Communicated on 20 May 2020 Published on 15 June 2020

THIRD SECTION

Application no. 30546/18 Dzhamalay Musayevich TAZBIYEV against Russia lodged on 15 June 2018

STATEMENT OF FACTS

The applicant, Mr Dzhamalay Musayevich Tazbiyev , is a Russian national, who was born in 1998 and lives in Grozny. He is represented before the Court by Ms K.S. Akhmadova , a lawyer practising in Zheleznovodsk . The facts of the case, as submitted by the applicant, may be summarised as follows.

On 27 January 2017 at around 8 p.m. police officers arrested the applicant in his house and took him to police department no. 3 in Grozny. He was placed in a temporary detention facility (IVS). The officers put a bag over his head and beat him with a truncheon. They demanded him to confess to having intended to go to Syria in order to participate in illegal armed groups. In the police station the applicant met Mr T., Mr Ya . and Mr L., who were also beaten and forced to confess in similar intentions. The applicant ’ s ill-treatment lasted for five or six days. He was forced to do splits , beaten with rubber truncheons and metal bars. Officers insulted him, using foul language, made gunshots passing by the applicant.

On 22 February 2017 investigator M. took the applicant to his house where they conducted a reconstruction, during which two attesting witnesses and police officer Kh . were present. The applicant was not represented by a lawyer. The applicant stated that he had been watching videos on internet about the war in Syria and then he had decided to go there in order to join illegal armed groups in Syria. He further stated that he had discussed his intentions with his friends T., L. and B. and that he had intended to obtain a foreign passport.

The applicant was again taken to the police station.

On 14 March 2017 a criminal case was opened against the applicant and Mr T. into participation in an illegal armed group under Article 208 § 2 of the Criminal Code of Russia (the CC).

On the same day investigator M. made a request to the local bar association to appoint a lawyer for the applicant.

The applicant ’ s arrest was recorded on 14 March 2017 at 5.20 p.m. in the presence of Mr S, a State-appointed lawyer. The applicant was interviewed as a suspect on the same day. He confessed to the crimes, with which he was charged, and reiterated the statements that he had given on 22 February 2017.

On 15 March 2017 the applicant was questioned as an accused in the presence of lawyer S.

On 17 March 2017 the applicant underwent a forensic medical examination. According to act no. 609, he did not have any injuries.

On 17 August 2017 the applicant ’ s lawyer of his choosing, Ms Akhmadova , requested information from the bar association of the Chechen Republic as to whether they had received a request from investigator M. to appoint a lawyer for the applicant.

On the same day the President of the bar association replied that the association had not received a request from investigator M. and that lawyer S. was not appointed by the association to represent the applicant.

On 4 July 2017 the criminal court proceedings against the applicant and T. started in the Staropromyslovskiy District Court. The applicant was represented by Ms Akhamdova and lawyer R.

The applicant retracted his initial statements and submitted that he had been arrested on 27 January 2017 and subsequently ill ‑ treated in the police station and that he had signed his confession under duress. He met lawyer S. for the first time on 15 March 2017.

T. also retracted his self-incriminating statements and alleged that police officers had beaten him and the applicant, forcing them to confess.

The court heard officer Kh ., who submitted that in February 2017 he had received information from an unidentified person about T. and the applicant, who allegedly had had intentions to leave for Syria. On 8 February 2017 officer Kh . visited the applicant and T. at home and asked them to follow him for a questioning. The applicant and T. followed him to the police station, where they confessed to the crimes. No physical force was used against them. Both were released after the questioning. Officer Kh . compiled the report about the elements of crimes under Article 208 of the CC.

Attesting witness Su., the applicant ’ s neighbour, testified that he learned about the applicant ’ s arrest on 28 January 2017. He saw the applicant on 22 February 2017 when the police brought him home. He was handcuffed. On 3 March 2017 he was asked to sign documents. He signed them without reading the contents. Attesting witness B. gave similar testimonies. He added that on 22 February 2017, after the reconstruction the applicant and T. left with the police.

The applicant ’ s uncle, Mr Ta., submitted that the applicant had been arrested by three police officers on 27 January 2017 in their house. In the following days, he tried to find out about the reasons for the arrest. On 15 February 2017 an investigator and a police officer arrived at the house and seized the applicant ’ s passport. On 22 February 2017 the police brought the applicant. They took photos in the house and then left.

The applicant ’ s mother also submitted that the applicant had been arrested on 27 January 2017.

Lawyer S. submitted that he had represented the applicant on 14 and 15 March 2017 during his arrest and interviews. He did not see any visible injuries on the applicant.

On 17 August 2017 the court ordered an inquiry into the applicant ’ s allegations of ill-treatment and unrecorded detention.

On 24 August 2017 a senior investigator refused to open a criminal case for the lack of evidence of a crime. The case file does not contain a copy of the decision.

On 5 September 2017 the court convicted the applicant and T. to five years of imprisonment each in a colony of strict regime. The period of detention as of 14 March 2017 was to be counted as part of the sentence. It dismissed the applicant ’ s complaints about unrecorded detention and ill ‑ treatment, referring to the refusal of 24 August 2017. The court dismissed their statements given in trial and relied on their confession statements given during the investigation. It dismissed the statements of the applicant ’ s relatives as unreliable due to their family relationship.

On 7 November 2017 the applicant challenged the conviction arguing, among other things, that the records of interviews with the participation of lawyer S. should be excluded from the body of evidence and declared inadmissible, that the applicant had been kept in unrecorded detention for more than a month, and that his statements had been obtained under duress.

On 19 December 2017 the Supreme Court of Chechnya reduced the sentence to three years and six months and, as to the remainder, upheld the conviction on the same grounds and for the same reasons as the court of the first instance.

For the relevant provisions of domestic law, see Lyapin v. Russia (no. 46956/09, §§ 96-102, 24 July 2014) and Ryabtsev v. Russia (no. 13642/06, §§ 48-52, 14 November 2013).

COMPLAINTS

1. The applicant complains under Article 3 of the Convention that he was subjected to ill-treatment at the hands of the police and that the investigation was ineffective in that regard.

2. He complains under Article 5 § 1 of the Convention about his unrecorded detention between 27 January and 14 March 2017.

3. Relying on Article 6 § 1 of the Convention he complains that the criminal proceedings against him were unfair as the conviction was based on his confession statements obtained under duress.

4. Finally, he complains under Article 6 § 3 (c) of the Convention that he had no access to a lawyer during his unrecorded detention and that the representation by lawyer S., appointed by the investigator, was ineffective since he was not present during his interviews when he confessed.

QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to torture or inhuman or degrading treatment, in breach of Article 3 of the Convention?

2. Having regard to the procedural protection from torture and inhuman or degrading treatment (see of Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?

The Government are requested to provide a copy of the refusal to open a criminal case of 24 August 2017, issued by the senior investigator of the investigative department of the Staropromyslovskiy District of Grozny.

3. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention between 27 January and 14 March 2017? Was it compatible with the guarantees of Article 5 §§ 1-5 of the Convention?

4. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention, in view of the applicant ’ s conviction based on the confession statements which were allegedly obtained under duress?

5. Were the criminal proceedings in the applicant ’ s case compliant with the standards set out in Article 6 §§ 1 and 3 (c) of the Convention, given the alleged lack of legal assistance? In answering the question, the parties are requested to address the following points:

Was lawyer S. authorised to represent the applicant?

Was the applicant represented by a lawyer during his interviews on 14 and 15 March 2017?