THIRD SECTION

DECISION

Application no. 44885/06 Nikolay Nikolayevich RYAZANOV against Russia

The European Court of Human Rights (Third Section), sitting on 19 October 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 application lodged on 5 September 2006,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Nikolay Nikolayevich Ryazanov, is a Russian national, who was born in 1968 and is detained in Puksinka. He was represented before the Court by Mr D.V. Agranovskiy, a lawyer practising in Moscow.

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

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

4. According to an official account of the events, on 15 April 2005 the applicant and a person called Iv. sold heroin to a purchaser who was acting as a plant in coordination with the Kurgan Department of the Federal Drug Control Service (“the Drug Control Service”), during a test purchase.

5 . At 2.15 p.m. on 15 April 2005 the applicant was arrested at his partner’s flat by officers of an operative unit and members of special forces of the Drug Control Service. The applicant – who, as established by the courts, was attempting to destroy drugs he stored in the flat – refused to open the door, and the officers broke it down. D uring the trial the applicant stated that an officer hit him in the belly. After a search of the flat, the applicant was transferred to the Drug Control Service premises.

6 . According to the applicant, at that location the officers beat him until the early morning of 16 April 2005, urging him to confess. They hit and kicked him several times in the head and body.

7 . According to the official records, at 9 p.m. on 15 April 2005 the officers took the applicant to a local ambulance station for an examination. According to a medical certificate issued at 9.20 p.m. on 15 April 2005 by the ambulance station, the applicant was diagnosed with bruising to the chest on the basis of what he reported, as the doctors found no visible injuries on him but noted tenderness of palpation in the 8 th rib projection. An X-ray examination of the chest did not reveal any bone injuries.

8. In the meantime, Mr Iv. was arrested on 15 April 2006 on the street. He was forced on the ground and handcuffed, in response to his attempts to resist the officers and to run away. According to the applicant, Iv. was beaten at the Drug Control Service premises after the arrest.

9 . At 2.15 a.m. on 16 April 2005 an investigator from the Drug Control Service drew up a record of the applicant’s arrest, and the applicant was questioned in the presence of State ‑ appointed counsel. In the early hours of 16 April 2005 Iv. was also questioned as a suspect in the presence of a State-appointed lawyer. Immediately thereafter a face-to-face confrontation between Iv. and the applicant was conducted in the presence of their lawyers. Iv. confessed to having bought drugs from the applicant on several occasions, and to having acted as an intermediary between the applicant and another person on 15 April 2005. The applicant remained silent.

10 . On 16 April 2005, upon his arrival at remand centre IZ-45/1 in Kurgan, the applicant was examined by the prison personnel there, who detected no visible injuries on him. On the same date he complained of chest pain and stated that he had been beaten by policemen during his arrest.

11 . On 17 April 2005 the applicant was examined at the remand centre’s medical unit. He was diagnosed with a chest contusion; and the following injuries were also found on him: a “bruise” (its location was not specified), an abrasion on the upper lip, and a bruise on the right wrist.

12 . On 6 July 2005 a forensic medical expert conducted a forensic examination of the applicant’s injuries, based on the applicant’s account of the events and the ambulance record of 15 April 2005. The expert concluded that the applicant had not had visible injuries on that latter date.

13 . One month later the applicant complained of ill-treatment to the Kurgan prosecutor’s office. By three separate decisions (the latest dated 9 July 2005) the prosecutor’s office refused to institute criminal proceedings, for lack of evidence of a criminal event. The decisions referred to the medical documents, reports by arresting officers and statements by two attesting witnesses, who all denied either having used force or having seen any duress applied to the applicant at the Drug Control Service. In one of the decisions the investigator noted that the injuries had only been found on him in the remand prison three days after the arrest, and could have been caused by other detainees. The decisions were later set aside as incomplete.

14 . By the final decision of 19 April 2007 the Ryazan Regional Court upheld lawfulness of the latest refusal. It noted that the applicant’s injuries had only been detected on 17 April 2005, and that his account of the events was inconsistent: while the crux of his complaint was the alleged beatings at the office of the Drug Control Service, he had told the ambulance doctors that he had fallen onto a solid object, and had told the medical professional at the remand centre and his lawyer that he had been beaten during the arrest.

15 . On 16 April 2005 the Kurgan Town Court ordered the applicant’s detention on remand (upheld on appeal on 27 April 2005). The measure was extended on at least nine occasions until he was convicted on 21 June 2006. Two applications by the applicant for his release on health grounds, lodged in the meantime, were rejected as unfounded. The courts noted in their decisions that he was charged with particularly serious crimes (two counts of drug sale) especially dangerous for society; that he had a previous criminal record; that he had a record of a person inclined to use drugs (according to a local drug rehabilitation outpatient clinic); that he had been unemployed and had been living on earnings obtained from drug sale, and was therefore likely to resume his criminal activities. With reference to his strong connections with criminal world, the courts also considered that he might flee from justice. Having noted that he has been acquainted with both the co-accused and several witnesses (some of whom even refused to testify under their real names), the courts considered that he could put pressure on witnesses or obstruct justice. Some of the most recent extension orders contained similar conclusions in respect of Mr Iv.

16 . By a judgment of 21 June 2006 (as modified on appeal on 31 August 2006) the applicant was convicted of two counts of attempted sale of large amount of drugs, including the count relating to the events of 15 April 2005 committed in conspiracy with others, and sentenced to ten years’ imprisonment.

17 . During the trial and on appeal the applicant denied any involvement in selling drugs, and asked for Iv.’s statements of 16 April 2005 to be excluded because they had been obtained under duress. Iv. pleaded guilty to procuring and storing drugs, but not guilty to selling drugs; and also asked for his confession statements to be excluded as obtained as a result of his prior ill-treatment.

18 . As regards the applicant’s arrest, one of the arresting officers confirmed in court that special forces could have used some force against the applicant during the arrest, as he had refused to open the door; and stated that he had not seen injuries on the applicant immediately after the arrest (the later observation was also confirmed by an attesting witness). As a follow-up to Iv.’s complaint, the trial court obtained a record of his medical examination from the remand prison and the material of pre ‑ investigation inquiry (opened as a follow-up to his complaint and rejecting his allegations of ill-treatment as unfounded) and heard eyewitnesses, including an arresting officer and the purchaser, who both confirmed that Iv. had resisted the arrest, and a special forces officer had used a self-defence hold against him and had forced him to the ground. The court also heard an investigator who stated that he had not seen any injuries on Iv. or the applicant during Iv.’s questioning as a suspect and the confrontation between the co-accused.

19 . The courts found that the Drug Control officers had lawfully used force against the applicant and Iv. during the arrest, owing to their resistance, the applicant’s refusal to open the door, as he had been attempting to destroy the evidence, and to Iv.’s attempt to run away. They referred to the refusals to open criminal proceedings which had been issued following the complaints of both co-accused, the medical documents and the witnesses’ statements, and rejected the ill ‑ treatment complaints of the co-accused as unfounded. The courts rejected Iv.’s complaint that he had made statements under duress, as he had made his confessions in the presence of a lawyer, and as Iv.’s allegations of the ill-treatment proved unsubstantiated. As regards the episode of 15 April 2005, the courts accordingly relied on: Iv.’s confession recorded during his questioning as a suspect (as it had been given of Iv’s own free will and in his lawyer’s presence); the record of the pre-trial confrontation between the co-accused; the testimony of the attesting witnesses, the purchaser and three of the officers of the Drug Control Service; and various documents related to the test purchase, including expert reports in respect of the drugs sold.

THE LAW

20. The applicant complained under Articles 3 and 13 of the Convention that he had been ill-treated by the police officers, and that the domestic investigation in respect of his ill-treatment complaint had been ineffective.

21. The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence. To assess such evidence, the Court adopts the standard of proof “beyond reasonable doubt”.

22. The Court notes several inconsistencies in the applicant’s account of events. Firstly, in his applications to both the authorities and the Court he changed his account several times, complaining that he was beaten either during the arrest or at the Drug Control office (see paragraphs 6, 10 and 14 above). Secondly, he complained to the Court about continued beatings after the arrest which had allegedly lasted until early morning next day. However, he omitted to specify that at 9 p.m. on the date of his arrest he had been taken to an ambulance station, and that no visible injuries had been detected on him on that date (compare paragraphs 6 and 7 above). Finally, even assuming that his complaint could concern the period after the above medical examination, the Court notes that the applicant’s account of beatings lasting for hours – couched in general terms and lacking a detailed description– sits ill with the evidence in the file confirming that he had an unspecified bruise, an abrasion on his face and a bruise on the wrist, which were detected two days after the arrest (see paragraph 11 above) – but not on admission to the remand prison (see paragraph 10 above). He never challenged the accuracy of any of his medical records. These factors put in question the credibility of his allegations of ill-treatment (see, mutatis mutandis, Andreyevskiy v. Russia , no. 1750/03, § 62, 29 January 2009; and Goryachkin v. Russia , no. 34636/09, §§ 64-68, 15 November 2016). Accordingly, the Court cannot establish that the applicant had an arguable claim in respect of his alleged ill-treatment at the FSKN premises or made a credible assertion. On the other hand, it appears not to be in dispute with the parties that some force has been used against the applicant during the arrest (see the applicant’s submissions and an officer’s trial statement, paragraphs 5, 10, 14 and 18 above).

23. The Court further notes that the applicant’s account of the events was examined not only during the pre ‑ investigation inquiry, but also, separately, during the trial. The Court finds it significant that the trial court took cognisance of the merits of the complaint, questioned the applicant about the circumstances of the arrest and the alleged subsequent ill ‑ treatment, studied the medical evidence, admitted the pre ‑ investigation ‑ inquiry file and heard a Drug Control officer whom the applicant identified as a perpetrator, as well as an eyewitness of the arrest. The applicant was able to cross ‑ examine them (see Andreyevskiy , cited above, §§ 56-57, and, in so far as relevant, Balbashev v. Russia [Committee], no. 13074/07, §§ 58-60, 22 September 2020). On the basis of that evidence, having rejected the allegations of ill-treatment at the Drug Control premises as unsubstantiated, the domestic courts found that the police used force against the applicant during the arrest. Thus, it was on the Government to demonstrate that the use of force was both proportionate and necessary (see Rehbock v. Slovenia , no. 29462/95, §§ 72 ‑ 76, ECHR 2000 ‑ XII). The Court notes that the domestic courts assessed the use of force as lawful and not excessive, referring to the applicant’s refusal to open the door and his attempt to destroy the evidence, as well as to the lack of visible injuries. Having regard to the case material – and above all the medical documents – the Court finds no reason to doubt the assessment of the domestic authorities. The Court concludes that, whilst the applicant admittedly suffered a light injury - a blow - during the arrest (see the record of chest pain made on the basis of what he reported, paragraphs 7 and 10 above), the use of force against him cannot be held to have been excessive.

24. Accordingly, his complaint about the ill-treatment and the authorities’ response to it is manifestly ill-founded and must be rejected under Article 35 §§ 3 (a) and 4 of the Convention.

25. The Court further reiterates that Article 13 requires domestic remedies only with regard to complaints arguable in terms of the Convention. In the light of its above findings under Article 3, the Court considers that 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.

26. The applicant complained that his fourteen-month pre-trial detention had been unreasonably long.

27. It is undisputed that his detention was initially warranted by a reasonable suspicion that he had attempted to sell a large quantity of heroin. As to the relevant and sufficient reasons for continued detention, the Court observes that the domestic courts took care to point in their decisions to the seriousness and repeated nature of the criminal offences in question (see paragraph 15 above), and the Court agrees with their decision to attach particular importance thereto given extreme difficulties experienced by the authorities, while targeting, tracking, arresting and bringing drugs criminals to court. The Court is therefore prepared to accept that the courts thoroughly evaluated the risk of the applicant reoffending. That fact created a strong presumption against the application of alternative measures of restraint in his case (see Sergey Denisov v. Russia , no. 21566/13, §78, 8 October 2015). The Court further notes that, while extending his detention the domestic courts had relied on the existence of a serious risk of his absconding or interfering with justice, confirmed, inter alia , by the pattern of his behaviour (see, in so far as relevant, Rydz v. Poland , no. 13167/02, 18 December 2007). The Court is satisfied that the domestic courts cited specific facts in support of their conclusions that the applicant was liable to tamper with witnesses or abscond. They considered a possibility of applying alternative measures, but found them to be inadequate in the circumstances. The courts examined all the pertinent factors and gave “relevant” and “sufficient” reasons to justify the applicant’s continued detention.

28. Furthermore, the overall duration of the applicant’s detention does not in itself appear unreasonable in the circumstances of the case, since there is no appearance of any significant period of inactivity on the part of the authorities and the investigation appears to have been of a certain complexity. The hearings in his criminal case were held regularly and at short intervals, and the courts took proper measures to ensure the speedy progress of the proceedings (see Gábor Nagy v. Hungary (no. 2) , no. 73999/14, §§ 78-79, 11 April 2017). So, it cannot be said that the domestic authorities failed to display “special diligence” in the conduct of the proceedings (see Khloyev v. Russia , no. 46404/13, §§ 96 ‑ 107, 5 February 2015; Sopin v. Russia , no. 57319/10, §§ 42-48, 18 December 2012; and Anninos v. Greece (dec,), no. 39682/09, §§ 17-25, 17 March 2015).

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

30. The applicant mainly complained under Article 6 § 1 of the Convention that he had been convicted of a criminal offence which the police had incited him to commit.

31. However, the Court notes that the applicant, in the domestic proceedings, denied that he had sold drugs at all, either as a result of police incitement or otherwise. Instead, he challenged the case against him by asserting that the witnesses’ statements were contradictory, and the charges were fabricated (see paragraph 17 above). Therefore, the applicant, who was represented throughout the proceedings, did not formulate a plausible agent provocateur complaint before the domestic courts “clearly and in good time in the domestic proceedings” (see Bagaryan v. Russia (dec.), no. 3343/06, 12 November 2013), in the absence of any special reason. Consequently, the defects in Russian law and practice identified by the Court in previous cases are irrelevant to the case at hand. Accordingly, the Court rejects the complaint for being manifestly ill ‑ founded, in accordance with Article 35 §§ 3 and 4 of the Convention.

32. In addition, he complained under Article 6 that the fairness of the trial had been undermined by the admission as evidence of Iv.’s statements (made during his confrontation with the applicant and his questioning as a suspect on 16 April 2005), allegedly obtained under duress.

33. The Court notes that the impugned statements were produced in the presence of a lawyer. The Court further notes that the trial court admitted the inquiry materials and medical documents, heard Iv., arresting officers and eyewitnesses and dismissed his allegations of duress as unfounded, having established that his injuries had been inflicted during the arrest. Considering the lack of substantiation – in particular, the absence of any documents or information about the nature of Iv.’s injuries or a progress of a domestic inquiry into his allegations of duress – the Court does not see any reason to depart form the domestic courts’ assessment or to conclude that the domestic courts’ scrutiny was not thorough (see, by contrast, Urazbayev v. Russia , no. 13128/06, §§ 66-74, 8 October 2019). It considers that the courts adequately addressed the objections raised by the applicant in respect of the reliability and probative value of Iv.’s confession statements, and provided him with an effective opportunity to challenge their admissibility. Accordingly, the Court rejects the complaint for being manifestly ill ‑ founded, in accordance with Article 35 §§ 3 and 4 of the Convention.

34. Lastly, relying on Article 3 and Article 6 §§ 1 and 2 of the Convention, and Article 1 of Protocol No. 1 to the Convention, the applicant complained in particular of: a failure to release him on health grounds, a trial court judge’s bias, a poor quality and an incorrect assessment of evidence, the delayed delivery of the trial transcript; the seizure of items belonging to him and to his partner; and the failure to secure his attendance at the proceedings concerning his challenge to the refusal to institute criminal proceedings. He also complained under Articles 6 and 8 that a search of his partner’s home and the admission of the relevant search record as evidence in the criminal proceedings had been unlawful.

35. Having regard to all the material in its possession, and in so far as these complaints fall within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols and must be rejected as manifestly ill ‑ founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 18 November 2021.

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Olga Chernishova Peeter Roosma Deputy Registrar President