THIRD SECTION

DECISION

Application no. 24651/06 Sergey Nikolayevich TIKHOMIROV against Russia

The European Court of Human Rights (Third Section), sitting on 23 November 2021 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. 24651/06) against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 19 May 2006 by a Russian national, Mr Sergey Nikolayevich Tikhomirov, who was born in 1978 and is detained in Kharp (“the applicant”) who had been granted legal aid and was represented by Ms O. Preobrazhenskaya, a lawyer practising in Moscow;

the decision to give notice of the complaints under Articles 3, 6 § 1 and 13 of the Convention to the Russian Government (“the Government”), represented 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; and to declare inadmissible the remainder of the application;

the parties’ observations.

Having deliberated, decides as follows:

SUBJECT-MATTER OF THE CASE

1. The case mainly concerns the applicant’s alleged ill-treatment by police officers and inmates and the use by the trial court of his statements allegedly obtained under duress.

2. The applicant was put on a wanted list in connection with several robberies. On 20 November 2004 police officers of the Organised Crime Unit of the Tyumen Region (“the UBOP”) arrested him in Tyumen on suspicion of an attempted murder of a policeman committed three days earlier. The officers used force to overcome his resistance. A knife was seized from him.

3 . The applicant was taken to the UBOP premises in Tyumen. He initially claimed that the officers had beaten him there, and then changed his account several times adding that the officers had used electric shocks, a gas mask and a plastic bag, and that he had remained handcuffed. On the same date his arrest was recorded. Next morning the applicant made several “surrender and confession statements”. No lawyer was present. Then the applicant was transferred to Yekaterinburg, where he was questioned on the same date in the presence of a State-appointed lawyer and maintained his confessions. A bruise to an eye and a contusion of thorax were recorded on him.

4. According to the applicant, he was subsequently beaten by police officers in the temporary detention facility of Yekaterinburg (the IVS) between 22 November and 4 December 2004. No new injuries were detected on him on the latter date on admission to a remand centre. He provided the Court with a letter by inmate B. dated 2006 and describing visible injuries B. had allegedly seen on the applicant in the IVS.

5 . According to the applicant, he was further systematically ill-treated by cellmates acting on instructions of the officers between 14 February 2005 and 30 January 2006 in a wing functioning as a remand prison of the penal colony IK-2 of Yekaterinburg. It follows from his account which he changed throughout the years that he was tied to a bed or a railing and received blows to his head, body and legs, including with wooden sticks and an iron basin; that he was suffocated with ropes and belts; and that the inmates put a domestic immersion heater in his anus. The applicant underwent regular medical examinations during the period (about ten between February and October 2005, then every two to three days until December 2005) which did not reveal any injuries on him.

6. While detained in the IVS and IK-2, he made further self ‑ incriminating statements. In May 2005 he challenged the entirety of his earlier confessions as produced under duress, and since 2005 had lodged numerous complaints about the ill-treatment. Those complaints were rejected in a series of pre-investigative inquiries, notably, for the lack of any medical evidence, as well as on account of several changes in his description of the alleged duress; his reference to statements of a co-accused who had in reality never shared a cell with him; and manifest inconsistency with statements of several witnesses including inmates and officers.

7. During the trial the applicant requested to declare his confessions inadmissible as obtained under duress, and stated that a record of his questioning as suspect of 21 November 2004 had his bloodstains on it, referring to an unspecified “mark” on the record.

8. The trial court examined, notably:

- the investigator who testified that the applicant had had a bruise under an eye on 21 November 2004; and that the injuries had been inflicted during the arrest. The investigator was unable to comment on any alleged “marks” on the record, compiled in the presence of a lawyer and signed by the defence without any remarks;

- the head of the investigative group and several police officers, including an arresting officer, who submitted that during the arrest the applicant had received a blow to the body, fallen to the ground and sustained an abrasion to the eyebrow area; they denied any further allegations of duress.

9 . The trial court dismissed the applicant’s motion for a forensic biological expert examination of the interrogation record, noting that physical force had been used during his arrest, and as a result the applicant’s eyebrow had been cut open; and that it was impossible to establish the origin of the “stains” on the document. The court refused to exclude some evidence, in so far as (i) the applicant had been questioned as a suspect and as an accused in the presence of lawyers; and (ii) during the on-site check of his statements the police officers, attesting witnesses and a lawyer had accompanied the applicant, who had showed them where the offences had been committed, which had been video-recorded.

10 . As regards the events in IK-2, the court studied medical evidence and the pre-investigative inquiry materials and heard several inmates, one of whom testified that he had seen a prisoner punching the applicant in the stomach; another one stated that he had seen injuries on the applicant’s stomach in July 2005; and four others testified that they had heard about pressure which had been put on him in order to obtain confessions. The court rejected the allegations of ill-treatment in IK-2 as unsubstantiated, and rejected the witnesses’ statements as being manifestly at variance with the medical documents and the conclusions of inquiries held in response to the applicant’s complaints. The court emphasised the lack of any medical evidence in support of the allegations.

11 . On 19 April 2007 the Sverdlovsk Regional Court convicted the applicant of participation in an armed gang (banditry) and unlawful carrying of weapons, an attempted murder, murder, fourteen counts of robbery, and encroachment upon the life of police officers. He was sentenced to life imprisonment. The court referred to his confession statements, including numerous statements made between November 2004 and the spring of 2005 in which he maintained his confessions in the presence of lawyers . In respect of each episode, the trial court referred to extensive material evidence; the results of the on-site check of his statements; expert reports, statements by some co-accused and several witnesses; and, in respect of some of the offences, the testimonies of victims and eye witnesses who had identified the applicant as a perpetrator. The trial court rejected the applicant’s allegations of ill-treatment with reference to the results of the pre-investigation inquiry, as well as the witnesses’ trial testimonies, as unfounded; and found that the only injuries recorded on him had been inflicted during the arrest, as a result of his resistance. On 15 September 2010 the Supreme Court of Russia upheld the conviction.

12. The applicant complained under Articles 3 and 13 of the Convention that during and after his arrest and during his detention in the IVS and IK-2 he had been ill ‑ treated, and that the authorities had failed to investigate that. He complained under Article 6 § 1 that his conviction had been based on his confessions made under duress.

THE COURT’S ASSESSMENT

13. As regards the complaint under Article 3 about the ill-treatment between 20 and 21 November 2004, the applicant’s account of duress (advanced for the first time six months after the events) contains several inconsistencies. In his applications to both the authorities and the Court he changed the description of the ill-treatment several times. Moreover, any of his accounts of beatings lasting for hours sits ill with the evidence in the file confirming that he had a bruise to his eye and a contusion of the thorax after arrest. These factors put in question the credibility of his allegations (see Andreyevskiy v. Russia , no. 1750/03, § 62, 29 January 2009). Accordingly, the Court cannot establish that he had an arguable claim in respect of his alleged ill-treatment after the arrest or made a credible assertion. On the other hand, it appears that some force was used against him during the arrest.

14. His account of the events was examined not only during the pre ‑ investigation inquiry but also, separately, during the trial. The trial court questioned the applicant about the circumstances of the arrest and the alleged subsequent beatings, studied the medical evidence, admitted the pre ‑ investigation inquiry file and heard the investigator and police officers whom the applicant was able to cross-examine. Having rejected the allegations of ill-treatment at the UBOP premises, the courts found that the police used force against him during the arrest. Thus, it falls upon the Government to demonstrate that the use of force was proportionate and necessary (see Rehbock v. Slovenia , no. 29462/95, §§ 72 ‑ 76, ECHR 2000 ‑ XII). The Court notes that the applicant had been armed, resisted the arrest and had been arrested for an attempted murder of the policeman. Having regard to the medical documents and the circumstances of his arrest, the Court finds no reason to doubt the domestic assessment and concludes that, whilst the applicant admittedly suffered light injuries during the arrest, such use of force cannot be held to have been excessive.

15. This complaint is accordingly manifestly ill-founded and must be rejected under Article 35 §§ 3 (a) and 4 of the Convention.

16 . As regards the complaints under Article 3 about the ill-treatment in the IVS and IK-2, they are not supported by any evidence. Even though it may prove difficult for detainees to obtain such evidence, firstly, the applicant’s account of the events evolved considerably over the years, which undermines its credibility. Secondly, multiple medical examinations (including nearly daily examinations in late 2005) revealed no injuries on him, which sits ill with his allegation of systematic ill-treatment – even though at least some of the alleged injuries (see paragraph 5 above) would have been likely to have long-lasting effects on his health. Thirdly, the statements of several witnesses submitted directly to the Court in support of his account were made years after the alleged events, referred to the applicant’s own reconstruction of events and contained no information allowing for establishing ill-treatment beyond reasonable doubt. Finally, it was established that a co-accused who allegedly had shared a cell in the IVS with the applicant and could have attested to his ill-treatment, had never been detained in the same cell as the applicant. On the other hand, for an unexplained reason the applicant did not refer in his domestic complaints to the account of his injuries allegedly inflicted during his detention in the IVS given by inmate B., and instead relied on medical documents containing no record whatsoever of serious visible injuries alleged by B. In the absence of any explanations, the above undermines credibility of his allegations.

17. His allegations were examined in detail not only during the pre ‑ investigative inquiries but also in adversarial proceedings during the trial and rejected as unfounded with reference to statements of witnesses whom the applicant had been able to cross-examine, the inquiry materials and medical documents. The Court is not in possession of any material allowing it to reach a conclusion different from that assessment.

18. This complaint is accordingly manifestly ill-founded and must be rejected under Article 35 §§ 3 (a) and 4 of the Convention.

19. In the light of the above findings, the complaint under Article 13 must also be rejected as manifestly ill-founded, in accordance with Article 35§§ 3 (a) and 4 of the Convention.

20. As regards Article 6 of the Convention, the allegations of duress were scrutinised in adversarial proceedings. The applicant had an opportunity to challenge the use of his statements during the trial, and to put questions to the alleged perpetrators and witnesses. The courts approached his confessions with caution. The trial court heard the applicant, the alleged perpetrators and other witnesses; studied medical evidence obtained after his apprehension, as well as the medical documents pertaining to his detention in the IVS ad IK-2; and examined at length the applicant’s assertion that his relevant statements had been extracted under duress. The court rejected the allegations of duress as unsupported with any evidence, and there is nothing in the case materials to depart from these findings (contrast Belugin v. Russia, no. 2991/06, §§ 75-76, 26 November 2019). In respect of all counts of conviction, the courts’ findings were based on extensive evidence including material evidence and witnesses’ statements, which the courts analysed in detail. The Court is unable to conclude that the trial court failed to carry out an independent and comprehensive review of the applicant’s allegations that his self-incriminating statements had been obtained as a result of the duress. Nothing in the case file indicates that the applicant’s confessions tainted the evidence as a whole and rendered the proceedings unfair.

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

22. Finally, he raised other complaints under the Convention.

23. The Court considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. Therefore, they must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 16 December 2021.

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Olga Chernishova Peeter Roosma Deputy Registrar President