PYNKO v. RUSSIA and 8 other applications
Doc ref: 11133/11;52656/11;30722/12;68536/12;68556/12;32572/16;63421/16;72660/16;72665/16 • ECHR ID: 001-174511
Document date: May 24, 2017
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Communicated on 24 May 2017
THIRD SECTION
Application no 11133/11 Aleksandr Sergeyevich PYNKO against Russia and 8 other applications (see list appended)
STATEMENT OF FACTS
A. The circumstances of the cases
The applicants are all Russian nationals living in various regions of the Russian Federation. The facts of the cases, as submitted by the applicants, may be summarised as follows.
Between 2008 and 2015 the applicants were arrested by different law ‑ enforcement authorities, and, except in Mr Vorotnikov ’ s case (application no. 68536/12 ), prosecuted for and subsequently convicted of different types of criminal offences.
In all cases the police officers used physical force and/or special means (handcuffs) during the applicants ’ arrest. According to the applicants, the force used was excessive because they did not resist the arrest. They submitted medical certificates drawn up shortly after their respective arrests and demonstrating the existence of bodily injuries of different types and severity. Mr Pankov submitted that he had been examined by the doctors at the hospital but had been refused access to the documents confirming his injuries.
Mr Masalgin (application no. 30722/12) and Mr Grechin (application no. 32572/16) alleged in addition that they had also been beaten up while in police custody. Mr Fomin (application no. 68556/12) complained about the same treatment in police custody and a temporary detention facility.
The applicants complained about the excessive use of force to the domestic authorities. The domestic authorities refused to institute criminal proceedings. In all cases except two (applications no. 11133/11 lodged by Mr Pynko and application no. 72665/16 lodged by Mr Pankov ), these refusals were upheld by the domestic courts.
In Mr Pynko ’ s case (application no. 11133/11), the Klintsovskiy Town Court of the Bryansk Region found the refusal to open a criminal case unlawful and unsubstantiated and ordered the investigator to interview the applicant about his injuries and the circumstances in which they were caused.
In Mr Pankov ’ s case (application no. 72665/16), the domestic courts discontinued the proceedings as the superior investigator quashed the challenged refusal to open a criminal case as unlawful and unfounded and ordered to conduct a forensic medical examination of the applicant based on the medical documents.
The applicants ’ personal details as well as other relevant information about the circumstances of their respective arrests and their attempts to complain about ill-treatment at domestic level are summarised in the Appendix.
B. Relevant domestic law and practice
1. The Police Act
Sections 18-20 of the Police Act 2011 (Federal Law no. 3-FZ of 7 February 2011) provide that
- a police officer may use physical force, special means or a weapon during the arrest,
- a police officer shall ensure that a person injured receives first aid,
- when the physical force used results in the damage to health, and when special means or a weapon are used, a police officer shall submit a report on the use of physical force, special means or a weapon to his supervisor within twenty-four hours.
The Police Act 1991 (Federal Law no. 1026-I of 18 April 1991) and respective by-laws contained similar provisions.
2. Other by-laws
The Instruction on the police officers ’ execution of their obligations and rights in the police departments of the Ministry of the Interior after the persons are taken to the police custody (approved by the order no. 389 of the Ministry of the Interior of the Russian Federation on 30 April 2012) provides that
- a police officer on duty in the police custody shall inform his superior about all the cases when an arrested and taken to the police custody person has visible wounds, injuries or is in the state that requires urgent medical intervention;
- a police officer is to call an ambulance or take a person to a nearby hospital;
- a police officer is to find out the reasons and circumstances of the injuries sustained by the person concerned. In case the person concerned reports about violent actions that resulted in his injuries then the police officer is to receive a criminal complaint from the person, if not, then to draw up a reasoned report and register it in the Register of the criminal complaints.
The named instruction repeated the rules that were in force before its adoption.
COMPLAINTS
The applicants complain under Article 3 of the Convention about the excessive force used in the course of their arrests and about the lack of an effective investigation in this respect. They also complain under Article 13 of the Convention that they did not have an effective domestic remedy at their disposal. Mr Masalgin (application no. 30722/12), Mr Fomin (application no. 68556/12) and Mr Grechin (application no. 32572/16) in addition complain that the ill-treatment continued after their arrests.
Mr Mekhonoshin (application no. 52656/11 ) in addition complains under Article 5 § 1 of the Convention about his unrecorded detention at the police station between 4.40 a.m. and 9.30 a.m. on 15 August 2010.
COMMON QUESTIONS TO THE PARTIES
1. Regard being had to the medical certificates submitted by the applicants (for more details see the Appendix), were they subjected to ill ‑ treatment, in breach of Article 3 of the Convention, at the hands of police in the course of their arrest?
As regards the Government ’ s burden of proof
(a) have the domestic authorities discharged their burden of proof by providing a plausible or satisfactory and convincing explanation on how the applicants ’ injuries had been caused (see Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999 ‑ V , and Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000 ‑ VII)? 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 applicants ’ arrest, including the use of force against them (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 applicants ’ arrests and the medical evidence.
As regards the necessity and the proportionality of the force used
(b) was the recourse to physical force made strictly necessary by the applicants ’ own conduct (see Rizvanov v. Azerbaijan , no. 31805/06 , § 49, 17 April 2012)? In particular,
- did the State agents plan the arrest operations 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, Minikayev v. Russia , no. 630/08 , §§ 59-60, 5 January 2016 )?
2. Did the authorities carry out an effective official investigation into the applicants ’ allegations of ill-treatment in the course of their arrest as required by Article 3 of the Convention (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000 ‑ IV, Lyapin v. Russia , no. 46956/09 , § § 125-40 , 2 4 July 2014 )? In particular,
(a) in cases in which the applicants ’ arrests were carried out by masked officers, did they display visibly some anonymous signs allowing their identification and questioning in the event of challenges to the manner in which the operation was conducted (see Hristovi v. Bulgaria , no. 42697/05 , § 92, 11 October 2011, and Anzhelo Georgiev and Others v. Bulgaria , no. 51284/09 , § 73, 30 September 2014)?
3. Did the applicants have at their disposal an effective domestic remedy or a combination of remedies for their complaints under Article 3 of the Convention, as required by Article 13 of the Convention?
CASE SPECIFIC QUESTIONS
1. Application no. 52656/11
Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, was his detention between 4.40 a.m. and 9.30 a.m. on 15 August 2010 recorded, as required by Article 5 § 1 of the Convention?
The Government are requested to provide copies of the register of persons escorted to police stations ( книга / журнал учета лиц , доставленных в отдел внутренних дел ) and the register of de facto arrested persons ( реестр лиц , подвергнутых задержанию ) for the relevant period.
2. Applications nos. 30722/12, 68556/12 and 32572/16
1. Were the applicants subjected to ill ‑ treatment, in breach of Article 3 of the Convention, at the hands of police after their arrest?
2. Did the authorities carry out an effective official investigation into the applicants ’ allegations of ill-treatment after their arrest as required by Article 3 of the Convention?
APPENDIX
No.
Application
no .
Lodged on
Applicant name
date of birth
place of residence
nationality
represented by
Details about arrest, location of the police station,
arrest record
(if available)
Report drawn up by the police officers about the circumstances of the arrest and the use of force
Medical evidence:
date of examination,
document type
(date of the document)
Applicants ’ complaints about ill ‑ treatment to the domestic authorities
(reasons for refusals)
Applicants ’ trial and appeal courts ’ judgments
1.
11133/11
24/01/2011
Aleksandr Sergeyevich PYNKO
03/05/1974
Novozybkov
Russian
Viktoriya Yevgenyevna KOROTKOVA
18/04/2008
( at 4.30 a.m.)
Arrest at the applicant ’ s flat by the police officers of the Bryansk Region Department of the Federal Drug Control Service ( УФСКН по Брянской области )
Bryansk Region Department of the Federal Drug Control Service ( УФСКН по Брянской области )
No information
19/04/2008
Hospital report and records
(21/07/2008)
25/04/2008
SIZO report
(28/05/2008)
April 2008
First complaint to unspecified authorities
30/09/2008
Latest refusal to open a criminal case
(the applicant injured himself, explanation of injuries in the previous refusals - the applicant injured himself but the police handcuffed him to stop his disobedience)
30/04/2010
Klintsovskiy Town Court of the Bryansk Region
quashed the refusal
(the court ordered to interview the applicant about his injuries and the circumstances in which he was injured)
No information about further developments of the proceedings
14/05/2010
Klintsovskiy Town Court of the Bryansk Region
30/07/2010
Bryansk Regional Court
Convicted of attempted drug-dealing
2.
52656/11
11/07/2011
Aleksandr Mikhaylovich MEKHONOSHIN
03/06/1992
Yusva
Russian
15/08/2010
( at 4.40 a.m.)
Arrest outdoors by the traffic police officers
Police department, Yusvinskiy municipal district, Yusva , Perm Region ( ОВД по Юсьвинскому муниципальному району , Юсьва , Пермский край )
15/08/2010
( at 9.30 a.m.)
Released
No information
18/08/2010
Medical examination act no. 838
02/09/2010
Forensic medical examination report
no. 838 доп
25/08/2010
First complaint to the investigative committee of the Prosecutor ’ s office in the Perm Region
06/09/2010
Refusal to open a criminal case
13/04/2011
Perm Regional Court
(the applicant disobeyed the police orders, the police lawfully used physical force and handcuffs to overcome the applicant ’ s resistance)
Convicted of drunken driving, no details
3.
30722/12
28/04/2012
Mikhail Nikolayevich MASALGIN
11/03/1968
Moscow
Russian
Anton Igorevich ZVEZDKIN
21/08/2008
( at around 1.10 a.m.)
Arrest outdoors
Police department “ Khamovniki ”, Moscow ( ОВД « Хамовники », Москва )
21/08/2008
( at around 3 p.m.)
Released from hospital
No information
Photos
21/08/2008
Extract from the applicant ’ s medical card no. 6825/08
09/09/2008
Extract from the applicant ’ s medical card
11/09/2008
Certificate of the hospital with a doctor ’ s recommendation
04/05/2009
Forensic medical examination report no. 1238- АМ
(examination conducted on the basis of the documents)
Applicant ’ s medical card
06/06/2009
Medical epicrisis no. 14418\668
21/08/2008
First complaint to the prosecutor
16/12/2010
Latest refusal to open a criminal case
31/10/2011
Moscow City Court
(the physical force and handcuffs were used lawfully as the applicant assaulted a police officer)
30/04/2010
Khamovnicheskiy District Court of Moscow
Convicted of use of violence against a public officer but exempted from criminal liability due to insanity, compulsory medical treatment is applied
4.
68536/12
17/10/2012
Sergey Sergeyevich VOROTNIKOV
24/08/1993
(a minor, 17 years old at the time of events)
Moscow
Russian
Igor Leonidovich TRUNOV
20/04/2011
( at around 4.30 p.m.)
Arrest outdoors
Police department, Shchukino district, Moscow ( ОВД по району Щукино г. Москвы )
20/04/2011
( at around 5.40 p.m.)
Released and taken to the hospital
No information
20/04/2011 – 10/05/2011
Medical certificates of the hospital
No information as to the date
Forensic medical examination act no. 7420 м /8448
(examination conducted on the basis of the documents)
20/04/2011
First complaint to the police
25/07/2011
The latest refusal to open a criminal case
18/04/2012
Moscow City Court
(the physical force, expressed in forced placement of the applicant into a police car, was lawfully used to overcome the applicant ’ s resistance to comply with the police officers ’ order)
Neither administrative nor criminal proceedings were instituted against the applicant
5.
68556/12
10/09/2012
Denis Eduardovich FOMIN
26/09/1989
Petrozavodsk
Russian
Nataliya Yevgenyevna FOMINA
17/12/2010
( at around 3 a.m.)
Arrest at his flat
Prosecutor ’ s office, South-West Administrative Circuit, Moscow ( Прокуратура ЮЗАО г. Москвы )
17/12/2010
( at 7.50 a.m.)
Arrest record drawn up
No information
26/12/2010
SIZO certificate, medical act and report
11/04/2011
SIZO certificate
06/04/2011
First complaint to the investigative committee
22/08/2011
Latest refusal to open a criminal case
(the physical force and handcuffs were used to overcome the applicant ’ s resistance to comply with the police officers ’ order)
The domestic courts that convicted the applicant examined his plea about ill ‑ treatment as well
09/02/2012
Zyuzinskiy District Court of Moscow
18/04/2012
Moscow City Court
Convicted of infliction of grievous bodily injuries that led to the victim ’ s death
6.
32572/16
26/05/2016
Sergey Ivanovich GRECHIN
13/08/1969
Perm
Russian
Darya Sergeyevna PIGOLEVA
23/05/2015
( at around 1 p.m.)
Arrest outdoors by the traffic police officers
Police department, Permskiy District ( отдел МВД по Пермскому району )
23/05/2015
Released
23/05/2015
23/05/2015
Certificate of the traumatology centre
26/05/2015
Forensic medical examination report no. 1837
23/05/2105
First complaint to the police
15/06/2015
Refusal to open a criminal case
26/11/2015
Perm Regional Court
(the applicant was handcuffed due to his aggressive behaviour, no evidence that the police officers exceeded their authority, intentional infliction of other injuries was not confirmed)
17/03/2016
Motovilikhinskiy District Court of Perm
Convicted of refusal to undergo a medical examination in respect of alcoholic intoxication
16/05/2016
Permskiy District Court
Convicted of use of violence against a public officer
7.
63421/16
29/10/2016
Viktor Sergeyevich KOVESHNIKOV
02/02/1991
Tomsk
Russian
Yevgeniy Dmitriyevich YAZYKOV
06/02/2015
( at around 1 p.m.)
Arrest outdoors during an undercover operation “surveillance” by the police officers of Tomsk Region Department of the Federal Drug Control Service ( УФСКН по Томской области ) in plain clothes
Tomsk Region Department of the Federal Drug Control Service ( УФСКН по Томской области )
06/02/2015
( at 8 p.m.)
Arrest record drawn up
06/02/2015
06/02/2015
Certificate of the hospital
07/02/2015
SIZO act
11/02/2015
SIZO medical report
30/04/2015
Forensic medical examination report
no. 868-M
(examination conducted on the basis of the documents)
01/07/2015
Forensic medical examination report
no. 1249- Д
(examination conducted on the basis of the documents)
Forensic medical examination report
no. 2114-Д
(examination conducted on the basis of the documents)
19/02/2015
First complaint to the prosecutor
19/02/2016
Latest refusal to open a criminal case
03/10/2016
Tomsk Regional Court
(the police officers used physical force and handcuffed the applicant to overcome his resistance and attempts to run away during the arrest, no evidence of excessive use of force)
22/03/2016
Kirovskiy District Court of Tomsk
09/06/2016
Tomsk Regional Court
Convicted of attempted drug-dealing
8.
72660/16
10/11/2016
Sergey Vasilyevich SEMENOV
03/04/1977
Barnaul
Russian
07/09/2013
( at around 3 p.m.)
Arrest outdoors by the police officers of the special security unit ( ОМОН ) in masks
Police department, Biysk
( СУ МУ МВД России « Бийское »)
07/09/2013
( at 11 p.m.)
Arrest record drawn up
No information
07/09/2013
Medical certificate of the ambulance
10/09/2013
Forensic medical examination report
no. 2874
11/09/2013
First complaint to the prosecutor
21/03/2016
Latest refusal to open a criminal case
04/08/2016
Altay Regional Court
(physical force was used during the arrest in accordance with the law and the situation to overcome the applicant ’ s resistance as the applicant blocked himself in a car and had a gun, the forensic medical examination does not contain a conclusion that the applicant ’ s injuries were caused by the excessive force used by the police officers)
No information about conviction
9.
72665/16
11/11/2016
Danil Nikolayevich PANKOV
11/04/1979
Sorda
Russian
13/03/2014
( at 4 a.m.)
Arrest outdoors
13/03/2014
Photo
Applicant ’ s examination in the hospital of St Petersburg (no other details)
17/10/2014
First complaint to the investigative committee
05/06/2015
Latest refusal to open a criminal case
(was quashed by the superior on 12/02/2016, no further information)
16/06/2016
St Petersburg City Court
(discontinued the proceedings, as the refusal to open a criminal case was quashed)
(the police officers justified the use of force by the applicant ’ s resistance, his attempt to run away and information that the applicant was armed)
No information about further developments of the proceedings
No information about conviction