Communicated on 16 March 2016

THIRD SECTION

Application no. 11739/10 Vladimir Igorevich KLIMANOV against Russia lodged on 8 February 2010

STATEMENT OF FACTS

1. The applicant, Mr Vladimir Igorevich Klimanov, is a Russian national who was born in 1990 and is serving a sentence in Yekaterinburg. He is represented before the Court by Ms A.A. Yuzhakova, a lawyer practising in Yekaterinburg.

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 14 March 2008 the applicant, who was 17 years old at the time, was arrested on suspicion of a crime. He was driven to the Kirovskoye district police department of Yekaterinburg.

4. At 1.30 p.m. on 14 March 2008 an arrest record was issued in relation to the applicant in respect of his suspected involvement in banditry. The record indicates that the applicant was arrested as a suspect at 1.15 p.m.

5. The applicant was then questioned and took part in an identity parade. According to him, his mother K.T. and lawyer Yu. were present. After his questioning, he was placed in a detention cell.

6. During the night of 14-15 March 2008 the applicant was taken to one of the police department offices by police officers who were inebriated. They put him on the floor face down, bound his hands and legs, placed a gas mask over his head and tortured him by stifling his breathing. The police officers were talking to him, but owing to the torture the applicant could not understand them. For two to three hours the police officers punched and kicked him, and forced him to swallow copious amounts of cognac. After the alleged ill-treatment they made him write “statements of surrender and confession”, which were used in his conviction, and sign the record of his questioning as a witness, which had been prepared by the investigator and contained self-incriminating statements by him about the crimes.

7. At around 4 a.m. on 15 March 2008 the police officers drove the applicant to Yekaterinburg town hospital no. 7, where a doctor Ch. issued a document attesting that he did not have any injuries on his body. This document indicates that the applicant was examined by doctor Ch. at 4 a.m. on 14 March 2008. According to Ch., the document was dated 14 March 2008 by mistake. He stated that he had examined the applicant at around 4 or 5 a.m. on 15 March 2008. Ch. had not noted down a scratch on the applicant ’ s forehead because it had been insignificant (see paragraph 18).

8. According to the applicant, after the alleged ill-treatment at the police station on the night of 14-15 March 2008 he had haematomas and abrasions on his face, haematomas on his hip and an injury to the first finger on his left hand.

9. On the morning of 15 March 2008 the applicant was taken to the Kirovskiy District Court of Yekaterinburg. The court extended his arrest for 72 hours, having found no grounds for his detention. According to the applicant, his lawyer made an application for a forensic medical examination. The court dismissed that application.

10. After the court hearing, on the evening of 15 March 2008 the applicant was placed in a temporary detention facility. At 6.30 p.m. on the same day an on-duty officer at the temporary detention facility made a note of the abrasions on the applicant ’ s forehead and the haematomas on his face.

11. On 18 March 2008 the court refused to issue a detention order in respect of the applicant. On the same day the investigator issued a new arrest record in relation to the applicant in connection with another crime.

12. On 23 March 2008 the court ordered the applicant ’ s detention. It did not address his allegations of ill-treatment in police custody. No forensic medical examination was ordered.

13. On 21 May 2008 the Sverdlovskiy Regional Court quashed the decision of the Kirovskiy District Court of Yekaterinburg of 15 March 2008 extending the applicant ’ s arrest for 72 hours as unlawful.

B. Refusals to open a criminal case against the police officers

14. According to the applicant, on 15 March 2008 his mother K.T. lodged a complaint with the prosecutor ’ s office of Yekaterinburg concerning his injuries, and requested that a criminal case be opened against the police officers who had allegedly unlawfully arrested the applicant and physically assaulted him.

15. On 19 March 2008 the investigation unit of the Kirovskiy district of Yekaterinburg received K.T. ’ s complaint concerning the applicant ’ s alleged ill-treatment.

16. On the dates specified below, pursuant to Article 24 § 1 (1) of the Code of Criminal Procedure (“the CCrP”), an investigator issued six refusals to open criminal proceedings against the police officers, due to the absence of a crime under Articles 285 and 286 (abuse of powers) and Article 302 (forced extraction of confession) of the Criminal Code. Those refusals were systematically overruled by the higher authority within the Investigation Committee, and the investigating authorities were ordered to carry out additional enquiries:

Refusal no.

issued on:

overruled on:

(i)

29 March 2008

9 April 2008

(ii)

12 April 2008

19 April 2008

(iii)

21 April 2008

1 July 2008

(iv)

11 July 2008

[ unspecified date ]

(v)

31 July 2008

29 August 2008

(vi)

3 September 2008

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17. The police officers denied subjecting the applicant to any ill ‑ treatment. According to police officer Sh., he arrested the applicant on the street at around 9.30 a.m., handcuffed him and drove him to the police station. According to Sh., the applicant had a scratch on his forehead.

18. The other policemen and Ch., who examined the applicant on 15 March 2008, also stated that the applicant had had a scratch on his forehead. According to their version of events, the applicant sustained this injury on 14 March 2008 near his school, and it was caused by unidentified individuals before his arrest. Ch. further stated that he had examined the applicant at around 4 or 5 a.m. on 15 March 2008. He had not made a note of the scratch on the applicant ’ s forehead, because it had been insignificant.

19. The applicant stated that after his arrest on 14 March 2008 he had been driven to the Kirovskiy district police department of Yekaterinburg. At around midnight he had been taken to one of the police station ’ s offices on the third or fourth floor, where police officer Sh. and several other police officers had physically assaulted and tortured him for several hours over the course of the night and had forced him to confess to crimes. The applicant provided similar statements during his questioning on 18 March 2008. After the alleged ill-treatment he had had an injury to the first finger on his left hand, haematomas on his back, hip and cheeks, and an abrasion on his forehead.

20. The applicant ’ s mother K.T. stated that from 14 to 15 March 2008 the applicant had been detained at the Kirovskiy district police department of Yekaterinburg. On 15 March 2008, when the applicant had been taken to the Kirovskiy District Court of Yekaterinburg, he had had bruises on his face and abrasions on his forehead. K.T. further stated that on 14 March 2008 the applicant had not had any injuries.

21. The applicant ’ s father K.I. also stated that on 14 March 2008 he had seen his son in the morning and he had not had any injuries. On 15 March 2008 he had seen his son in court. The applicant had had injuries and had been depressed. He had told his father that police officers (including police officer Sh.) had physically assaulted him, forced him to swallow copious amounts of cognac and questioned him during the night. An investigator M. had printed out a record of his questioning, which the applicant had signed without reading.

22. The applicant ’ s lawyer Yu. explained that in February 2008 K.T. had asked her to represent her son while he was questioned as part of an investigation. On 14 March 2008 K.T. had informed her that he had been arrested and that she had been asked by police officer Sh. to go to the Kirovskiy district police department of Yekaterinburg. Yu. had arrived at the police department to participate in the applicant ’ s questioning, which had continued until around 6 p.m., Yu. had not seen any injuries on the applicant on 14 March 2008. The next day she had seen him in court. He had had scratches on his forehead, haematomas on his cheek, and had been depressed. He had told Yu. that police officers (including police officer Sh.) had physically assaulted him during the night in one of the offices of the police department, placed a gas mask over his head and stifled his breathing. M., the investigator, had printed out a record of his questioning, which the applicant had signed without reading. At 4 a.m. on 15 March 2008 he had been driven to the hospital for his medical examination.

23. In the most recent refusal to open a criminal case against the police officers of 3 September 2008, the investigator found that the applicant ’ s complaint of ill-treatment by the police on the night of 14-15 March 2008 as a means of forcing him to confess to crimes had not been confirmed, and should be regarded as an attempt by the applicant to avoid criminal liability for the crimes which had been committed. In particular, the investigator considered that the applicant had already had an abrasion on his forehead before his arrest on 14 March 2008. Moreover, the applicant had given his “statements of surrender and confession” after he had provided self ‑ incriminating statements during his questioning on 14 March 2008.

C. Article 125 review of the most recent refusal

24. In accordance with Article 125 of CCrP, the applicant ’ s lawyer Yu. challenged the most recent refusal to open a criminal case against the police officers of 3 September 2008 in court.

25. On 9 June 2009 the Kirovskiy District Court of Yekaterinburg dismissed that appeal. The court considered that the arguments concerning the applicant ’ s alleged ill-treatment had been confirmed only by the statements of the applicant, his parents and his lawyer. The court did not find any other evidence to contest the investigator ’ s conclusion on the absence of unlawful conduct in relation to the applicant ’ s case. It also found no reason to consider the investigator ’ s refusal to open criminal proceedings against the policemen unlawful or unsubstantiated.

26. On 9 September 2009 the Sverdlovskiy Regional Court upheld that decision on appeal.

D. Criminal proceedings against the applicant

27. On 28 June 2011 the Sverdlovskiy Regional Court convicted the applicant of several crimes and sentenced him to eight years ’ imprisonment.

28. On 28 June 2011 the trial court also issued two special rulings ( частное постановление ) addressed to the head of the investigation department for the Sverdlovsk Region, indicating facts relating to incomplete inquiries carried out in respect of the applicant ’ s complaint of police ill-treatment and other infringements of criminal procedural law during the preliminary investigation of his criminal case. In particular, the court noted the following issues:

(a) The applicant was de facto arrested at 9.30 a.m. on 14 March 2008, whereas his formal arrest record indicated that he had been arrested at 1.15 p.m. on 14 March 2008.

(b) On 14 March 2008, after being questioned, the applicant was placed in a detention cell for administrative offenders at the police station, whereas his formal arrest record indicated that he had been placed in a temporary detention facility in Yekaterinburg. His parents and lawyer were not informed about his being placed in the police station ’ s detention cell.

(c) From 7.50 to 9.30 p.m. on 14 March 2008 the applicant, who was under age at the time, was questioned as a witness by M. During his questioning he provided self-incriminating statements. Neither his lawyer nor his parents were notified about the questioning.

(d) At 4 a.m. on 15 March 2008 the applicant was driven to a traumatology unit of Yekaterinburg town hospital no. 7 for his medical examination, during which no note was made of any injuries on his body.

(e) At 6.35 p.m. on 15 March 2008 the applicant was placed in a temporary detention facility, where the on-duty officer recorded scratches on his forehead and haematomas on his face.

(f) The applicant said that his injuries had been caused by ill-treatment by police officers (including police officer Sh.) with the purpose of extracting self-incriminating statements.

(g) The fact that the applicant did not have any injuries at the time of his medical examination in the early hours of 15 March 2008, injuries which were recorded only in the temporary detention facility on the evening of 15 March 2008, excluded the possibility of their being caused on the morning of 14 March 2008 before the applicant ’ s arrest near his school, as the investigator had concluded during the pre-investigation inquiry into the applicant ’ s complaint of ill-treatment.

29. The court considered that the applicant ’ s right to a defence had been violated and found that the record of his questioning as a witness of 14 March 2008, which contained his self-incriminating statements, had been inadmissible evidence.

30. On appeal, on 10 October 2011 the Supreme Court of Russia upheld the judgment of 28 June 2011 concerning the applicant ’ s conviction.

COMPLAINTS

31. The applicant complains under Article 3 of the Convention that he was subjected to ill-treatment by police officers.

32. He further complains under Article 13 of the Convention, in conjunction with Article 3 of the Convention , that the State failed to conduct an effective investigation into this incident, and that he had no effective domestic remedy.

QUESTIONS TO THE PARTIES

1. Having regard to:

(a) the applicant ’ s questioning at the police station about his alleged involvement in crimes; and

(b) the injuries found on the applicant ’ s body thereafter;

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 many other authorities, Polonskiy v. Russia , no. 30033/05, § § 122-23, 19 March 2009; Gladyshev v. Russia , no. 2807/04, § 57, 30 July 2009; Alchagin v. Russia , no. 20212/05, §§ 53 ‑ 54, 56, 17 January 2012; A.A. v. Russia , no. 49097/08, § § 75, 77 and 80-81, 17 January 2012; Yudina v. Russia , no. 52327/08, § § 67-68, 10 July 2012; Ablyazov v. Russia , no. 22867/05, §§ 49-50, 30 October 2012; Tangiyev v. Russia , no. 27610/05, § § 53-55, 11 December 2012; Markaryan v. Russia , no. 12102/05, § § 60-61, 4 April 2013; Nasakin v. Russia , no. 22735/05, § § 52-53, 18 July 2013; Aleksandr Novoselov v. Russia , no. 33954/05, §§ 61-62, 28 November 2013; Velikanov v. Russia , no. 4124/08, § 51, 30 January 2014) ?

2. Have the authorities discharged their burden of proof by providing a plausible or satisfactory and convincing explanation as to how the applicant ’ s injuries were caused (see Selmouni , cited above, § 87, and Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000 ‑ VII)?

3. Having regard to:

(a) the Investigation Committee ’ s refusals to open a criminal case and carry out an investigation into the applicant ’ s alleged ill-treatment by the police;

(b) the overruling by the Investigation Committee ’ s superiors of those refusals;

(c) the Investigation Committee ’ s inability to carry out investigative procedures such as formal confrontations, identity parades and searches within the framework of the pre-investigation inquiries;

was the investigation by the domestic authorities in the present case in breach of Article 3 of the Convention (see Lyapin v. Russia , no. 46956/09, §§ 125-40, 24 July 2014)?

4. 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?

5. As regards the inquiry into the applicant ’ s alleged ill ‑ treatment, the Government are invited to submit copies of all decisions which overruled the refusals to open a criminal case against police officers.

6. Having regard to: the applicant ’ s complaint about his alleged ill ‑ treatment in police custody, raised during the court proceedings concerning his detention (on 15, 18 and 23 March 2008); the presence of visible signs of injuries on his face and body; and his request for a forensic medical expert examination, did the judge undertake actions provided by the law? In particular, did he signal about the applicant ’ s alleged ill-treatment to the competent authorities (see Zayev v. Russia , no. 36552/05 , § § 60-63, 72, 112-14, 1 6 April 2015)?

7. The Government are invited to submit transcripts of the hearings concerning the applicant ’ s detention, dated 15, 18 and 23 March 2008.