THIRD SECTION

CASE OF KONYAYEV v. RUSSIA

( Application no. 9759/09 )

JUDGMENT

STRASBOURG

26 March 2019

This judgment is final but it may be subject to editorial revision.

In the case of Konyayev v. Russia ,

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

Alena Poláčková , President, Dmitry Dedov , Jolien Schukking , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having deliberated in private on 5 March 2019 ,

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

PROCEDURE

1. The case originated in an application (no. 9759/09) 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 stateless person, Mr Sergey Nikolayevich Konyayev (“the applicant”), on 31 December 2008.

2. The applicant was represented by Mr D.A. Yershov , a lawyer practising in Ryazan. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin , the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin .

3. On 29 September 2016 notice of the complaints concerning the applicant ’ s alleged ill-treatment in police custody and the authorities ’ failure to carry out an effective investigation into his complaints were given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1969 and is currently serving a prison sentence.

A. The applicant ’ s arrest and alleged ill-treatment in police custody

5. At around 5 a.m. on 13 May 2006 the applicant was arrested on suspicion of robberies by officers of the police unit for combating organised crime in the Ryazan region ( УБОП при УВД по Рязанской области – “the organised crime unit”), assisted by officers of the special rapid response unit of the Ryazan region ( СОБР (ОМСН) УВД Рязанской области – “the rapid response unit”).

6. The applicant ’ s account of subsequent events is the following. He was taken to the Moskovskiy district police station of Ryazan, where the (unnamed) police officers beat him for an hour, forcing him to confess to carrying weapons. He was then taken to the organised crime unit, located at a different address, where police officers N.A. and I.O. physically assaulted him and subjected him to electric shocks in a gym. Two other (unnamed) police officers of the rapid response unit then continued physically assaulting him, chained his handcuffs to some exercise equipment, pinched his nose and sprayed tear gas into his mouth to force him to confess to robberies and assaults. On the evening of 13 May 2006 the applicant was taken to the Zheleznodorozhnyy district police station of Ryazan.

7. At 7.40 p.m. on 13 May 2006 investigator A.A. from the investigation unit of the Zheleznodorozhnyy district police department drew up a record of the applicant ’ s arrest. The record indicates that the applicant was arrested at 7 p.m. that day.

8. According to the applicant, during his time at the Zheleznodorozhnyy police station, he was allegedly driven to the organised crime unit several more times and subjected to various forms of ill-treatment. This allegedly included beatings, electric shocks and having a plastic bag placed over his head so that he lost consciousness.

9. At 2 p.m. on 15 May 2006 the Zheleznodorozhnyy District Court of Ryazan extended the applicant ’ s arrest until 6 p.m. on 16 May 2006.

10. According to the applicant, on the evening of 15 May 2006 he was physically assaulted again at the Zheleznodorozhnyy police station by an unknown police officer, who tried to force him to confess to different unsolved crimes concerning weapons, thefts and drugs.

11. On 16 May 2006 the District Court remanded the applicant in custody. He was placed in a Ryazan pre-trial detention facility (IZ 62/1).

B. The applicant ’ s injuries allegedly received as a result of police ill ‑ treatment

12. According to records from IZ 62/1 dated 16 May 2006, on his arrival at 4.20 p.m. that day the applicant was examined by a medical assistant ( feldsher ). He had the following injuries: ( i ) multiple abrasions covered in brown scabs on his forehead and the back and top of his head; (ii) swelling on the inner surface of the lips; (iii) multiple large purple and blue bruises on his chest, abdomen, left side, forearms and shoulders; (iv) purple and yellow bruises on his knee joints; and (v) abrasions covered in brown scabs on the back of the toes of his left foot.

C. Pre-investigation inquiries and refusals to institute criminal proceedings into the applicant ’ s alleged ill-treatment

1. First set of pre-investigation inquiries

(a) Investigative committee

13. On 18 May 2006 the material concerning the applicant ’ s injuries was forwarded from the pre-trial detention facility to the Zheleznodorozhnyy district prosecutor ’ s office of Ryazan. It was registered on 25 May 2006.

14. On 25 May 2006 the applicant lodged a complaint with the Zheleznodorozhnyy district prosecutor against the police officers, requesting that they be prosecuted. His complaint was registered that day.

15. On 30 May 2006 the material in both files concerning the applicant ’ s alleged ill-treatment were joined.

16. On 5 June 2006, 20 December 2006 and 10 June 2008 officials at the prosecutor ’ s office, and later the Zheleznodorozhnyy inter-district investigation unit of the investigative committee for Ryazan (“the investigative committee”) issued refusals to initiate criminal proceedings against the police officers.

17. The two earlier refusals were overruled by the higher authority within the investigative committee on 25 September 2006 and 9 June 2008 respectively, and the investigation authorities were ordered to carry out additional inquiries. The most recent refusal of 10 June 2008 was issued in accordance with Article 24 § 1 (2) of the Code of Criminal Procedure (“the CCrP ”) on the grounds that none of the elements of crimes under Articles 285 and 286 of the Criminal Code (abuse of powers) were present in respect of the police officers ’ actions.

18. Police officer A.S. from the organised crime unit stated in an explanation of 8 June 2006 that on 13 May 2006 eight officers from the rapid response unit had carried out the applicant ’ s arrest. As the applicant and three other individuals were armed and refused to get out of their car, physical force (unspecified “sambo” wrestling techniques) and special devices (handcuffs) were used on them. A.S. could not remember whether those arrested had received any injuries. According to him, they were then taken to the Moskovskiy police station. A.S. referred to a report on the arrest.

19. According to the report on the arrest, signed by the head of division no. 1 of the rapid response unit on 13 May 2006, the arrest operation had been carried out between 5.00 a.m. and 5.30 a.m. on 13 May 2006 by eight officers from the rapid response unit. The applicant and four other suspects had been in a car. Two guns had been found during the search. It was stated in the report that the police officers had used “physical force” and handcuffs, and that “no incidents had happened”.

20. Police officers of the rapid response unit (T.D., M.A., O.S., K.D., K.A. and Ch.D .) stated that they had carried out the applicant ’ s arrest at around 6 a.m. on 13 May 2006. They arrested four individuals (including the applicant), who all resisted arrest. They used physical force and special devices (handcuffs).

21. Police officer P.V. from the organised crime unit stated that, after the applicant ’ s arrest in the early hours of 13 May 2006, he had searched him in the presence of attesting witnesses. He denied subjecting him to any physical or verbal abuse.

22. Police officers R.A. and B.A. of the Moskovskiy police denied subjecting the applicant to any ill-treatment.

23. Investigator A.A. stated in an (undated) explanation that the applicant had been arrested in the early hours of 13 May 2006 by police officers of the organised crime unit. During his arrest the applicant resisted, and physical force was used on him. A.A. did not know whether the applicant had been subjected to any ill ‑ treatment by the police officers of the Zheleznodorozhnyy police station. At 7 p.m. on 13 May 2006 the applicant was taken to his room. A.A. arrested him on suspicion of organised robbery pursuant to Article 91 of the CCrP . A.A. denied subjecting the applicant to any physical or psychological pressure.

24. In its most recent refusal to open a criminal case against the police officers dated 10 June 2008, the investigative committee briefly concluded that the applicant ’ s injuries had resulted from the use of force and special devices (handcuffs) by police officers of the rapid response unit during the applicant ’ s arrest, as the applicant had resisted arrest.

(b) Judicial review of the investigators ’ decisions

25. Relying on Article 125 of the CCrP , the applicant appealed against two of the refusals to open a criminal case against the police officers to the courts, namely those of 20 December 2006 and 10 June 2008.

26. On 10 June 2008 the Zheleznodorozhnyy District Court of Ryazan ruled that the applicant ’ s appeal against the refusal of 20 December 2006 should not be examined, and terminated the proceedings on the grounds that on 9 June 2008 the investigative committee had already revoked the refusal.

27. On 16 December 2008 the same court dismissed the applicant ’ s appeal against the refusal of 10 June 2008, holding that it was lawful and well-grounded. In particular, the court noted that the applicant ’ s arguments concerning his alleged ill-treatment in police custody from 13 to 15 May 2006 had been examined during his criminal trial and on appeal and dismissed as unconfirmed. On 5 February 2009 the Ryazan Regional Court fully endorsed that decision on appeal.

2. Second set of pre-investigation inquiries

28. On 26 May 2006 a copy of the applicant ’ s complaint of ill-treatment was forwarded to the Sovetskiy district prosecutor ’ s office of Ryazan for a separate inquiry in relation to the police officers of the organised crime unit.

29. On 2 June 2006 and 24 February 2009 respectively, in accordance with Article 24 § 1 (1) of the CCrP , officials at the Sovetskiy prosecutor ’ s office and Moskovskiy inter-district investigation unit of the investigative committee for Ryazan issued refusals to initiate criminal proceedings against the police officers as none of the elements of crimes under Articles 285 and 286 of the Criminal Code (abuse of powers) were present in respect of their actions. On 25 December 2008 the first refusal was overruled by the higher authority within the investigative committee as unsubstantiated, and the investigation authorities were ordered to carry out an additional inquiry.

30. In its most recent refusal to open a criminal case against the police officers dated 24 February 2009, the investigative committee briefly noted the outcome of the applicant ’ s criminal case and concluded that there was no objective information showing that any crimes had been committed against the applicant by the police officers.

3. Third set of pre-investigation inquiries

(a) Investigative committee

31. In December 2006 and May 2008 respectively the applicant lodged two more complaints with the Prosecutor General ’ s Office and the investigative committee against the police officers, investigators and other State officials, requesting that they be prosecuted for unlawful arrest, detention and abuse of power in connection with the events of 13 to 16 May 2006 and his criminal case.

32. On 16 January 2007, 12 April 2007 and 26 May 2008, officials at the Zheleznodorozhnyy prosecutor ’ s office and the Zheleznodorozhnyy inter ‑ district investigative committee issued refusals to initiate criminal proceedings against the police officers.

33. The two earlier refusals were overruled by the higher authority within the investigative committee on an unspecified date and 14 May 2008 respectively, and the investigation authorities were ordered to carry out additional inquiries. The most recent refusal of 26 May 2008 was issued in accordance with Article 24 § 1 (2) of the CCrP , because none of the elements of crimes under Articles 285, 286 and 301 of the Criminal Code (abuse of powers and unlawful arrest and detention respectively) were present in respect of the police officers ’ actions, as the applicant ’ s allegations had not been confirmed in the course of the inquiry.

(b) Judicial review of the investigators ’ decisions

34. Under Article 125 of the CCrP , the applicant appealed against all three of the refusals mentioned above.

35. On 2 April 2007 the Zheleznodorozhnyy District Court of Ryazan examined the applicant ’ s appeal against the refusal of 16 January 2007 and concluded that it had been unlawful and unsubstantiated because not all of the applicant ’ s arguments had been examined concerning, in particular, his allegedly unlawful arrest and detention. The investigation authority was ordered to rectify those deficiencies. It appears that the refusal was subsequently overruled by the investigative committee, and an additional inquiry was ordered.

36. On 14 May 2008 the same court ruled that the applicant ’ s appeal against the investigator ’ s refusal of 12 April 2007 should not be examined, and terminated the proceedings on the grounds that on 14 May 2008 the investigative committee had already overruled it.

37. On 10 December 2008 the court dismissed the applicant ’ s appeal, holding that the refusal of 26 May 2008 was lawful and well-grounded. It also endorsed the findings of the trial and appellate courts in the applicant ’ s criminal case. On 22 January 2009 the Ryazan Regional Court upheld that decision on appeal.

D. Criminal proceedings against the applicant

38. On 28 April 2008 the Ryazan Regional Court convicted the applicant of organised banditry, illegal possession of firearms and armed robbery, and sentenced him to fifteen years ’ imprisonment and a fine.

39. At trial, the applicant complained that the investigative measures carried out during the preliminary investigation of his criminal case had been unlawful, and that he had been coerced into making a confession.

40. The trial court dismissed the applicant ’ s allegations as unconfirmed. It referred mainly to the results of the pre-investigation inquiry into the applicant ’ s allegations of ill ‑ treatment, which had resulted in the (subsequently overruled) refusal of 20 December 2006 to open a criminal case against the police officers.

41. On 7 August 2008 the Supreme Court of Russia upheld that judgment on appeal, finding the conclusions of the trial court duly reasoned.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

42. The applicant complained that he had been subjected to ill-treatment by the police and that the State had failed to conduct an effective investigation into his complaints. He relied on Article 3 of the Convention, which reads as follows:

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

43. The Government argued that the applicant ’ s injuries had been inflicted as a result of the lawful use of force by the police during the applicant ’ s arrest in order to overcome the applicant ’ s resistance and to prevent his escape. Such force had not attained the threshold for it to be considered inhuman or degrading treatment.

44. The Government underlined that the applicant had not complained about his alleged ill-treatment to the investigator during his arrest on 13 May 2006, to his lawyer and the investigator during his questioning as a suspect the next day, to the judge at the hearing concerning his remand in custody on 16 May 2006 or to the doctor of IZ 62/1 when he was placed there. He had only lodged his complaint on 25 May 2006. Furthermore, he should have received more serious injuries as a result of the ill-treatment described by him. However, no evidence of his being suffocated by a plastic bag or subjected to electric shocks had been found. The applicant had not suffered even minor harm to his health.

45. The Government submitted no observations in relation to the State ’ s obligation to carry out an effective investigation, stating that the materials of the pre ‑ investigation inquiry into the applicant ’ s alleged ill-treatment had been destroyed on 12 March 2010 due to the expiration of the time-limit for their storage. They argued that it would be incorrect for the Court, which had delayed the examination of the application, to carry out its assessment on the basis of the documents submitted by the applicant. They noted that the applicant ’ s allegations of ill-treatment had been carefully examined by the domestic courts in the proceedings initiated by the applicant to appeal against the investigating authority ’ s decisions and in the criminal proceedings against him.

46. The applicant submitted that he had been unable to lodge his criminal complaint earlier because before his placement in IZ 62/1 he had been under the full control of the police officers who had ill ‑ treated him, fearing for his life and risking physical retaliation. He had needed time to recover after the violence and to consult his lawyer.

47. The applicant noted that according to the police officers ’ explanations, his resistance during his arrest had only manifested itself in the refusal to come out of the car. He had not attempted to flee. The injuries which had been found on him at IZ 62/1 had not been received during his arrest. They had been inflicted on him as a result of the police violence during more than fourteen hours until his official arrest by the investigator and during the period which had followed until his placement in IZ 62/1. The applicant argued that he had been subjected to inhuman and degrading treatment.

A. Admissibility

48. 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.

B. Merits

49. The Court observes that after spending three days in police custody the applicant was found to have sustained multiple abrasions and bruises, as recorded by the medical assistant of detention facility IZ 62/1, in which he was placed on 16 May 2006 (see paragraph 12 above). The Court considers that the injuries could arguably have resulted from blows allegedly delivered to the applicant ’ s body by police officers (see, as regards the assessment of bruises and abrasions by forensic medical experts in police ill-treatment cases, Ksenz and Others v. Russia , nos. 45044/06 and 5 others, §§ 14, 74, 81 and 96, 12 December 2017 , and Sergey Ryabov v. Russia , no. 2674/07, §§ 15 and 40, 17 July 2018).

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

51. The fact that during fourteen hours after his arrest the applicant was held in police custody without his arrest being recorded and without being able to avail himself of access to a lawyer and other rights of suspects in criminal proceedings, attests to the applicant ’ s particular vulnerability vis ‑ à ‑ vis the police officers. It weighs heavily in favour of the applicant ’ s account of events and makes the presumption of the State ’ s responsibility for injuries occurring during the police custody stronger (see Olisov and Others v. Russia , nos. 10825/09 and 2 others, § § 74-79, 2 May 2017, and Sitnikov v. Russia , no. 14769/09, §§ 31-35, 2 May 2017).

52. The applicant submitted to the Court sufficiently detailed information about the investigating authorities ’ response to his complaints of police ill-treatment, the authenticity of which the Court has no reason to doubt. Contrary to the Government ’ s view (see paragraph 45 above), that information, together with the national courts ’ decisions taken in the case, can serve a basis for the Court ’ s assessment of whether the authorities have carried out an effective investigation into the applicant ’ s serious allegations of police ill-treatment.

53. As regards the Government ’ s argument concerning the delay in the submission of the criminal complaint by the applicant (see paragraph 44 above), it is entirely conceivable that this could be due to the fact that the applicant was intimidated after the ill-treatment, being under the full control of those police officers who had ill ‑ treated him (see paragraph 46 above).

54. In any event, the authorities were alerted to the possibility that violence had been used against the applicant by 16 May 2006, when the applicant ’ s multiple injuries were recorded at the pre-trial detention facility. Thus, even without an express complaint from the applicant, a duty to investigate had already arisen at that stage. This is so because Article 3 of the Convention requires an official investigation in cases where there are sufficiently clear indications that ill ‑ treatment might have occurred (see Velev v. Bulgaria , no. 43531/08, § 60, 16 April 2013). Furthermore, the pre ‑ detention facility had in fact communicated the information concerning the applicant ’ s injuries to the prosecutor ’ s office (see paragraph 13 above).

56. 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 v. Russia , no. 46956/09, § 129, 24 July 2014). The investigators ’ several decisions refusing to open a criminal case were annulled by the investigating authorities as unsubstantiated and a fresh inquiry was ordered. Their most recent decisions maintained the same findings as the earlier decisions. In examining the investigative committee ’ s decision of 10 June 2008 in the proceedings under Article 125 of the Code of Criminal Procedure, the domestic courts relied on the dismissal of the applicant ’ s allegations of police ill-treatment by the trial court in the criminal proceedings against him (see paragraphs 27-28 above), while the trial court in doing so had relied on the subsequently overruled refusal to institute criminal proceedings against the police officers (see paragraphs 40 ‑ 41 above). The domestic courts thus missed the opportunity to assess whether the investigation had complied with the requirements of Article 3 of the Convention in order to provide the applicant redress at the domestic level.

57. 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 ( ibid., §§ 129 and 132-36).

58. The Court has no reason to hold otherwise in the present case, which involves credible allegations of ill-treatment. It finds that the State has failed to carry out an effective investigation into the applicant ’ s allegations of police ill-treatment, as required by Article 3 of the Convention.

59. Given that the Government ’ s explanations that the applicant ’ s injuries had been the result of the lawful use of force by the police during his arrest were provided as a result of the superficial domestic inquiries ’ falling short of the requirements of Article 3 of the Convention, the Court finds that they cannot be considered satisfactory or convincing. It holds that the Government have failed to discharge their burden of proof and produce evidence capable of casting doubt on the applicant ’ s account of events, which it therefore finds established, insofar as it is supported by evidence (see Olisov and Others , cited above, §§ 83-85, and Ksenz and Others , cited above, § § 102 ‑ 04).

60. Having regard to the material in the case-file, the Court finds that the police subjected the applicant to inhuman and degrading treatment (see Gorshchuk v. Russia , no. 31316/09, § 33, 6 October 2015; Aleksandr Andreyev v. Russia , no. 2281/06, §§ 56 ‑ 62, 23 February 2016; and Leonid Petrov v. Russia , no. 52783/08, §§ 65-76, 11 October 2016).

61. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 3 of the Convention under its substantive and procedural limbs.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

62. The applicant complained that the authorities had failed to carry out an effective investigation into his alleged ill-treatment in police custody in breach of 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.”

63. The Government contested that argument.

64. 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.

65. 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 separately under Article 13 (see Olisov and Others , cited above, § 92).

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

66. 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

67. The applicant claimed 80,000 euros (EUR) in respect of non ‑ pecuniary damage suffered by him as a result of a violation of his rights guaranteed by Article 3 of the Convention. He claimed EUR 20,000 in respect of non-pecuniary damage related to the alleged violation of Article 13 of the Convention.

68. The Government stated that any award of just satisfaction should be made in accordance with the Court ’ s case-law.

69. The Court awards the applicant EUR 25,000 in respect of non ‑ pecuniary damage.

B. Costs and expenses

70. The applicant also claimed 95,000 Russian roubles for the costs of legal services incurred before the Court.

71. Regard being had to the documents in its possession and to its case ‑ law, the Court considers it reasonable to award the sum of EUR 1,564 covering costs for the proceedings before the Court, to be paid into the bank account of the applicant ’ s representative.

C. Default interest

72. 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 concerning the applicant ’ s alleged ill-treatment in police custody and the authorities ’ failure to carry out an effective investigation into his complaints admissible;

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

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

4. Holds

(a) that the respondent State is to pay the applicant, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

( i ) EUR 25,000 (twenty-five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,564 (one thousand five hundred and sixty-four euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid into the bank account of the applicant ’ s representative;

(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;

5. Dism isses the remainder of the applicant ’ s claim for just satisfaction.

Done in English, and notified in writing on 26 March 2019 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Alena Poláčková Deputy Registrar President