THIRD SECTION

CASE OF DANILIN v. RUSSIA

(Application no. 39703/07)

JUDGMENT

STRASBOURG

7 December 2021

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

In the case of Danilin v. Russia,

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

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

Having regard to:

the application (no. 39703/07) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Yevgeniy Valeryevich Danilin (“the applicant”), on 25 June 2007;

the decision to give notice of the application to the Russian Government (“the Government”) and the parties’ observations;

Having deliberated in private on 9 November 2021,

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

INTRODUCTION

1. The application concerns the applicant’s alleged ill ‑ treatment and unrecorded detention at a police station, the lack of an effective investigation into his ill-treatment complaint, and his allegedly unfair conviction on drug-related offences that he had (according to the applicant) been incited by the police to commit.

THE FACTS

2. The applicant was born in 1986 and lives in Ulyanovsk.

3. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the then Representative of the Russian Federation to the European Court of Human Rights, and lately by Mr M. Vinogradov, his successor in that office.

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

5 . On 17 July 2006 the head of the Leninskiy District Department of the Interior of Ulyanovsk (“the RUVD”) authorised a “test purchase” in respect of a man called Yevgeniy who, according to “operational information”, had been selling heroin at a tram station in Ulyanovsk. According to the official account of events, one F. – an acquaintance of the applicant and a drug user who had been arrested shortly before the events – agreed to put a police agent in contact with the applicant. On the same date F., acting as a plant, asked the applicant to sell drugs to his “friend” (who was in reality an RUVD officer). As the applicant agreed, the officer accompanied by F. purchased heroin from him. On 14 August 2006 and then on two occasions on 25 August 2006 the applicant sold drugs to two different persons, including, on the latest occasion, during a test purchase operation.

6. At 2.30 p.m. on 25 August 2006 the applicant was arrested by the RUVD officers who handcuffed him and transferred him to the RUVD premises. According to the official account of the events, the applicant attempted to run away from the police but fell to the ground.

7 . At 2.50 p.m. the officers searched him. At 9.30 p.m. he was tested for drugs, and was then transferred back to the RUVD. According to the applicant, in the morning of 26 August 2006 two RUVD officers beat him in order to extract a confession from him. They handcuffed him and attached a dumbbell to the chain that connected the two handcuffs. An officer hit him in the head and a shoulder with an empty bottle, crushed a bottle over his knee and then forced him onto his knees and ordered him to gather up the pieces of glass. The officer beat him with a crowbar on the knees and on the right shoulder. Following the officers’ orders, the applicant then went into the corridor and squatted down, with the dumbbell attached to his handcuffs. The officers hit him in his body and legs.

8. At 7.40 p.m. on 26 August 2006 an investigator drew up the record of the applicant’s arrest, and then questioned him in a lawyer’s presence. One day later a court authorised the applicant’s detention on remand.

9 . On 27 August 2006 the applicant was examined upon his arrival at the local temporary detention facility (“the IVS”). According to the medical certificate, as well as the extract from the IVS custody record of the same day, he had multiple bruises on the right shoulder and the right hip; hematomas on the left shoulder and the left hip; an abrasion on the left forearm; and bruises on the soft tissue on the chest, arms and legs.

10 . According to forensic medical examination report no. 8593, dated 2 November 2006, the injuries detected on the applicant upon his arrival at the IVS could have been inflicted by a blunt solid object. The expert was unable to determine the origin of those injuries or the date of their infliction, as the IVS record had not been sufficiently detailed. The expert did not exclude that they could have been inflicted on 26 August 2006.

11 . As a follow-up to the applicant’s and his mother’s complaints, by two separate decisions dated 28 September and 14 December 2006 an investigator refused to bring criminal proceedings against the RUVD officers, having found no evidence of any ill-treatment. The investigator referred to: the IVS record of the applicant’s injuries and the forensic expert report; the statements of the arresting officers (who denied any use of force and maintained that the applicant had fallen to the ground during his arrest); statements by the acquaintance of the officers and the investigator denying having seen either any duress applied to the applicant or any injuries on him; a statement by one of the attesting witnesses, according to which the applicant had run away from the police and had fallen to the ground during his arrest. The refusals were not appealed against.

12 . The applicant complained to the trial court about his alleged ill ‑ treatment and unrecorded detention between 25 and 26 August 2006. He argued that he would never have agreed to help F. to acquire drugs on 17 July 2006, but that F. had begged for his help; and that he had not sold drugs but had acted as an intermediary between F. and the dealer.

13 . The RUVD officers testified that their decision to mount a test purchase operation of 17 July 2006 had been based on operational information received both from drug users who had “provided the dealers’ telephone numbers”, and from “other sources” (including “several detained persons”), whom they refused to identify. As regards the alleged beatings on 25-26 August 2006, the trial court heard the testimony of the two arresting officers and one of the attesting witnesses who stated the applicant had started running away and had fallen to the ground. They denied any use of “special means” during the arrest or subjecting the applicant to any duress on the RUVD premises. They acknowledged that he had stayed there overnight. The court heard the applicant’s mother who submitted that she had been unable to establish his whereabouts until 28 August 2006, and that she had seen bruises on him on that date.

14 . On 7 February 2007 the Leninskiy District Court of Ulyanovsk convicted the applicant of illicit possession of drugs and on four counts of attempting to sell drugs (on 17 July and 14 and 25 August 2006), and sentenced him to six years’ imprisonment. The conviction in respect of the episode of 17 July 2006 was based on the officers’ trial statements and the documents concerning the test purchase. With reference to the pre ‑ investigative inquiries, the court deemed the applicant’s duress allegations to be unfounded. It decided that the record of his injuries made in the IVS could not be deemed to constitute proof of any duress, as the injuries had been inflicted during the arrest as a result of officers’ lawful actions.

15 . Following an appeal by the applicant, the Ulyanovsk Regional Court established in its judgment of 28 March 2007 [1] that the applicant had been arrested on 25 August 2006, ordered that that the time spent by him in detention since that date be counted toward his term of imprisonment, and upheld the remainder of the trial court’s findings.

16 . By a separate ruling ( частное определение ) of 28 March 2007 the Regional Court found that, even though the applicant had been arrested on 25 August 2006 and had remained on the RUVD premises overnight, his arrest had been recorded more than one day after his actual apprehension, in breach of a three-hour time-limit set out in the Code of Criminal Procedure.

17 . On 14 May 2013 the Presidium of the Regional Court quashed the appeal judgment and remitted the case to the appellate court for new examination, citing that court’s failure to examine the inadmissibility plea in respect of the evidence relating to the episodes of 14 and 25 August 2006.

18 . On 3 June 2013 the Regional Court examined anew the applicant’s grounds for appeal. The court upheld as thorough and well-reasoned the lower court’s findings as regards the first drug sale (on 17 July 2006), and rejected the applicant’s entrapment plea. According to the court, the applicant’s guilt had been proved by the concordant statements of the RUVD officers, who had received information about his involvement in drug trafficking from “several sources”. In the court’s view, the applicant had already planned to sell drugs, and the officers’ statements (together with their references to having received unspecified operational information) had excluded any possibility that they had incited him to commit the crime in question. On the other hand, the appellate court noted that as a result of the test purchase of 17 July 2006 the information about the applicant’s involvement in drug trafficking had already been confirmed, and therefore, there had been “no need to conduct further operational activities”. The court decided that the conviction in respect of the drug sales on 14 and 25 August 2006 should be excluded from the sentence. The court also quashed his conviction for the illicit storage of drugs, acknowledged the applicant’s right to rehabilitation in this part and reduced his term of imprisonment to four years of detention. The court accepted that the applicant had been arrested on 25 August 2006. Finally, the appellate court endorsed the trial court’s conclusion that the applicant’s injuries had been inflicted during the arrest.

THE LAW

19. The applicant complained under Articles 3 and 13 of the Convention that he had been ill-treated by the RUVD officers, and that the domestic investigation in respect of his ill-treatment complaint had been ineffective. Articles 3 and 13 read as follows:

Article 3

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

Article 13

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

20. The Government submitted that the applicant had not lodged a complaint under Article 125 of the Code of Criminal Procedure against any of the two refusals to open criminal proceedings.

21. The applicant maintained his complaint.

22. The Court notes that the applicant raised the ill-treatment issue in the course of the criminal proceedings against him and clearly stated to the courts his disagreement with the conclusion of the prosecutor’s inquiries. Courts at two levels of jurisdiction took cognisance of the merits of the complaint by interviewing the witnesses and by examining the inquiry material and the medical evidence, and made their own findings as to the origin of the injuries. As the courts had already embarked on an analysis of the applicant’s complaints, the Court does not find it unreasonable that he did not lodge the same complaint with the same courts (see Akulinin and Babich v. Russia, no. 5742/02 , § 32, 2 October 2008).

23. Accordingly, the Court dismisses the non-exhaustion objection, and finds that the complaint is not manifestly ill ‑ founded, within the meaning of Article 35 § 3 (a) of the Convention, and is not inadmissible on any other grounds. It must therefore be declared admissible.

24. The applicant maintained his complaint.

25. The Government submitted that the domestic inquiries had not revealed any evidence of ill-treatment.

26. The Court observes that after the applicant had spent more than thirty-four hours in police custody, multiple injuries had been recorded on his body (see paragraphs 9-10 above). The Court considers that his injuries could arguably have resulted from the violence allegedly suffered by him at the hands of the RUVD officers. These factors are sufficient to give rise to a presumption in favour of his account of events and to satisfy the Court that his allegations of police violence were credible.

27. However, his credible allegations of ill ‑ treatment on the premises of the RUVD were summarily rejected by two refusals to initiate criminal proceedings, each time issued as a result of the pre ‑ investigation inquiries, mainly on the basis of the statements of the police officers denying any ill ‑ treatment. The findings made in those refusals were accepted by the courts before which the criminal proceedings against the applicant were conducted. The Court reiterates that the mere carrying out of a pre ‑ investigation inquiry under Article 144 of the Code of Criminal Procedure 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 (see Lyapin v. Russia , no. 46956/09, §§ 129 and 132-36, 24 July 2014). The Court has no reason to hold otherwise in this case. It further notes that a two-month delay in conducting the forensic medical examination, as well as insufficiency of the information provided to the expert, made it impracticable for the expert to establish the origin of the applicant’s injuries.

28. As regards the authorities’ argument that the applicant had fallen to the ground during the arrest, the domestic findings contain no explanation as to how and why one or several falls in the course of the applicant’s arrest could have caused multiple injuries to various parts of his body (see paragraph 9 above). In any event, given that that explanation constituted the only conclusion of an inquiry whose superficial nature fell short of the requirements of Article 3, the Court finds that it 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 applicants’ account of events, which it therefore finds established in so far as confirmed by evidence. Taking into account the nature of the injuries, the Court finds that the police subjected the applicant to inhuman and degrading treatment.

29. 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. Accordingly, it is not necessary to examine separately the merits of the complaint under Article 13.

30. The applicant complained under Article 5 of the Convention about his unrecorded detention for a period of about twenty-nine hours between 25 and 26 August 2006. The relevant part of Article 5 provides as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law ...”

31 . The Government conceded that the applicant’s detention had not been in compliance with the domestic law but noted that the authorities had acknowledged the unlawfulness. They argued that the applicant had therefore ceased to be a victim of the alleged violation and had failed to exhaust the domestic remedies (a claim for damages, an appeal against the arrest record or the refusal to open criminal proceedings).

32. The applicant maintained his complaint.

33. The Court notes that the appellate court not only reached a finding regarding the date of the applicant’s actual apprehension, but also, by a separate ruling, established that his detention for more than twenty-four hours prior to the drawing up of the arrest record had been in breach of the domestic procedural requirements (see paragraphs 15-16 above). The appellate court thus examined the substance of the claim and acknowledged the irregular nature of the applicant’s detention (contrast Fortalnov and Others v. Russia , nos. 7077/06 and 12 others, § 66, 26 June 2018). The Court therefore rejects the non-exhaustion objection in this part.

34. In so far as the Government claimed that the applicant had ceased to be a victim of the alleged violation – and as regards their assertion that he could have sought compensation for his unrecorded detention – the Court rejects it for the same reason as in Fortalnov and Others (cited above, § 66). In any event, it was not demonstrated by the Government – for instance, by means of reference to examples of relevant domestic case-law – that a claim for compensation for unlawful detention whose unlawfulness had been established by a “separate ruling” would have any prospects of success.

35. The Court accordingly dismisses the Government’s objections. It finds that the applicant’s complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.

36. It was established by the appellate court – and also acknowledged by the Government – that the applicant was arrested at 2.30 p.m. on 25 August 2006 and unlawfully detained at the RUVD until his arrest was officially recorded at 7.40 p.m. on 26 August 2006. That unrecorded detention left him completely at the mercy of those holding him, putting his personal security at risk, and rendering him vulnerable to ill ‑ treatment (see Fartushin v. Russia , no. 38887/09, §§ 50, 53-54, 8 October 2015). It follows that there has been a violation of Article 5 § 1 of the Convention.

37. The applicant complained that he had been unfairly convicted of drug offences which he had been incited by the police to commit, in violation of Article 6 of the Convention, which reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

38. The Government argued that the applicant was no longer a victim of the alleged violations in so far as the test purchases of 14 and 25 August 2006 were concerned. In respect of the remaining test purchase (of 17 July 2006), they argued that the covert operation had not involved entrapment, and that the courts had analysed the relevant circumstances in detail.

39. The applicant maintained his complaint.

40 . The Court notes that during the re ‑ examination proceedings, the courts reiterated the reasoning of the first ‑ instance court regarding the test purchase of 17 July 2006 (see paragraph 18 above) which remained the basis for the applicant’s conviction. They did not examine in detail the applicant’s essential arguments – namely, that the police had had no valid reasons to mount the undercover operations, and that on 17 July 2006 they had incited him to participate in a drug sale. Thus, it cannot be said that the plea of incitement was adequately addressed and that the courts took the necessary steps to eradicate the doubts as to whether or not the applicant had committed the offence as a result of incitement by an agent provocateur (see, by way of example of a similar situation, Ulyanov and Others v. Russia [Committee] , nos. 22486/05 and 10 others, §§ 19 ‑ 21, 9 February 2016).

41. Accordingly, the Court dismisses the Government’s objection and finds that the applicant remains a victim of the alleged violation of Article 6 of the Convention.

42. The Court finds that the complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention, and that it is not inadmissible on any other grounds. It must therefore be declared admissible.

43. The Court reiterates that absence in the national legal system of a clear and foreseeable procedure for authorising test purchases of drugs remains a structural problem which exposes applicants to an arbitrary action by the State agents and prevents the domestic courts from conducting an effective judicial review of their entrapment pleas (see Veselov and Others v. Russia , nos. 23200/10 and 2 others, § 126, 2 October 2012). The Court has consistently found a violation of Article 6 § 1 of the Convention on account of the deficiency in the existing procedure for the authorisation and administration of test purchases of drugs in Russia and the courts’ failure to adequately address pleas of entrapment by taking the steps necessary to uncover the truth and to eradicate doubts as to whether such persons committed the offence as a result of incitement by an agent provocateur (see Veselov and Others , cited above, §§ 126 ‑ 28, and Lagutin and Others v. Russia , nos. 6228/09 and 4 others, §§ 124 ‑ 25, 24 April 2014). Having regard to its case-law, the circumstances of the case, and its own findings in paragraph 40 above, the Court does not see any reason to reach a different conclusion in respect of the present application.

44. In the present case it was incumbent on the authorities to dispel doubts as to whether they had had a good reason for mounting the operation of 17 July 2006 and to demonstrate that they had been “essentially passive” (see, for a summary of the relevant principles, Bannikova v. Russia , no. 18757/06, §§ 37-50, 4 November 2010, and Kuzmina and Others v. Russia, nos. 66152/14 and 8 others, §§ 87-90, 20 April 2021). However, the police immediately proceeded with the test purchase, without any attempt to verify the unspecified “operational information” (see paragraph 5 above) or to consider other means of investigating the applicant’s alleged criminal activity. No additional details had been disclosed during the trial, either (see paragraphs 13-14 and 18 above). Therefore, it cannot be said that the preliminary information was “verifiable”, that the State agents carrying out the undercover activity remained within the limits of “essentially passive” behaviour, or that the domestic courts ensured that all information relevant to the examination of the entrapment was put openly before them or tested in an adversarial procedure (see Kuzmina and Others cited above, §§ 101-03). For these reasons, the Court considers that the criminal proceedings against the applicant were incompatible with the notion of a fair trial.

45. There has therefore been a breach of Article 6 § 1 of the Convention.

46. The applicant complained under Article 6 §§ 1 and 3(c) and (d) of the Convention about admission of his self-incriminating statements in respect of the events of 25 August 2006, and about a failure to question F. and a certain person allegedly involved in drug sale of 25 August 2006. Having regard to its above findings, the Court considers that there is no need to give a separate ruling regarding these complaints.

47. Lastly, the applicant raised additional complaints with reference to Articles 6, 13 and 17 of the Convention. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that the complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or the Protocols thereto, and rejects them as manifestly ill ‑ founded, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

48. 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.”

49. The applicant claimed 30,000 euros (EUR) in respect of non ‑ pecuniary damage.

50. The Government contested the claim as excessive and ill-founded.

51. Having regard to the nature of the violations found and its case-law, the Court awards the applicant EUR 26,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on the applicant, and rejects the remainder of his claims.

52. The applicant also claimed 30,000 roubles (EUR 684) for costs and expenses – namely services provided by a lawyer relating to the applicant’s alleged representation before the Court.

53. The Government disputed the claim as unsubstantiated.

54. The Court notes the applicant failed to submit either a representation agreement or a payment receipt or any other proof that the expenses claimed had been actually incurred. Moreover, the applicant prepared his observations himself. Regard being had to the documents in its possession and to its case-law, the Court rejects the claim for costs and expenses.

55. 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,

(a) that the respondent State is to pay the applicant, within three months, EUR 26,000 (twenty-six thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

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

Done in English, and notified in writing on 7 December 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova Peeter Roosma Deputy Registrar President

[1] On 9 July 2007 the Ulyanovsk Regional Court rectified the appellate judgment of 28 March 2007 in order to correct a clerical error in the first instance court’s name.