Communicated on 7 July 2020 Published on 27 July 2020

THIRD SECTION

Application no. 12004/16 Zaur Sharipovich DADAYEV against Russia lodged on 19 February 2016

STATEMENT OF FACTS

The applicant, Mr Zaur Sharipovich Dadayev , is a Russian national, who was born in 1982 and lived, prior to his arrest and conviction, in Malgobek , Ingushetia Republic. He is represented before the Court by Mr I. Kalyapin , Ms O. Sadovskaya and Ms Ye. Vanslova , lawyers with the Committee Against Torture, a non-governmental organisation based in Nizhniy Novgorod, and Ms R. Magomedova , a lawyer practising in Moscow.

The circumstances of the case

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

On 28 February 2015 the Moscow City Investigative Committee opened a criminal investigation into the murder of a prominent opposition leader N.

On 5 March 2015 approximately at 9 p.m. a Lada Priora car blocked the passage for the applicant ’ s car in Magas, Ingushetia Republic. Several armed men wearing masks got out of the Lada. One of them pulled the applicant out of his car and threw him to the ground. The men handcuffed the applicant, put a plastic bag over his head and took him to an unknown location. Yu., who was also in the applicant ’ s car, was taken to an unknown location where he was kept for two days.

From 5 to 7 March 2015 the applicant was held in a basement handcuffed to a radiator. He was starved and hooded. He was given some water three or four times during that period. He was not allowed to use the bathroom. For his needs, he was given an empty fuel can. His kidnappers tortured him by electrocution. They promised to release Yu. in exchange for the applicant ’ s confession to the killing of N. The applicant gave in.

On 7 March 2015 the applicant was transferred to the investigative committee ’ s premises in Moscow and senior investigator Kr. recorded his arrest. The applicant was threatened to be killed in a remand prison, should he refuse to confess. The applicant admitted to having killed N.

On 8 March 2015 the applicant was charged with N. ’ s murder and transferred to the Lefortovo remand prison.

On 10 March 2015 Mr B. and Ms Ye.M ., members of the Public Watch Commission, visited the Lefortovo remand prison. During the visit they met with the applicant who informed them of the circumstances of his arrest and detention from 5 to 7 March 2015. He also showed to them numerous bruises on his arms and legs resulting from hand- and legcuffs and multiple lesions on his toes which were the traces of the wires used to electrocute him. The applicant also asked the members of the Commission to help him with access to a lawyer in order to proceed with his complaint about ill ‑ treatment in custody. The applicant agreed to be represented by the Committee against Torture.

The above information was published on the website of the Council for Development of Civil Society affiliated with the President of the Russian Federation. The members of the Commission concluded that there was sufficient evidence confirming that the applicant had been subjected to torture and decided to inform the General Prosecutor ’ s Office and the Chairman of the Investigative Committee asking them to conduct an investigation into the situation.

On 8 March 2015 the applicant was examined by medical practitioners at the remand prison. They documented lesions on the left hand and both knees.

On 10 March 2015 the applicant complained to the doctor of a headache and pain in the back and the arms and difficulties with urination.

On 16 March 2015 the Committee against Torture retained counsel G. to represent the applicant in order to pursue his complaint about ill-treatment in custody.

On 17 March 2015 G. was refused a meeting with the applicant. The administration of the remand prison advised him to obtain a special approval for such visit from the investigator in charge of the applicant ’ s case.

On 4 April 2015 a member of the Public Watch Commission, Ms Ye.M ., asked the Chairman of the Investigative Committee to conduct investigation into the applicant ’ s complaint about ill-treatment in custody.

On 13 April 2015 investigator Kr. refused to allow G. to meet with the applicant. The investigator ’ s decision was upheld on appeal by the Basmanny District Court of Moscow and the Moscow City Court on 13 May and 13 July 2015 respectively.

On 13 May 2015 senior investigator St. refused to open a criminal investigation into the applicant ’ s complaint. The investigator relied on the statements made by the applicant and the law-enforcement officers who had taken part in his arrest and questioning. The investigator concluded that the applicant had sustained certain bodily harm in the course of the arrest as a result of handcuffing and ruled no case to answer against the alleged perpetrators.

On 27 August 2015 the District Court upheld the investigator ’ s decision. On 19 October 2015 the City Court upheld the District Court ’ s decision.

On 8 March 2015 the District Court remanded the applicant in custody until 28 April 2015. Relying on the gravity of the charges against the applicant, the court reasoned that he might abscond, interfere with the investigation, contact accomplices and disclose to them information concerning the investigation, put pressure on witnesses and other parties to the proceedings or destroy evidence.

On 1 April 2015 the City Court upheld the decision of 8 March 2015 on appeal.

On several subsequent occasions the District Court extended the applicant ’ s pre-trial detention pending investigation and trial. The court reiterated its reasoning of 8 March 2015. The relevant decisions were taken on 23 April, 25 August and 23 November 2015.

The applicant ’ s appeals were to no avail. On 15 June and 7 October 2015 and 1 February 2016 the City Court upheld the relevant decisions of the District Court on appeal.

On 19 February 2016 the District Court extended the applicant ’ s pre-trial detention to 7 March 2016. The court issued a collective detention order in respect of the applicant and four other defendants relying on the gravity of the charges against them. On 8 April 2016 the City Court upheld the said decision on appeal.

On 1 March and 12 May 2016 the City Court extended the applicant ’ s pre-trial detention to 28 May and 28 August 2016 respectively. The court issued a collective detention order in respect of the applicant and four other defendants relying on the gravity of the charges against them and noting that such extension was necessary for the defendants to study the materials of the case-file. On 21 April and 28 June 2016 the appellate division of the City Court upheld the said decisions on appeal.

On 26 July 2016 the Moscow Circuit Military Court fixed the jury trial for 24 August 2016 and, relying on the gravity of the charges, extended the defendants ’ detention to 30 December 2016.

During the trial the applicants were placed in a glass cabin.

On 22 December 2016 the Military Court extended the defendants ’ detention to 30 March 2017. The court duplicated its previous reasoning.

It appears that on a number of subsequent occasions the defendants ’ detention was extended further. The latest extension took place on 21 June 2017 as upheld on appeal on 12 July 2017. The courts ’ reasoning remained unchanged.

On 29 June 2017 the jury declared all the defendants guilty as charged.

On 13 July 2017 the Military Court sentenced the applicant to twenty years ’ imprisonment and a fine. The applicant appealed.

On 10 October 2017 the Supreme Court of the Russian Federation upheld, in substance, the applicant ’ s conviction on appeal. The applicant took part in the proceedings via a video link. He was held in a metal cage during the hearing.

From 8 March 2015 to 30 November 2017 the applicant was detained in Lefortovo remand prison. On more than fifteen occasions he was transported from the remand prison to the courthouse or the investigative committee and back. On those days he normally had to wake up at 5 a.m. and had no breakfast. The trip lasted from 3 to 4 hours. The applicant was handcuffed and placed in a single compartment. The natural ventilation of the van through the hatches was insufficient and it was stiflingly hot in the summer. During the winter the vans were not heated when the engines were off. It was impossible to use the toilet during the journey. On the way back, the trip lasted from 7 to 8 hours.

In the courthouse, the applicant was placed in a holding cell. Such cells measured 1.5 by 1.5 m and were overcrowded, poorly lit and unventilated. The number of inmates per cell varied from 3 to 5 persons. The cells were equipped only with benches. There was no toilet or tables.

On 30 November 2017 the applicant left the remand prison.

COMPLAINTS

The applicant complains under Articles 3 and 13 of the Convention that from 5 to 7 March 2015 he was tortured by law-enforcement officers and that the investigation in response to his complaint about ill-treatment in custody was ineffective.

The applicant complains under Articles 3 and 13 of the Convention about the conditions of his detention at the remand prison and the courthouses and the conditions of transport to and from the courthouse or investigative committee.

The applicant complains under Article 5 § 3 of the Convention about the length of his pre-trial detention.

The applicant complains under Article 5 § 4 of the Convention that the review of the lawfulness of his pre-trial detention extended on 23 November 2015, 19 February, 1 March and 12 May 2016 and 21 June 2017 was not conducted “speedily”.

The applicant complains under Article 6 §§ 1 and 3 (b) and (c) of the Convention that he was unable to participate effectively in the judicial proceedings because of his confinement in a glass cabin or a metal cage during the hearings and the excessively intensive schedule of those hearings and inhuman conditions of his transport to and from the courthouse.

The applicant complains under Article 6 §§ 1 and 3 (c) of the Convention that the presiding judge admitted his confession statements made under duress into evidence and read them out to the jury.

QUESTIONS TO THE PARTIES

1. As regards the events from 5 to 7 March 2015, has the applicant been subjected to torture or inhuman or degrading treatment while in custody, in breach of Article 3 of the Convention? Having regard to the procedural protection from inhuman or degrading treatment, was the investigation conducted by the domestic authorities in the present case compatible with the requirements set forth in Article 3 of the Convention (see Lyapin v. Russia , no. 46956/09, §§ 109-40, 24 July 2014) ?

The Government are requested to produce the complete investigation file pertaining to the events between 5 and 7 March 2015.

2. Were the conditions of the applicant ’ s detention at, and transport to and from, the courthouse compatible with Article 3 of the Convention (see Idalov v. Russia [GC], no. 5826/03, §§ 91-108, 22 May 2012) ?

3. Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 3, as required by Article 13 of the Convention?

4. Has the applicant ’ s pre-trial detention been based on “relevant and sufficient” reasons and has it been compatible with the “reasonable time” requirement of Article 5 § 3 of the Convention (see Zherebin v. Russia , no. 51445/09, §§ 49-63, 24 March 2016)?

5. Was the procedure by which the applicant sought to challenge the lawfulness of his pre-trial detention in conformity with Article 5 § 4 of the Convention? In particular, were the applicant ’ s appeals against the detention orders of 23 November 2015, 19 February, 1 March and 12 May 2016 and 21 June 2017 considered “speedily”, as required by Article 5 § 4 of the Convention (see Idalov , cited above , §§ 154-58) ?

6. In the determination of the criminal charge against him, did the applicant have a fair hearing as required by Article 6 §§ 1 and 3 (b) and (c) of the Convention? In particular,

(a) Was his right to remain silent and not to incriminate himself respected, having regard to the fact that the confession statements made by the applicant on 7 and 8 March 2015 were disclosed to the jury (see Gäfgen v. Germany [GC], no. 22978/05, §§ 162-68, ECHR 2010, and Nasakin v. Russia , no. 22735/05, §§ 95-100, 18 July 2013)?

(b) As regards the applicant ’ s confinement in a glass cabin and a metal cage during the trial and appeal proceedings, was the applicant afforded adequate time and facilities to prepare his defence and to maintain confidential communication with his counsel (see Yaroslav Belousov v. Russia , nos. 2653/13 and 60980/14, §§ 145-54 , 4 October 2016, and Razvozzhayev v. Russia and Ukraine and Udaltsov v. Russia , nos. 75734/12 and 2 others, §§ 248-55, 19 November 2019) ?