Communicated on 29 September 2016

THIRD SECTION

Application no. 9519/10 Maksim Dmitriyevich BATRAKOV against Russia lodged on 1 February 2010

STATEMENT OF FACTS

1. The applicant, Mr Maksim Dmitriyevich Batrakov, is a Russian national who was born on 12 March 1990 and lives in Ulyanovsk. He is represented before the Court by Mrs Ye.V. Gorash, a lawyer practising in Ulyanovsk.

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

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

3. On 28 August 2008 a criminal case was opened concerning the physical assault of a man on 25 August 2008, which caused serious damage to his health. At around 2.30 p.m. on 28 August 2008 the applicant (who was eighteen years old at the time) and K. were arrested in a car near the applicant ’ s home by two police officers on suspicion of the crime. They took the applicant out of the car, pushed him to the ground and handcuffed him. They then started asking him what had happened on 25 to 27 August 2008. The applicant told them that he did not understand what they were talking about. Police officer Ya. then punched him in the head. The applicant and K. were driven to the Zheleznodorozhniy police station in Ulyanovsk ( Железнодорожный РОВД г. Ульяновска ).

4. The applicant was held at the police station from 3 p.m. to 11 p.m. He and K. were taken to a room on the fourth floor, where police officers covered their heads with sweatshirts and pushed them to the floor. K. was then taken to a different room. According to the applicant, police officers L. and K. locked the room from the inside and started threatening him and physically assaulted him by whipping him mainly in the legs, supposedly with a cord. The police officers forced the applicant to give a “statement of surrender and confession” concerning the physical assault, which he allegedly had not committed. Under duress the applicant signed the statement, which was dictated to him by police officer L. No lawyer was present.

5. At around 9 p.m. the applicant was taken to see investigator Ye., who questioned him as a witness in the presence of a lawyer, Ya. The applicant provided similar statements to the investigator as in his “statement of surrender and confession”, as one of the police officers had been in the room. No physical force was used on the applicant at that time. According to the applicant, the police officer warned him that if he told the investigator about any pressure having been exerted on him, he would continue to be physically assaulted.

6. At around 10.30 p.m. the applicant ’ s mother – who had found out about her son ’ s arrest from a neighbour – arrived at the police station and waited for her son in the corridor. She was then led to the room where he was being held. She asked him whether he had been beaten up. According to the applicant, he denied that he had been ill-treated to his mother, because the investigator and police officers were in the room. At around 11 p.m. he and his mother left the police station. They saw K., who had been released an hour earlier. He told them that he had been beaten up by police officers.

7. At home the applicant told his mother about his ill-treatment at the police station in detail. According to the applicant ’ s mother ’ s statements to the investigator from the Zheleznodorozhniy inter ‑ district investigation unit dated 12 September 2008, at home she saw numerous bruises on the applicant ’ s legs and handcuff marks on his wrists. The applicant told her about his arrest, being forced to the ground and handcuffed, having a sweatshirt placed over his head and being driven to the police station. According to her statements, two police officers physically assaulted the applicant during his interview at the police station by whipping his legs and back. Under threat and duress the applicant confessed to the crime which he allegedly had not committed.

B. The applicant ’ s injuries

8. At 10.45 a.m. on 29 August 2008 the applicant went to a traumatology unit for medical help. He was diagnosed with contusions of both hips, the lower left leg and the lower spine. He complained of pain in those parts of his body and explained that on 28 August 2008 he had been physically assaulted by police officers at a police station.

9. According to report no. 5327/432 of a forensic medical examination carried out at 1.50 p.m. on 29 August 2008 at his request, the applicant complained of pain in his legs. He also explained to the expert that at around 2 p.m. on 28 August 2008 he had been arrested by police officers near his home and driven to a police station. At around 10 p.m. he was released. During his arrest one of the police officers punched him in the top of the head. At the police station he was handcuffed with his hands behind his back and pushed to the floor face down. The police officers physically assaulted him by striking his legs and lower back with an object, which he could not see. The applicant had (i) two bruises on the back of his lower right hip; (ii) a bruise on the back of the middle of his left hip; (iii) two abrasions on the front of the upper part of his lower left leg; and (iv) a contusion and a bruise on the front and inside of the middle of his left hip. According to the expert, the applicant ’ s injuries had been caused by a hard, blunt object, possibly on 28 August 2008, in the circumstances described by the applicant. The injuries had not caused him any “health damage”.

10. On 23 April 2009 the same expert carried out another forensic medical examination in respect of the applicant ’ s injuries (report no. 1864) on the basis of the order of an investigator dated 5 February 2009 and the applicant ’ s medical records of 29 August 2008. The expert came to similar conclusions as in his initial report no. 5327/432. He also specified that the applicant ’ s injuries had been caused by no less than six blows with a hard, blunt object.

C. Operational-search activity of the Federal Security Service

11. On 2 September 2008 police officers K. and Ya. carried out a search at the applicant ’ s flat within the framework of criminal proceedings brought against him in respect of the assault. Police officer Ya. offered his “help” to have the applicant ’ s prosecution discontinued in exchange for money. The applicant ’ s mother reported the incident to the Ulyanovsk regional department of the Federal Security Service (FSB). As a result of the operative measures that followed Ya. ’ s conversations were recorded and on 12 September 2008 he was arrested while receiving money from the applicant ’ s mother. On 26 January 2009 he was convicted of attempted fraud and sentenced to two years ’ imprisonment.

12. Following the applicant ’ s mother ’ s complaint the FSB carried out an operational-search activity aimed at establishing which police officers had undertaken unlawful actions in respect of the applicant. On 29 September 2008 the head of the regional department of the FSB found that, according to data received as a result of the operative measure, on 28 August 2008 at the Zheleznodorozhniy police station in Ulyanovsk police officers L. and K. had beaten up the applicant in order to force him to confess to the crime.

13. On 29 September 2008 the results of the operative measure were communicated to the head of the Ulyanovsk regional investigative committee. These indicated that the elements of a crime under Article 286 of the Criminal Code (abuse of powers) had been present in respect of the actions of police officers L. and K.

D. Ulyanovsk investigative committee ’ s refusals to open a criminal case against police officers

14. On 30 August 2008 the applicant lodged a complaint against the police officers with the Zheleznodorozhniy district prosecutor ’ s office of Ulyanovsk, alleging unlawful deprivation of liberty and ill-treatment. His mother lodged a similar complaint.

15. On the dates specified below, and in accordance with Article 24 § 1 (2) of the Code of Criminal Procedure, investigators at the Zheleznodorozhniy investigation unit issued nine refusals to initiate criminal proceedings against the police officers, because none of the elements of a crime under Article 286 of the Criminal Code (abuse of powers) were present in respect of their actions. The refusals were systematically overruled by the higher authority within the investigative committee as unsubstantiated and/or unlawful, and the investigation authorities were ordered to carry out additional inquiries:

Refusal no.

issued on:

overruled on:

(i)

22 September 2008

27 October 2008

(ii)

7 November 2008

30 November 2008

(iii)

10 December 2008

[ unspecified date ]

(iv)

3 January 2009

30 January 2009

(v)

9 February 2009

13 March 2009

(vi)

23 March 2009

1 April 2009

(vii)

11 April 2009

20 April 2009

(viii)

24 April 2009

5 May 2009

(ix)

15 May 2009

[ no information ]

16. On 29 April 2009 the deputy head of the Ulyanovsk regional prosecutor ’ s office found that the pre-investigation inquiry had been stalled and incomplete and had failed to establish the important circumstances of the alleged ill ‑ treatment, and that there had been no follow-up to the operative activity carried out by the FSB (see paragraph 13 above). The prosecutor ’ s office had previously asked that the investigative committee correct the deficiencies in the pre-investigation inquiry, but the requests were not followed up. The prosecutor ’ s office again sent an official request to the head of the Ulyanovsk regional investigative committee, asking that the violations be eliminated without delay and those responsible be subjected to disciplinary proceedings.

17. The police officers denied subjecting the applicant to any ill ‑ treatment. In the most recent refusal to open a criminal case against the police officers dated 15 May 2009, the investigator found that the applicant ’ s allegations of ill-treatment had not been confirmed. The quantity, mechanism and location of the applicant ’ s injuries, as alleged by him, were not consistent with the results of his forensic medical examination. After examining the applicant ’ s medical records, explanations by the police officers and his lawyer Ya. – who had not seen any injuries on his client during his questioning as a witness on the evening of 28 August 2008 shortly after the alleged ill ‑ treatment – the investigator concluded that the applicant ’ s injuries (as recorded on 29 August 2008) were unrelated to the investigative measures carried out in relation to the applicant on the earlier date. The investigator also considered that the applicant ’ s allegations of ill-treatment had been made to avoid criminal liability for the crime which had been committed, and noted that his mother had found out about the alleged ill-treatment from him. The investigator therefore concluded that none of the elements of the alleged crime had been present in respect of the police officers ’ actions.

E. Criminal proceedings against the applicant

18. On 25 March 2009 the Zheleznodorozhniy District Court of Ulyanovsk convicted the applicant and sentenced him to five and a half years ’ imprisonment.

19. On 6 May 2009 the Ulyanovsk Regional Court quashed that judgment on appeal and remitted the case to the first-instance court for fresh examination.

20. On 9 July 2009 the first-instance court re-examined the applicant ’ s criminal case and convicted and sentenced him to five and a half years ’ imprisonment.

21. On 19 August 2009 the Ulyanovsk Regional Court partly changed that judgment on appeal in the part concerning the civil claim against the applicant.

22. At trial the applicant denied his guilt. He alleged that he had given his “statement of surrender and confession” of 28 August 2008 as a result of being physically assaulted by the police officers and requested that the statement be excluded from evidence. The courts nevertheless used it as evidence in the criminal case against him. The courts concluded that his allegations of police ill-treatment had not been confirmed, briefly noting that he had not complained of any ill-treatment shortly after he had given his “statement of surrender and confession” at the police station, and that the police officers had denied using any violence against him.

23. The applicant also complained that incriminating statements against him given by witnesses K. (on 11 December 2008) and V. (on 23 December 2008) had been used as evidence, even though they had been extracted under duress. The police officers allegedly demanded that they incriminate the applicant, gave electric shocks to K. through wires applied to his fingers, and gave electric shocks to V. in the area of the genitals while he was handcuffed. V. ’ s ill-treatment was confirmed by a medical record, issued by the traumatology unit of Ulyanovsk Town Hospital on 23 December 2008, according to which V. was diagnosed with a burn on his genitals shortly after being questioned by police.

24. The applicant requested that those statements be excluded from evidence. At trial witnesses K. and V. changed their statements, explaining that they had given the statements incriminating the applicant as a result of the ill-treatment by police officers. The trial court found that the use of violence against those witnesses had not been confirmed. In arriving at that conclusion, it relied on the statements provided by the police officers, who denied any ill ‑ treatment of K. and V. They also found that K. and V. had been the applicant ’ s long-term friends, and had subsequently changed their statements to help him avoid criminal liability for the crime committed.

25. The applicant provided the Court with detailed statements from K. and V. to the domestic investigation authorities concerning their ill ‑ treatment by the police officers with the purpose of extracting their incriminating statements of 11 and 23 December 2008 against the applicant, as well as V. ’ s medical record.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was subjected to ill-treatment by police officers and that the State failed to conduct an effective investigation into the incident. He also complains under Article 13 of the Convention, in conjunction with Article 3, that he had no effective domestic remedy.

The applicant also complains under Article 6 of the Convention that the criminal proceedings against him were unfair on account of the use of evidence obtained as a result of his ill-treatment and the duress applied to witnesses K. and V.

QUESTIONS TO THE PARTIES

1. Having regard to the injuries found on the applicant after the time spent by him in police custody on suspicion of having committed a criminal offence, has the applicant been subjected to torture or inhuman or degrading treatment, in breach of Article 3 of the Convention (see Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999 ‑ V; and, among recent authorities, Razzakov v. Russia , no. 57519/09, 5 February 2015, and Gorshchuk v. Russia , no. 31316/09, 6 October 2015)?

If the response is negative, the Government are invited to discharge their burden of proof to provide a satisfactory and convincing explanation by producing evidence establishing facts which cast doubt on the account of events given by the applicant (see Bouyid v. Belgium [GC], no. 23380/09, § 83 and further, ECHR 2015).

2. Having regard to:

(a) the investigation authorities ’ refusals to open a criminal case and investigate the applicant ’ s allegations of ill-treatment by the police, and the overruling of those refusals as unlawful and unsubstantiated by higher investigative authorities or courts, and;

(b) the investigation authorities ’ inability to implement full investigative measures within the framework of the pre-investigation inquiries, for example, confrontations, identification parades, searches, and so forth;

did the authorities carry out an effective investigation, in compliance with the procedural obligation under Article 3 of the Convention (see Lyapin v. Russia , no. 46956/09, §§ 125-40, 24 July 2014)?

3. Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 3, as required by Article 13 of the Convention?

4. Having regard to the use of the applicant ’ s self-incriminating statements (his “statement of surrender and confession” of 28 August 2008), which were allegedly obtained as a result of his ill ‑ treatment by the police and in the absence of a lawyer, and the use of statements incriminating the applicant which were allegedly obtained as a result of duress applied to witnesses K. and V. (statements by them of 11 December 2008 and 23 December 2008 respectively), did the applicant have a fair hearing, in accordance with Article 6 §§ 1 and 3 (c) of the Convention (see Turbylev v. Russia , no. 4722/09, 6 October 2015) ?

At trial, did he apply for that evidence to be declared inadmissible? If so, what were the grounds for those applications and how were they decided by the domestic courts?

In particular, the Government are invited to submit:

(a) the applicant ’ s “statement of surrender and confession” of 28 August 2008;

(b) records of the applicant ’ s questi oning as a witness on 28 August 2008;

(c) records of questioning of witnesses K. and V. on 1 1 December 2008 and 23 December 2008 respectively;

(d) the applicant ’ s requests to have the above statements and records excluded as inadmissible evidence; and

(e) relevant extracts of records of the court hearings and/or any other relevant documents concerning the courts ’ decisions on the applicant ’ s above requests.

5. The Government are invited to submit a detailed hour-by-hour report on what happened to the applicant during the time spent by him in police custody, from the moment of his actual arrest ( фактическое задержание ) until the moment of his placement in a detention facility based on a court order for his remand in custody ( содержание под стражей ), or – if no such measure was ordered by a court – until the moment of his release, including information on the reasons and legal grounds for the applicant ’ s detention, all operative, administrative and investigative measures carried out during that period of time, as supported by relevant documents to be enclosed with the report. In particular, documents containing the following information are to be submitted:

(a) where applicable, the time of the applicant ’ s arrival and the length of time he spent in police stations (police station records concerning persons brought to and leaving police stations, and so forth), cells for administrative offenders at police stations, temporary detention facilities (IVS), pre ‑ trial detention (SIZO-type) facilities, medical facilities (ambulances, accident and emergency departments, hospitals and forensic medical examination clinics);

(b) the applicant ’ s injuries and/or state of health, as recorded in the places listed in sub-paragraph (a) above (certificates of medical examinations on his arrival at the IVS and SIZO, records of medical facilities, and so forth);

(c) the forensic medical experts ’ conclusions about the applicant ’ s injuries, the investigators ’ decisions to order a forensic medical examinations of the applicant and explanations by him and the police officers in question as to the cause of the injuries which formed the basis of the experts ’ assessments;

(d) records of the operative, administrative and investigative measures carried out with the applicant ’ s participation during the above periods of time (records of arrest, questioning, searches, and so forth);

(e) where applicable, a court order remanding the applicant in custody, records of the relevant court hearing, a court ruling on the applicant ’ s complaint of ill-treatment in police custody, and any relevant higher court decisions.

6. As regards the pre-investigation inquiry into the applicant ’ s alleged ill ‑ treatment, the Government are invited to submit:

(a) a numbered list (in chronological order) of all decisions by the investigating authorities, including the name of the relevant authority, the date of the decision, the grounds for the refusal to open a criminal case under the Code of Criminal Procedure and, in relation to each decision, the corresponding decision which overruled it or set it aside (with the name of the authority, date and reason for overruling or setting aside the initial decision);

(b) a numbered list (in chronological order) of all court decisions at both levels of jurisdiction on the applicant ’ s challenges of the investigators ’ decisions, to include the name of the court which made the decision and the date and outcome;

(c) copies of the above-mentioned decisions by the investigating authorities and the courts, in chronological order.