV 1971 Dimitrovgrad Stateless

3.

71651/13

Michurin v. Russia

22/10/2013

Aleksandr Ivanovich MICHURIN 1975 Sorda Russian

4.

43396/17

Ivanov v. Russia

13/10/2017

Vladimir Vasilyevich IVANOV 1957 Startsevo Russian