Communicated on 17 January 2019

THIRD SECTION

Application no. 21396/11 Aleksey Alekseyevich ALEKSANDROV against Russia and 4 others – see appended list

STATEMENT OF FACTS

The applicants complained under Articles 3 and 13 of the Convention that they had been subjected to ill-treatment by State officials and that the State failed to conduct an effective domestic investigation into those incidents. All of the applicants submitted that their attempts to initiate criminal investigation in connection with the incidents proved futile.

The relevant details regarding the applicants ’ allegations and their version of factual circumstances are reflected in the attached appendices. The information regarding the alleged breach of the substantive aspect of Article 3 in contained in Appendix no. 1. The reaction of the domestic authorities to the applicants ’ complaints is reflected in Appendix no. 2.

Some applicants also raised other complaints, subject of well-established case-law of the Court (see Appendix no. 3).

The applicant in case no. 21396/11 also complained under Articles 3 and 13 of the Convention about the beating by a co-detainee and the lack of investigation in this connection.

The applicant in case 64761/13 also complained under Articles 8 and 13 about his transfer to a remote prison facility far away from his family and the lack of domestic remedy in this connection.

The applicants in cases nos. 71716/14 and 372/15 complained about the use of handcuffing in respect of them, which was allegedly unjustified and in breach of Articles 3 and 13 of the Convention.

The table of cases:

No.

Application number

Introduction date

Name of the applicant(s) ; date of birth

place of residence

Represented by

1.

21396/11

29/03/2011

Aleksey Alekseyevich ALEKSANDROV 24/01/1958 Kyshtym

Vladislav Valeryevich PROZOROV

2.

45750/13

06/06/2013

Viktor Nikolayevich BABAK 10/08/1967 Kharp

3.

64761/13

18/09/2013

Vitaliy Viktorovich STARIKOV 07/01/1980 Krasnoyarsk

4.

71716/14

21/10/2014

Anton Viktorovich ZABIYAKA 14/07/1975 Amursk

5.

372/15

31/07/2015

Aleksey Gennadyevich KUDRYAVTSEV 01/12/1961 St Petersburg

QUESTIONS

1. Having regard to the injuries found on the applicants after the time spent by them in State custody, have the applicants been subjected to torture, or inhuman or degrading treatment, in breach of Article 3 of the Convention (see, among other authorities, Razzakov v. Russia , no. 57519/09, 5 February 2015; Gorshchuk v. Russia , no. 31316/09, 6 October 2015; Turbylev v. Russia , no. 4722/09, 6 October 2015; Fartushin v. Russia , no. 38887/09, 8 October 2015; Aleksandr Andreyev v. Russia , no. 2281/06, 23 February 2016; and Leonid Petrov v. Russia , no. 52783/08, 11 October 2016 )?

2. Have the authorities discharged their burden of proof by providing a plausible or satisfactory and convincing explanation of how the applicants ’ injuries were caused (see Selmouni , cited above, § 87, and Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000 ‑ VII and Bouyid v. Belgium [GC], no. 23380/09, § 83 and further, ECHR 2015 )?

3. Did the authorities carry out an effective investigation, in compliance with the procedural obligation under Articles 3 and 13 of the Convention (see Lyapin v. Russia , no. 46956/09, §§ 125-40, 24 July 2014), having regard to:

(a) the investigating authorities ’ refusals to open criminal cases and investigate the applicants ’ allegations of ill-treatment by the State officials, and the overruling of those refusals as unlawful and unsubstantiated by higher investigative authorities or courts, and

(b) the investigating authorities ’ inability to implement full investigative measures within the framework of the pre-investigation inquiries, before and/or after amendments to the Code of Criminal Procedure introduced by Federal Law no. 23-FZ of 4 March 2013, for example, confrontations, identification parades, searches, and so forth?

4. As regards case no. 21396/11, have the authorities discharged their obligation under the procedural aspect of Article 3 of the Convention in respect of the alleged beating of the applicant by another detainee(s)?

5. As regards case no. 64761/13, has there been an interference with the applicant ’ s right to respect for their private and family life, within the meaning of Article 8 § 1 of the Convention, in view of his respective transfer to a penitentiary facility outside his home regions and the effects those decisions had on the applicant ’ s contacts with his family members? If so, did the interference in question fulfill the criteria set out in Article 8 § 2 of the Convention (see Khodorkovskiy and Lebedev v. Russia , nos. 11082/06 and 13772/05, §§ 835-51, 25 July 2013)? In this connection, (a) having regard to the terms of Article 73 of the Russian Code on the Execution of Sentences (“CES”), was the interference in question “in accordance with law”; (b) did it pursue one or more legitimate aim(s); and (c) was it “necessary” for the pursuit of such an aim, in other words, supported by relevant and sufficient reasons and proportionate? More specifically, did the domestic authorities carry out a balancing exercise to assess proportionality of the impugned transfers to the aim(s) sought? Does Article 81 of the Code on the Execution of Sentences provide for a possibility of carrying out such balancing exercise after a detainee ’ s transfer to a certain facility?

6. In respect of the same case, did the applicant have effective domestic remedies for his complaints under Article 8 of the Convention at his disposal, as required by Article 13 of the Convention? In particular, bearing in mind the wording of Article 81 of the CES, is there an available avenue of redress allowing quashing the decision by the agencies of the Federal Penitentiary Service on a detainee ’ s placement in a facility located outside of his or her home region of Russia prior to or after its implementation on the grounds of an alleged interference with the detainee ’ s private and/or family life?

7. As regards cases nos. 71716/14 and 372/15, was the use of handcuffing in respect of the applicants in the episodes referred to in the table appropriate and compatible with Article 3 of the Convention? Were there sufficient reasons to expect any violent acts from the applicants? Were the court convoy premises secure enough to avoid handcuffing? ( see , e.g. Kashavelov v. Bulgaria , no. 891/05, §§ 38-40)? Also, did the applicants have an effective remedy within the meaning of Article 13 with regard to allegedly unnecessary handcuffing?

No

Application No. and Title

APPENDIX No. 1

Article 3 - Substantive aspect

ARREST

ALLEGED ILL-TREATMENT

EVIDENCE

Date

Time

Facts

Region Town Street

Entity

Date

Time

Location

Alleged Facts

Perpetrator(s)

Date

Doc Type

Authority

Description of Injuries

1.

21396/11 Aleksandrov v. Russia

From 16/02/2010 to 08/03/2010 daily, twice a day

UP-288/T Minusinsk , Krasnoyarsk Region

Beaten on his head, on the liver area, his legs were pulled in opposite directions to make him "do the splits"

Prison employees

18/03/2010

Examination

Investigator

Torn skin on both sides of the groin; bruise on the right side of the chest; scar on the left eyebrow; deformation of the nose bones

30/03/2010

Forensic examination

Krasnoyarsk Regional Forensic Bureau

Scar on the face dating 4 to 6 months before the examination

16/07/2010

UP-288/T Minusinsk , Krasnoyarsk Region

Broken nose in a fight with a co-detainee

Co-detainee O.

19/07/2010

Medical certificate (выписка из медицинской карты)

cited in the refusal to prosecute of 26/10/2010

Scratch on the nose, bruise on the right side of the nose

20/08/2010

Forensic examination

cited in the refusal to prosecute of 26/10/2010

Injury of the nose manifested in a scratch and a bruise on the face

26/10/2010

Testimony of a forensic expert

cited in the refusal to prosecute of 26/10/2010

Cont radictory descriptions of the X ‑ ray results: 20/07/2010 - fracture of the nose bones without displace- ment ; 21/07/2010 - displaced open fracture of the nose bones

2.

45750/13 Babak v. Russia

28/08/2009

IK-7 in the Vladimir Region

The applicant was placed in a punishment ward where under unestablished circumstances (administration claimed that he was subdued after attack on the warden on 28/08/2016) he received the following injuries: multiple fractured ribs on the right side, internal blunt chest and waist injuries, shick lung and pneumoderma .

Warders

21/11/2011

Abstract of the medical record

Deputy head of the prison ’ s medical ward

On 29/08/2009 the applicant was transported to the medical ward with multiple fractured ribs on the right side, internal bl unt chest and waist injuries, s ick lung and pneumoderma .

3.

64761/13 Starikov v. Russia

During detention 09/03/2010

Pre-trail detention cell in SIZO-2 Novokuznetsk

The applicant was beaten by a cellmate Mikhail, as result- closed fracture of the elbow.

Cellmate Mikhail

20/09/2012

Extract from the patient ’ s medical file

Deputy Head of Medical Treatment and Prevention Issues Unit of IK-5.

Closed fracture of the elbow

During detention 06/05/2010

Transportation van

Detainees Golubyatnikov , Sukhanov , Shtrosherer had beaten the applicant, as they accused him of collaboration with authorities. Security guard did not intervene. After 10 minutes the beating was stopped by the authorities.

Detainees Golubyatnikov Sukhanov , Shtrosherer

20/09/2012

Extract from the patient ’ s medical file

Deputy Head of Medical Treatment and Prevention Issues Unit of IK-5.

Fracture of the 7th rib on the left, pneumothorax. Hospitalisation, operation.

During detention 21/05/2010

pre-trial detention cell in SIZO-2 Novokuznetsk

While back to cell from the hospital, the applicant was beaten with hands and legs by unknown person (cellmate). The nose had been broken.

Unknown person (cellmate)

n/a

n/a

n/a

Broken nose, bleeding.

During detention 25/07/11

pre-trail detention cell SIZO-2 Novokuznetsk

Beatings with hands and legs on the applicant ’ s head, nose, jaw. The operative officer took the perpetrators out of cell. The SIZO authorities forced the applicant to write an explanatory note that he caused the injuries himself, what he did.

Petrenko , Smirnov and 2 others (cellmates)

20/ 09 / 2012

Extract from the patient ’ s medical file

Deputy Head of Medical Treatment and Prevention Issues Unit of IK-5.

Mandibular fracture.

4.

71716/14 Zabiyaka v. Russia

25/10/2012 around 17 :00

Holmsk district investiga-tion depart- ment of the investiga-tive committee at the Sakhalin Region

Holmsk district investigation department of the investigative committee at the Sakhalin Region, investigator T.

21/12/2012-28/12/2012

IVS Holmsk

The applicant was handcuffed to his bed during night time.

IVS personnel (on duty officers Mrs S., Mrs. B and Mr A.)

Acknow-ledgement of handcuffing in the investigator ’ s decision

The arrest record was drafted on 25/10/2012. According to the applicant he came to the police station on 24/10/2012 at 15:30 for questioning. He signed a confession and the criminal case (sexual abuse of minors) was initiated on the next day. It is unclear whether he returned home on 24/10/2012 or stayed at the station until 25/10/2012. It appears that he was detained without any record during that night.

5.

372/15 Kudryavtsev v. Russia

23/01/2015, 16/02/2015, 24/02/2015, 18/05/2015, 22/09/2015, 29/09/2015 and other dates

Dzerzhinsky District Court St. Petersburg, convoy premises

Handcuffing for multiple hours

Convoy officers

No

Application No. and Title

APPENDIX No. 2

Article 3 - Procedural aspect

DOMESTIC COMPLAINT AND THE GOVERNMENT REACTION

Date of Complaint

Authority

Type of Reaction

Date(s)

Procedural Outcome

1.

21396/11 Aleksandrov v. Russia

16/03/2010

Investigator

Consistently refused

11/05/2010

Refusal to prosecute, upheld in court on 30/12/2010 and 22/02/2011

Failed to secure the video tapes (stored for 14 days); failed to question all the involved prison authorities; the forensic expert additionally stated that he had seen the injuries first fixed in the investigator ’ s examination (including the injuries of the groin) but that they were not likely to have been caused by physical violence - no further checks.

19/07/2010

Investigator

Consistently refused

26/10/2010

Refusal to prosecute, upheld in court on 28/12/2010 and 22/02/2011

The contradictions of the medical documents not resolved; video tapes not secured (stored for 14 days). The investigator decided to launch another pre-investigatory control with regard to the co-detainee. No information on the progress.

2.

45750/13 Babak

v. Russia

Unknown

Criminal Investigation

Criminal investigation initiated against "unidentified" colony warders on 19/10/2009. On 06/08/2012 the criminal investigation was suspended for lack of evidence. Two versions of events put forward by the authorities;

1) the applicant resisted a warder;

2) the applicant fell in a punishment cell.

Criminal investigation is suspended. Perpetrators were not identified. However, it was confirmed that the was a crime committed against the applicant. The applicant brought a tort claim against the penitentiary facility. On 10/09/2012 (as confirmed by the Vladimir Regional Court) the Leninskiy District Court of Vladimir awarded RUB 30,000 in non-pecuniary damages for having been beaten up under the authorities ’ control and dismissed the remainder of the claims.

3.

64761/13 Starikov v. Russia

Kemerovo Regional Court

Consistently refused

17/01/2014

The Appeal court supported the 1st instance court decision not to examine the applicant ’ s claim under A125.

31/10/2012

Police

Consistently refused

07/11/2012 - 12/12/2013

16 procedural documents in respect of refusal/quash/ legal appeal.

4.

71716/14 Zabiyaka v. Russia

14/01/2013

Investigator Mrs T.

Consistently refused

18/02/2013 - refusal to initiate a criminal case A125 complaint refused

(appeal - 07/07/2014,

first instance - 22/05/2014)

Criminal case not initiated, A125 complaint not granted

The investigator/courts acknowledged that the App was handcuffed to his bed. They claimed that he was suicidal (based on psychological assessment and the attempt to harm himself on 09/11/2011) and that these measures of restraint were necessary.

5.

372/15 Kudryavtsev v. Russia

Unknown

Prosecutor

Consistently refused

21/04/2015

The applicant then appeal against the prosecutor ’ s refusal, in vain

The prosecutor referred to Article 21 of the Police Act (ФЗ " О полиции ") stating that handcuffing was applied for the convoy and protection purposes

1. "Accompanying" information from IZ 47/1 with regard to the applicant 2. Number of co-detainees at the Dzerzhinsky District Court convoy premises, any specific incidents of the applicant ’ s violence or threats against the police officers and/or co-detained 3. Plan of the Dzerzhinsky District Court convoy premises

No.

Application No. and Title

APPENDIX No. 3 Other complaints under the well-established case-law

Complaints and events referred to by the applicants

1.

64761/13

Starikov v. Russia

Article 8- VISIT : placement in the remote detention facility. The applicant cannot maintain the family contacts. Appeal Moscow City Court 6/04/15.

2.

71716/14

Zabiyaka v. Russia

Art. 5 (3) DURDT - excessive length of pre-trial detention –25/10/2012-11/08/2014 detention orders based on the gravity of the alleged crimes