Lexploria

Communicated on 13 March 2017

THIRD SECTION

Application no 42900/14 Denis Nikolayevich DRUZHKOV against Russia and 9 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 2006 and 2015 the applicants were arrested by different law ‑ enforcement authorities, and, except in Mr Verbitskiy ’ s case (application no. 31915/14), prosecuted for and subsequently convicted of different types of criminal offences. For example six applicants were convicted of drug related offences.

The police officers used physical force and/or special means (handcuffs, rubber truncheons) during the applicants ’ arrest. According to the applicants the use of force was excessive because they did not resist the arrest. All applicants submitted medical certificates drawn up shortly after their respective arrests and demonstrating the existence of bodily injuries of different types and severity.

Mr Nakagutov (application no. 42417/13), Mr Vasilyev (application no. 42438/15), Mr Verbitskiy (application no. 31915/14) and Mr Sokolov (application no. 45235/16) alleged in addition that they had also been beaten up while in police custody.

The applicants unsuccessfully complained about the excessive use of force to the domestic authorities. In all cases, except two, the prosecutors or investigators refused to institute criminal proceedings and their refusals were subsequently upheld by the domestic courts.

In the Mr Latypov ’ s case (application no. 48121/13), the Sovetskiy District Court of Ufa found such refusal to be unlawful and unsubstantiated on the ground that the investigator failed to interview the applicant and to conduct a forensic medical examination.

In the Mr Vasilyev ’ s case (application no. 42438/15), the applicant ’ s complaint about the ill-treatment in the course of the arrest and in police custody was first examined and rejected during his trial, after that the applicant initiated separate proceedings to open a criminal case against the police officers, but to no avail.

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,

- once the physical force used resulted in the damage to health, and once the special means or a weapon are used a police officer shall submit a report about 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 that the police officers used excessive force in the course of their arrest and under Article 13 of the Convention that they did not have an effective domestic remedy at their disposal.

Mr Latypov (application no. 48121/13) in addition complains under Article 5 § 4 of the Convention that it took the Supreme Court of the Republic of Bashkortostan one year, six months and six days to examine his appeal lodged against the detention order issued by the Sovetskiy District Court of Ufa (detention order issued on 29 October 2012 and appeal decision adopted on 6 May 2014).

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?

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, had this obligation been 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) h ad the recourse to physical force been 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 and in police custody 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, 24 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 QUESTION

Application no. 48121/13

Did the length of the proceedings in the present case, by which the applicant sought to challenge the lawfulness of his pre-trial detention, comply with the “speed” requirement of Article 5 § 4 of the Convention (see Mamedova v. Russia , no. 7064/05, § 96, 1 June 2006, Butusov v. Russia , no. 7923/04, §§ 32-35, 22 December 2009, and Pichugin v. Russia , no. 38623/03, §§ 148-56, 23 October 2012)?

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)

A pplicants ’ complaints about ill ‑ treatment to the domestic authorities

(reasons for refusals)

Applicants ’ trial and appeal courts ’ judgments

1.

42900/14

02/10/2014

Denis Nikolayevich DRUZHKOV

31/05/1980

Murmashi

Russian

14/01/2013

(at 11 p.m.)

Arrest at the applicant ’ s flat by the police officers of the special security unit ( ОМОН ) in masks after several test purchases

Police department, Kola, Murmansk Region ( ОМВД по Кольскому району )

No information about when the arrest record was drawn up

No information

15/01/2013

Medical certificate of the ambulance

31/01/2013

Medical examination act

28/02/2013

Forensic medical examination report

15/01/2013

First complaint to the prosecutor

20/10/2013

Latest refusal to open a criminal case

11/09/2014

Murmansk Regional Court

(it is not excluded that the applicant was injured during the arrest, but the police officers acted in accordance with the law without intention to injure the applicant)

24/01/2014

Kolskiy District Court

15/04/2014

Murmansk Regional Court

Convicted of attempted drug-dealing

2.

44541/08

12/08/2008

Aleksey Nikolayevich ALAYEV

04/04/1961

Nizhniy Novgorod

Russian

COMMITTEE AGAINST TORTURE

10/03/2006

(at around 4 p.m.)

Arrest by the 3 plainclothes police officers of the Nizhniy Novgorod Department of the Federal Drug Control Service ( УФСКН по Нижегородской области ) at his flat following a number of test purchases

Nizhniy Novgorod Department of the FSKN

( УФСКН по Нижегородской области )

10/03/2006

11/03/2006

SIZO medical certificate

11/04/2006

Forensic medical examination report no. 982

(26/04/2006 )

21/03/2006

First complaint to the prosecutor

14/05/2007

Latest refusal to open a criminal case

04/03/2008

Nizhniy Novgorod Regional Court

(the physical force was used during the arrest to overcome the applicant ’ s resistance, the police officers did not exceed their authority during the arrest)

The domestic courts that convicted the applicant examined his plea about ill-treatment

03/07/2006

Sormovskiy District Court

(the applicant was injured during the arrest to overcome his resistance, police officers ’ actions were provoked by the necessity, circumstances of the applicant ’ s arrest, no indication that the measures taken were excessive)

03/07/2006

Sormovskiy District Court

15/09/2006

Nizhniy Novgorod Regional Court

Convicted of attempted drug-dealing

3.

61817/11

14/09/2011

Konstantin Aleksandrovich TSYKALO

02/07/1972

Moscow

Russian

Sergey Ivanovich KIRYUKHIN

29/09/2009

(at around 4.30 p.m.)

Arrest outdoors by the special unit

Orenburg Regional Department of the Federal Security Service in Orsk ( УФСБ России по Оренбургской области в г. Орск )

29/09/2009

Arrest record drawn up

No information

29/09/2009

Medical examination act no. 3913

(30/09/2009)

12/03/2010

Medical examination act no. 935

(19/10/2010)

No information about first complaint

16/05/2011

Latest refusal to open a criminal case

15/07/2011

Military Court of the Privolzhsk Command

(the physical force was used during the arrest to overcome the applicant ’ s resistance, no grounds to consider the force used as excessive)

28/09/2009

Orenburg Regional Court

Convicted of bribe-taking

4.

11587/12

05/12/2011

Yevgeniy Yuryevich KULEMIN

24/10/1971

Sorda

Russian

20/04/2011

(at around 8 p.m.)

Arrest outdoors immediately after the “test purchase”

Police station of Novoulyanovsk

( ОМ при ОВД по МО «Город Новоульяновск » и «Ульяновский район» Ульяновской области )

20/04/2011

(at 11.58 p.m.)

Arrest registered

20/04/2011

(at 11.58. p.m.)

Arrest record drawn up

20/04/2011

21/04/2011

Report from IVS

(03/06/2011)

April 2011

First complaint to the investigative committee

09/01/2012

Latest refusal to open a criminal case

19/03/2012

Ulyanovsk District Court

(the physical force was used during the arrest to overcome the applicant ’ s resistance, no grounds to consider the force used as illegal)

16/08/2011

Ulyanovskiy District Court

10/04/2013

Ulyanovsk Regional Court

Convicted of attempted drug-dealing

5.

10031/13

16/01/2013

Aleksey Aleksandrovich PALATOV

03/12/1980

Pskov

Russian

18/10/2009

(at around 11.40 p.m.)

Arrest at his fiend ’ s flat

Police department no. 3, Pskov

( 3 ГОМ УВД по г . Псков )

No information

20/10/2009

SIZO medical examination act

26/11/2009

Medical examination act no. 2739

06/11/2009

First complaint to the investigative committee

05/10/2012

Latest refusal to open a criminal a case

05/09/2013

Pskov Regional Court

(the applicant could have been injured during his arrest to overcome his resistance, the use of special means (a rubber truncheon) corresponded to the applicant ’ s behaviour and was justified; the police officer violated the law as they did not draw up the record on the use of special means during the arrest)

28/01/2010

Pskovskiy Town Court

Convicted of robbery

6.

42417/13

27/05/2013

Aleksandr Viktorovich NAKAGUTOV

14/03/1968

Yekaterinburg

Russian

20/12/2012

Arrest at home

Police department no. 7, Yekaterinburg ( отделение полиции № 7, Екатеринбург )

21/12/2012

Arrest record drawn up

No information

21/12/2012

Forensic medical examination report no. 12435

(29/01/2013)

01/02/2013

First complaint to the investigative committee

19/05/2013

Latest refusal to open a criminal case

09/09/2013

S verdlovsk Regional Court

(the applicant could have been injured during his arrest to prevent his possible sexual assault of minor, no indication that the physical force used was excessive; at the same time the possibility that the applicant had been injured before the arrest is not excluded)

24/02/2014

Sverdlovsk Regional Court

04/06/2014

Supreme Court of the Russian Federation

Convicted of sexual assault of a minor

7.

48121/13

18/06/2013

Marat Rifovich LATYPOV

22/08/1976

Ufa

Russian

09/12/2011

Arrest outdoors in the evening during an undercover operation “surveillance”

Police department no. 7, Ufa ( отделение полиции № 7 по г . Уфа )

10/12/2011

(at 6.30 p.m.)

Arrest record drawn up

No information

10/12/2011

Certificate of the traumatology centre

12/12/2011

SIZO records

(14/06/2012)

No information about first complaint

20/11/2012

Latest refusal to open a criminal case

03/03/2014

Sovetskiy District Court of Ufa, Republic of Bashkortostan

quashed the refusal

(the applicant was not interviewed and a forensic medical examination was not conducted)

25/06/2014

Sovetskiy District Court of Ufa, Republic of Bashkortostan

Convicted of illegal storage of drugs

8.

31915/14

31/03/2014

Yaroslav Yuryevich VERBITSKIY

29/05/1987

St Petersburg

Russian

01/02/2011

(at around 10 p.m.)

Arrest outdoors by the police officers of the Saint-Petersburg department of the FSKN ( УФСКН России по Санкт - Петербургу и Ленинградской области ) in masks with guns and hammers

Before the applicant ’ s arrest an undercover operation “test purchase” was conducted in respect of his brother, the authorities mistook the applicant for his brother

Saint-Petersburg department of the FSKN

02/02/2011

(at around

6 a.m.)

Release

No information

02/02/2011

Certificate of the traumatology centre

(14/02/2011)

09/09/2011

Consulting report

no. 1761

04/02/2011

First complaint to the prosecutor

19/02/2014

Latest refusal to open a criminal case

04/03/2014

St Petersburg City Court

(the applicant could have been injured during his arrest to overcome his resistance)

Neither administrative nor criminal proceedings were instituted against the applicant

9.

42438/15

05/08/2015

Vladimir Igorevich VASILYEV

20/01/1988

Rybinsk

Russian

28/03/2014

(at around 2 p.m.)

Arrest during an undercover operation “surveillance” outdoors

Several days before the applicant ’ s arrest an undercover operation “test purchase” was conducted in respect of the applicant

Criminal investigations service of the Yaroslavl Region Department of Interior ( УУÐ УМВД по Ярославской области )

28/03/2014

(at 7 p.m.)

Arrest record drawn up

No information

29/03/2014

SIZO report

No information about first complaint

The domestic courts that convicted the applicant examined his plea about ill-treatment

12/10/2015

Latest refusal to open a criminal case

21/06/2016

Yaroslavl Regional Court

(the applicant ’ s injuries could be explained by the force used during his arrest and escort or by some other circumstances)

27/06/2014

Kirovskiy District Court of Yaroslavl

25/08/2014

Yaroslavl Regional Court

11/02/2015

Presidium of the Yaroslavl

Regional Court

Convicted of attempted drug-dealing

10.

45235/16

20/07/2016

Vitaliy Vitalyevich SOKOLOV

25/02/1972

Asino

Russian

11/02/2015

(at around 3 p.m.)

Arrest outdoors

Police department “ Asinovskiy ”, Asino , Tomsk Region ( МО МВД России « Асиновский » УМВД России по Томской области )

No information

13/02/2015

SIZO medical certificate

12/02/2015

Testimonies of the applicant ’ s SIZO cellmates

(01/05/2016)

Undated

extract from the applicant ’ s medical card

04/03/2015

First complaint to the prosecutor

28/03/2016

Latest refusal to open a criminal case

(the police officers had to use physical force during the applicant ’ s arrest as the applicant tried to run away, the police officers did not exceed their authority)

13/04/2015

Asinovskiy Town Court of the Tomsk Region

Convicted of illegal acquisition and storage of drugs

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DRUZHKOV v. RUSSIA and 9 other applications

DRUZHKOV v. RUSSIA and 9 other applications