Lexploria

Communicated on 4 December 2018

THIRD SECTION

Application no. 39619/09 Konstantin Viktorovich ISHEVSKIY against Russia and 5 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.

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

The table of cases:

No.

Application number

Introduction date

Name of the applicant(s) ; date of birth

place of residence

Represented by

1.

39619/09

19/06/2009

Konstantin Viktorovich ISHEVSKIY 23/08/1977 Irkutsk

2.

24534/10

23/03/2010

Sergey Ivanovich ZAKALYAYEV 29/04/1959 Bagayevskaya

3.

53617/10

20/07/2010

Yevgeniy Vladimirovich TROFIMOV 02/08/1973 Almetyevsk

4.

17241/12

29/02/2012

Manvel Amikovich SAARYAN 21/03/1987 Novorossiysk

Vladimir Vladimirovich PETENKO 05/12/1976 Dvubratskiy

Ruzanna Rafaelovna GALUSTYANTS

5.

70526/13

14/10/2013

Denis Nikolayevich PRUDNIKOV 31/05/1981 Orel

Irina Mikhaylovna PRUDNIKOVA

6.

71651/13

22/10/2013

Aleksandr Ivanovich MICHURIN 27/11/1975 Sorda

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. In respect of cases nos. 53617/10, 17241/12, 70526/13, 71651/13, having regard to the use of the applicants ’ self-incriminating statements in the criminal cases against them, which were allegedly obtained as a result of his ill-treatment by the police and in the absence of a lawyer, did the applicants have a fair hearing, in accordance with Article 6 § 1 of the Convention (see Turbylev v. Russia , no. 4722/09, 6 October 2015)? At trial, did they apply for such evidence to be declared inadmissible? If so, what were the grounds for such applications and how were they decided by the domestic courts?

5. In case no. 17241/12 was the fact that witness A. not questioned and cross-examined in court and the fact that the courts relied on statements on anonymous witnesses Z and P compatible with Article 6 of the Convention? Were the criminal proceedings against the applicant fair within the meaning of that provision?

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.

39619/09 Ishevskiy

v. Russia

03/06/2008

at 07:55; Arrested on suspicion of murder

Voronezh Region, Rossosh, at the train

Police unit, Kominternovsky District of Voronezh

After arrest on 03/06/2008

Kominternovsk i y Department of the Interior –( РУВД ) of Voronezh

Blows over different parts of body (stomach, chest, hands).

Police officers

03/07/2008

Forensic examination report

Voronezh Regional Forensic Bureau

Bruise on the front surface of stomach leftwards, bruise on the chest, wound on the left hand, appeared out of the impact of hard blunt object, 1-3 days before the conduct of examination.

2.

24534/10 Zakalyayev

v. Russia

01/08/2008

at 15:00

Arrested on suspicion of murder

Rostov Region, Bagayevskaya Street

Bagaevsky OVD, Rostov Region

03/08/2008

Bagaevsky OVD, Rostov Region

Hitting head with a plastic bottle filled with water, hitting ribs in the heart area, stomping on a belly.

Police officers

20/08/2008

Forensic examination report

Forensic Bureau of the Ministry of Healthcare of the Rostov Region

Rib fracture, inflicted by the impact of the hard blunt object.

03/08/2008

Bagaevsky OVD, Rostov Region

Beating in the chest area.

Police officers

3.

53617/10 Trofimov

v. Russia

15/09/2009

at 18 :00

Arrested by the traffic police on suspicion of murder, taken to the police station of Naberezhnyye Chelny by policemen N

and B.

Kazan

Traffic police

15/09/2016

The Naberezhnyye Chelny police station

When policemen N and B came to take the applicant from the traffic police post, they started to hit the applicant in his head, stomac and back. They then took him to the Naberezhnyye Chelny police station where they continued to beat the applicant. They also electrocuted and handcuffed him and hit him with a rubber truncheon.

Policemen N. and B.

22/09/2009

Forensic examination report

No. 5972

Forensic Bureau of the Republic of Tatarstan

Multiple injuries and bruises all over the applicant ’ s body (including wrists, elbows, knees and buttocks). Bruises originated from approximately four to ten days prior to examination, injuries - from four to seven days.

04/02/2013

Judgment of the Supreme Court of the Tatarstan Republic (appeal)

Supreme Court of the Tatarstan Republic

The court found that the applicant indeed was left without food during the period from his arrest on 16 September 2009 (at 24:10) until 18/09/2009 (19:00) in KAZ

4.

17241/12 Saaryan and Petenko

v. Russia

Applicant S

23/03/2010

at 09:30

Krasnodar region,

Novorossiysk

Police

Arrest on charges of armed robbery

During arrest on 23/03/2010 at 09:30

Novorossiysk, Krasnodar region

Multiple unspecified blows, a sack was put on the applicant S. ’ s head.

Police and armed men in masks

24/03/2010

2 Reports

Police of Krasnoarmey-skiy district, Krasnodar region

Multiple bruises on dorsum, bruise on right oxter, bruise on left hip". "Contused wound of the forehead, multiple bruises on dorsum, bruise on right oxter". Both rapports contain a statement that the applicant received the injuries as a result of falling from a staircase on 22/03/2010 - which explanation he subsequently contested.

In detention from 23/03/2010 to 25/03/2010

OVD Krasnoarmeyskiy district, Krasnodar region

Mulitiple unspecified blows for about an hour, torture with electric current (electrodes connected to his fingers), verbal offences, all of which led to the Applicant S. ’ s suicide attempt on 25/03/2010.

Police officers U., G. and others

26/03/2010

Expert statement

Forensic Bureau of Krasnodar region

Suffusions on the belly-band surface of the upper chest, left-hand side, left middle third of the arm, upper third of the femur, exterior side.

Applicant P.

26/03/2010

Moscow region, Domodedovo airport

Police

Arrest on charge of murder

5.

70526/13 Prudnikov

v. Russia

12/05/2012 at 8:20

Orel

Police of Orlov Region

Stopped and apprehended on the highway Orel-Bryansk, brought to the 6th Police Department of Orel Region

12/05/2012 from 9.00

to 24:50.

Orel ,Police Department of Orel Region, Rusanova Str. 47.

The applicant was allegedly beaten at the Police Department over the head and body by hands and plastic bottle filled with water.

Unknown police officers

15/05/2012

Forensic Report N 1165/3 refers to medical examination 13/05/12

State Forensic Bureau of Orlov Region

Bruise on the left elbow, contusion of the chest and head

6.

71651/13 Michurin

v. Russia

11/12/2010

Nizhniy Novgorod

Police

Arrest on charge of murder

During detention on 11/12/2010

ORCH, Nizniy Novgorod

Blows on belly, right eye, deprivation of oxygen with putting on a gas mask, he was put laying on the floor, with a policeman sitting on a chair put on his back, torture with electric current (electrodes connected to his lumbus)

3 police officers, including L.

21/12/2010

Medical certificate

IZ-1 Nizhniy Novgorod

Subcutaneous hemorrhage of blue-green colour in periorbital zone. The medical examination was held on 13/12/2010.

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.

39619/09 Ishevskiy v. Russia

18/06/2008

Investigative Committee, Kominternovsky District of Voronezh

Consistently refused

27/06/2008

The Investigative Committee several times refused to open an investigation. The applicant challenged refusal in the national court, but to no avail (Decision of the Kominternovsky District Court of Voronezh of 08 December 2008), as the decision to refuse to open an investigation was quashed by the investigator just before the hearing.

The decision to refuse to open an investigation was quashed many times. Challenging the decision in court did not bring any results. The court ’ s examination of the applicant ’ s complaints was not thorough, as only full criminal investigation of the applicant ’ s complaints could have confirmed or rebutted his complaints.

2.

24534/10 Zakalyayev v. Russia

Unspecified date

Prosecution of the Rostov Region

Consistently refused

12/10/2009

The prosecutor ’ s authority refused to open an investigation. Challenging that decision to the court was of no avail (Decision of the Bagayevskaya District Court of the Rostov Region of 27/02/2010). The applicant ’ s arguments were analyzed by the court in the main criminal proceedings, who questioned the witnesses of the alleged torture (Judgment of the Bagayevskaya District Court of the Rostov Region of 15/10/2009).

No effective investigation of the applicant ’ s injuries was held. Raising this argument in criminal proceeding did not bring any results.

3.

53617/10 Trofimov v. Russia

14/10/2009

Prosecutor of Naberezhnyye Chelny

Consistently refused

23/10/2009 - first refusal to initiate criminal proceedings. Last decision - 03/08/2010, Supreme Court of the Tatarstan Republic (cassation appeal).

The applicant challenged second refusal of 12/12/2009. His Article 125 complaint was dismissed by a final decision (cassation appeal) of 2/11/2010. The applicant then applied with one more Article 125 complaint - final decision - cassation appeal of 03/08/2010.

Failure to properly assess the forensic examination report; no version as to the origin of injuries.

24/02/2010

trial hearing

Naberezhnochelninskiy City Court

Consistently refused

The applicant complained about his ill-treatment during his trial. Final decision - 27/04/2010, Supreme Court of the Tatarstan Republic (cassation appeal) - heard on the merits

The applicant ’ s complaint was heard on the merits. The courts concluded that the applicant did not have an arguable claim.

Failure to properly consider the forensic report; the courts only stated that the applicant might have been injured during arrest without further assessment of proportionality of the use of force.

4.

17241/12 Saaryan and Petenko

v. Russia

05/05/2010 and subsequently

Investigative committee

Consistently refused

Refusals on 15/05/2010, 29/09/2010, 10/11/2010

No criminal case was opened. The applicant ’ s lawyer contested that in the main proceedings (appeal) and separately (the first instance court decision dated 13/02/2012 to dismiss the request for hearing).

5.

70526/13 Prudnikov v. Russia

11/07/2012

Investigative Committee

Consistently refused

21/07/2012, 10/11/2012,11/01/2013, 08/02/2013, 03/04/2013

no investigation

no complaint under Art.125

6.

71651/13 Michurin v. Russia

17/12/2010

Investigative committee

Consistently refused

27/12/2010

No criminal case was opened. The refusal decision was contested, but the complaints of the applicant ’ s lawyer were rejected by the courts on 18/08/2011 (first instance), 13/03/2012 (appeal), and in supervisory review on 20/06/2012 (Regional Court) and on 20/02/2013 (Supreme Court).

Initial complaint was lodged by the applicant ’ s wife. It should be noted that the applicant stated, orally and in writing, on 11/12/2010, that he got the hematoma in the right orbit zone after accidentally falling on a car. Authorities insist on that explanation.

No.

Application no. and case title

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

Complaints and events referred to by the applicants

1.

39619/09

Ishevskiy v. Russia

Art. 5 – 1 – unlawful deprivation of liberty, including unrecorded detention and detention without a judicial order and any other legal basis - 03/06/2008 (07:55) - 05/06/2008 (15:30) The detention was unrecorded until 20:00, 3/06/2008. The time limit of 48 hours, provided in the national law before being brought before the judge after actual arrest, was exceeded. The applicant challenged the lawfulness of his detention in court, but his claim was rejected (final decision - Cassation Decision of the Voronezh Regional Court of 09/04/2009)

2.

53617/10

Trofimov v. Russia

Art. 6 – 1 Turbylev type – The applicant confessed to the murder and theft. See surrender and confession of 16/09/2009. In addition, the arrest record was drafted on the same day - the applicant , when signing, wrote that he did not agree with his arrest. The courts, in addition to other items of evidence, used the applicant ’ s statement as a proof of his guilt

3.

17241/12

Saaryan and Petenko v. Russia

Art. 6 – 1 Turbylev type – 23/03/2010 to 25/03/2010 Forced confessions in absence of a lawyer (not only a lawyer of the Applicant S. ’ s choosing, but any lawyer, despite signatures on relevant documents, which allegedly were added later)

Article 6 § 3 (d) – a key witness A. was not questioned in courts, courts relied on the statements of on anonymous witnesses Z. and P.

4.

70526/13

Prudnikov v. Russia

Art. 6 – 1 Turbylev type – On 17/07/2014 the Orlov Regional Court acting on appeal did not exclude statements obtained allegedly under duress/as a result of ill-treatment without proper examination.

Art. 5 – 1 – unlawful deprivation of liberty, including unrecorded detention and detention without a judicial order and any other legal basis – on 12/05/2012 from 8.30 to 23.30. Zheleznodorozhniy District Court of Orlov acknowledged unlawfulness of unrecorded arrest until 23.30

Art. 5 (3) - excessive length of pre-trial detention – 12/05/12 to 16/07/14 extended due to gravity of charges (numerous instances of carjacking by a group

5.

71651/13

Michurin v. Russia

Art. 6 – 1 Turbylev type – Complaint about forced confessions in absence of a lawyer being used for his conviction (raised in appeal)

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ISHEVSKIY v. RUSSIA and 5 other applications

ISHEVSKIY v. RUSSIA and 5 other applications

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