Communicated on 7 March 2018

THIRD SECTION

Application no. 3490/11 Andrey Grigoryevich KOTKOV against Russia lodged on 29 November 2010

STATEMENT OF FACTS

The applicant, Mr Andrey Grigoryevich Kotkov , is a Russian national, who was born in 1983 and is currently serving a sentence of imprisonment in Naryshkino , correctional colony IK-5, Orel Region. He is represented before the Court by Mr N. Shakhnazarov , a lawyer practising in Lyubertsy , Moscow Region.

A. The circumstances of the case

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

1. The applicant ’ s arrest and alleged ill-treatment

At around 2 p.m. on 3 March 2009 the applicant was arrested in the hall of the block of flats he lived in the Moscow Region on suspicion of having committed a robbery. The police officers dragged the applicant into his flat with his arms twisted behind his back, knocked him to the floor and hit him in the head.

After the arrest the police officers brought the applicant first to a forest, where they punched and kicked him all over body and demanded that he confess to crimes committed in Orel, then they brought him to the Department of the Ministry of Interior in Moscow, where the beatings continued and the record of the applicant ’ s arrest was drawn up.

In the morning of 4 March 2009 the applicant was brought to the police department in Orel, where the applicant ’ s beating continued. As a result of the beatings the applicant confessed to robberies. The confession was made in the absence of a lawyer.

Later on the same day the applicant took part in the operational-search action “the questioning” ( ОРМ “ опрос ” ), in the course of which he confessed again to the robberies. The questioning was conducted in the absence of a lawyer.

Thereafter, the applicant was questioned as a suspect in the presence of a lawyer Sh. The applicant denied his guilt, complained to the investigator that he had been ill-treated and confessed under duress, and requested to conduct his forensic medical examination.

Later on the same day the applicant was taken to the hospital in Orel. A doctor recorded soft tissue bruises on the applicant ’ s face, head and the small of his back. After that the applicant was taken to a temporary detention facility.

On 10 March 2009 a forensic medical examination of the applicant was conducted. No injuries were recorded on the applicant ’ s body.

2. Investigation of the alleged ill-treatment

On 5 March 2009 the applicant ’ s mother and his lawyer complained about the applicant ’ s ill-treatment to the Prosecutor ’ s Office and to the Investigative Committee.

Over a period of 2009-2013 investigators of the investigative committee of Orel carried out a pre-investigation inquiry into the alleged ill-treatment of the applicant and issued seven refusals to open a criminal case. These refusals were revoked by the investigators ’ superiors.

On 29 November 2013 criminal proceedings into the fact of alleged ill ‑ treatment were opened, but then they were terminated four times in a row due to the lack of corpus delicti in the police officers ’ actions. The investigators concluded that the applicant resisted the arrest, and thus the police officers lawfully used wrestling techniques and handcuffed him to restrain. The latest decision that quashed the decision to terminate the criminal case was delivered on 27 January 2016 and the prosecutor ordered an additional investigation.

On 31 August 2016 the Zavodskoy District Court of the Orel Region quashed the prosecutor ’ s decision of 27 January 2016, upheld the termination of the criminal proceedings, and concluded that the investigation had been duly and comprehensively conducted. On 11 October 2016 the Orel Regional Court upheld the decision of the District Court on appeal.

3. Criminal proceedings against the applicant

On 14 April 2010 the Orlovskiy District Court of the Orel Region convicted the applicant of two counts of robbery in conspiracy. At trial the applicant denied his guilt. The trial court extensively relied on the applicant ’ s surrender with confession and “questioning” of 4 March 2009 to secure his conviction. It also relied on the victim ’ s testimony in one count of robbery, who identified the applicant. The trial court held that the presence of a lawyer was not obligatory under the domestic law for surrender with confession and “questioning”, and that the applicant ’ s allegations of coercion were unfounded. The applicant appealed.

On 8 June 2010 the Regional Court qualified both counts of robbery as an aggravated robbery, reduced the sentence and upheld the rest of the conviction.

B. Relevant domestic law and practice

For a general summary of the relevant domestic law, see Lyapin v. Russia (no. 46956/09, §§ 96-101, 24 July 2014) , and Turbylev v. Russia ( Turbylev v. Russia , no. 4722/09 , §§ 46-56, 6 October 2015).

COMPLAINTS

The applicant complains under Article 3 of the Convention that on 3 ‑ 4 November 2009 he was ill-treated in police custody with a view of extracting confession and that no effective investigation took place in respect of his allegations of ill-treatment. The applicant additionally complains under Article 6 §§ 1 and 3 (c) of the Convention about unfair trial on account of the use of his confession in the form of surrender with confession and “questioning” obtained under coercion and in the absence of a lawyer.

QUESTIONS TO THE PARTIES

1. Having regard to the injuries found on the applicant after the time spent by him in State custody, was the applicant 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 applicant ’ s injuries were caused (see Selmouni , v. France [GC], no. 25803/94, § 87 , ECHR 1999 ‑ V ; Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000 ‑ VII; and Bouyid v. Belgium [GC], no. 23380/09, § 83 and further, ECHR 2015 )? In particular,

- did the police officers report to their supervisor about the use of physical force or/and special means during the arrest (see Shamardakov v. Russia , no. 13810/04 , § 133, 30 April 2015) ?

- if so, did the reports provide detailed explanation about the circumstances of the applicant ’ s arrest, including the use of force against him (see Türkan v. Turkey , no. 33086/04, § 48, 18 September 2008 ) ?

- does the Russian legislation and/or regulatory framework provide for an obligation to take an apprehended person without delay before a medical professional, notably with a view of recording the injuries sustained by an apprehended person prior or during the arrest?

- if so, was this obligation complied with in the present cases ( Mammadov v. Azerbaijan , no. 34445/04, § 65, 11 January 2007 ) ?

The Government are invited to produce documentary evidence, including the reports drawn up by police officers about the circumstances of the applicant ’ s arrest and the medical evidence.

3. Was the recourse to physical force made strictly necessary by the applicant ’ s own conduct (see Rizvanov v. Azerbaijan , no. 31805/06 , § 49, 17 April 2012)? In particular,

- did the State agents plan the arrest operation in advance?

- did they have sufficient time to evaluate the possible risks and to take all necessary measures for carrying out the arrest (see Rehbock v. Slovenia , no. 29462/95, § 72, ECHR 2000 ‑ XII; Grigoryev v. Russia , no. 22663/06, § 83, 23 October 2012; Davitidze v. Russia , no. 8810/05 , § 90, 30 May 2013; and Minikayev v. Russia , no. 630/08 , §§ 59-60, 5 January 2016)?

4. Did the authorities carry out an effective official investigation into the applicant ’ s allegations of ill-treatment in the course of his arrest as required by Article 3 of the Convention (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000 ‑ IV, and Lyapin v. Russia , no. 46956/09 , § § 125-40 , 2 4 July 2014 )?

5. Having regard to the use of evidence in the applicant ’ s criminal trial, which was allegedly obtained as a result of the applicant ’ s ill-treatment by police officers, and in the absence of a lawyer, did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 §§ 1 and 3 (c) of the Convention (see, Gäfgen v. Germany [GC], no. 22978/05, §§ 165-66, ECHR 2010, and Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others , § 303, ECHR 2016) ?