Communicated on 8 December 2017

THIRD SECTION

Application no. 14043/09 Sergey Aleksandrovich KAPRANOV against Russia lodged on 16 February 2009

STATEMENT OF FACTS

The applicant, Mr Sergey Aleksandrovich Kapranov , is a Russian national who was born in 1982 and is serving a prison sentence in Yakutsk.

The circumstances of the case

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

On 28 December 2006 the applicant was arrested on suspicion of involvement in six incidents of serious violent crime. Pending trial, he was detained in remand prison IZ-63/1 in Samara.

On unspecified dates the applicant ’ s relatives retained four lawyers, Mr M., Ms Ta., Ms To. and Mr Kh .

While in the remand prison, the applicant was allegedly ill ‑ treated by his inmates, who were acting on investigators ’ instructions with a view to forcing him to make self-incriminating statements. In particular, in the applicant ’ s submission, the inmates burned his face with cigarette butts.

On 10 January 2007 the applicant informed the investigator that he no longer wished to be represented by the retained counsel. Later, on 18 and 31 January and on 2 and 5 February 2007 he asked the investigator to consider his decision not to be represented by the retained lawyers null and void as it had been given under duress.

On 29 and 31 January 2007 respectively Mr Kh . and Ms Ta. visited the applicant and noticed injuries on his face. He complained of pain in his chest area and explained that he had been placed in a cell where he had been ill-treated by inmates. The lawyers noted this in the interview records and demanded that he be given a medical examination.

As of 5 February 2007 the retained lawyers were repeatedly denied access to the applicant because the authorities argued that he had refused their services in writing.

At some point the applicant made separate “statements of surrender and confession” in respect of each incident. In particular, on 9 February 2007, in the presence of a State ‑ appointed lawyer, Mr L., the applicant admitted his guilt in respect of one of the incidents. Later he retracted his confession regarding each incident. Mr L. also participated in a number of investigative measures and did not object to any of the investigators ’ actions.

On an unspecified date the applicant underwent a medical examination. The related report noted superficial wounds to his forearms, a bruise on his chest, and first-degree burns on his face.

The retained lawyers unsuccessfully complained to the remand prison governor and prosecutor ’ s offices at different levels that they had been denied access to their client.

On 16 April 2007 the Samara regional prosecutor ’ s office refused to open criminal proceedings into the applicant ’ s alleged ill ‑ treatment by inmates for the following reasons. When questioned in the absence of the retained lawyers, he had submitted that he had wounded his forearms himself with a nail and had burned his face when he “had fallen asleep in his cell with his face next to the radiator”, and that the bruise on his chest was the result of him falling off a bed.

Ms Ta., Ms To. and Mr Kh . brought civil proceedings against the remand prison officers, arguing that they had acted unlawfully in denying them access to the applicant. The Samara Regional Court dismissed their claims by a final judgment on 20 August 2007.

At some point the investigation file was sent to the Samara Regional Court for trial. During the first trial hearing, the applicant was represented by Mr L., despite his objections. He was subsequently represented by Ms Ta. and Ms To.

The applicant submitted before the trial court that he had made self ‑ incriminating statements in respect of each incident under duress. On an unspecified date the Samara Regional Court ordered an inquiry into the allegations of ill-treatment. On 22 February 2008 the Samara regional body of the Investigative Committee of the Prosecutor ’ s Office of Russia refused to open a criminal case for the reason that the recorded injuries had been self-inflicted.

On 28 April 2008 the Samara Regional Court convicted the applicant as charged in respect of all six incidents, in particular, on the basis of the self ‑ incriminating statements made in the presence of Mr L. The applicant ’ s references to his alibi, as well as the allegations of ill-treatment, were summarily dismissed.

On 26 June 2008 the Council of Samara Bar Association, on the basis of a complaint by the applicant, found that Mr L. had breached the advocate ’ s code of ethics by failing to effectively defend the applicant in the course of the pre-trial investigation and reprimanded him.

On 8 September 2008 the Supreme Court of Russia modified the conviction slightly and sentenced the applicant to twenty-two years ’ imprisonment. The allegations of ill-treatment were summarily dismissed as unsubstantiated.

The applicant later unsuccessfully complained to the Samara regional prosecutor ’ s office that he had been ill-treated and denied the right to legal assistance of his own choosing. He also complained to the domestic courts about the prosecutors ’ refusals to carry out a comprehensive investigation into his allegations.

COMPLAINTS

1. The applicant complains that while in pre-trial detention he was ill ‑ treated, and that the investigative authorities failed to carry out an effective investigation into the alleged ill ‑ treatment. He invokes Articles 3 and 13 of the Convention.

2. He also complains under Article 6 §§ 1 and 3 (c) of the Convention that at the pre-trial stage he was denied the right to defend himself through legal assistance of his own choosing.

QUESTIONS TO THE PARTIES

1. Has there been a violation of Article 3 of the Convention in the present case?

(a) In particular, having regard to the injuries found on the applicant after the time spent in State custody, such as bruises and burns, has the applicant been subjected to treatment in breach of Article 3 of the Convention by either inmates or State agents? If so, in respect of the former, was the violence incited or sanctioned by State agents with a view to obtaining self-incriminating statements? If so, were the applicant ’ s injuries the result of treatment for which the respondent State bore responsibility (see, mutatis mutandis , Shlychkov v. Russia , no. 40852/05 , § 68, 9 February 2016) ? If not, did the authorities know or ought to have known that the applicant was at risk of being subjected to ill ‑ treatment at the hands of his inmates, and if so, did the administration of remand prison IZ-63/1 in Samara take, within the limits of their official powers, reasonably available measures to eliminate that risk and to protect the applicant from abuse (see Premininy v. Russia , no. 44973/04 , § 84, 10 February 2011, and M.C. v. Poland , no. 23692/09 , § 89, 3 March 2015) ?

(b) 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 Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000 ‑ VII, and Bouyid v. Belgium [GC], no. 23380/09, §§ 83 et seq., ECHR 2015)?

(c) Did the authorities carry out an effective investigation, in compliance with the procedural obligation under Article 3 of the Convention (see Denis Vasilyev v. Russia , no. 32704/04 , § 100, 17 December 2009, and Lyapin v. Russia , no. 46956/09, §§ 125-40, 24 July 2014), having regard to the investigating authorities ’ refusal to open a criminal case and investigate the applicant ’ s allegations of ill-treatment , and the investigating authorities ’ inability to implement full investigative measures within the framework of the pre-investigation inquiries?

2. Has there been a violation of Article 6 §§ 1 and 3 (c) of the Convention in the course of the criminal proceedings against the applicant?

(a) In particular, in the light of the criminal proceedings as a whole, did the restriction on the applicant ’ s free choice of defence counsel “adversely affect” the rights of the defence to such an extent as to undermine their overall fairness (see Dvorski v. Croatia [GC], no. 25703/11, § 81, ECHR 2015)? Were there “relevant and sufficient reasons” in the interests of justice to restrict the applicant ’ s access to Ms Ta., Ms To. and Mr Kh .?

(b) Did the applicant waive his right to be represented by a lawyer of his own choosing? If so, was the purported waiver “knowing and intelligent” ( ibid., § 101)? Was it attended by minimum safeguards commensurate to its importance (see Simeonovi v. Bulgaria [GC], no. 21980/04, § 115, ECHR 2017 (extracts))?

(c) On what dates did the applicant sign each “statement of surrender and confession”? What was the nature of the evidence obtained from the applicant at the pre ‑ trial stage in the absence of Ms Ta., Ms To. and Mr Kh .? Did this evidence form an integral or significant part of the probative evidence upon which the applicant ’ s conviction was based? Did the applicant have the opportunity to challenge the authenticity of the evidence and oppose its use? Considering the findings of the Council of Samara Bar Association regarding Mr L. ’ s behaviour, do the circumstances in which such evidence was obtained cast doubt on its reliability or accuracy (see Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 274, ECHR 2016)?

3. The Government are invited to submit copies of all material related to the applicant ’ s complaint(s) of ill-treatment while in remand prison IZ ‑ 63/1 in Samara, including medical certificates and the authorities ’ decisions regarding the complaints, as well as copies of all “statements of surrender and confession” specifying their dates and bearing marks to show whether they had been made in the presence of a lawyer.