Communicated on 1 February 2016

THIRD SECTION

Application no. 5270/06 Igor Stanislavovich SHULUNOV against Russia lodged on 19 January 2006

STATEMENT OF FACTS

1. The applicant, Mr Igor Stanislavovich Shulunov, is a Russian national, who was born in 1969 and lives in the Tambov Region.

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 17 July 2004 the applicant was celebrating his birthday in a café in Rasskazovo, in the Tambov Region, in the company of his family and friends. At around 11 p.m. he left the party to return home by car with his ex-wife, D., and another guest, Mr P.V. According to the applicant, D. was driving the car. Not far from the applicant ’ s home, they saw some of the applicant ’ s guests (Ms G., Mr R.A. and Ms R.N.) and stopped the car at the side of the road. While they were talking on the street, police officers A. and P. of the State Road Traffic Safety Inspectorate of the Ministry of the Interior of the Tambov Region ( ГИБДД МВД по Тамбовской области ) stopped close by. They asked the applicant to produce his car registration documents and his driving licence. D. told the officers that the car was hers and asked them to show their identification documents. In reply, traffic police officer A. twisted D. ’ s arm in an attempt to snatch the car keys from her hand. The applicant intervened by standing between D. and A. and asked A. not to treat D. in such a manner. At that moment, traffic police officer P. approached the applicant from behind, hit him on the back with a rubber truncheon and kicked him in the buttocks. The applicant attempted to walk away from the conflict with one of his guests, R.N., to make a telephone call, but received a blow on the head and lost consciousness.

4. The applicant submitted that D., R.N. and the applicant ’ s mother Sh. (who had joined the applicant and his friends later), had witnessed traffic police officers A. and P. continuing to physically assault him after he had lost consciousness. Two more police squads arrived and joined A. and P. in beating the applicant (there were approximately ten police officers altogether). Sh., D. and R.N. tried to drag the police officers away from the applicant while he was unconscious. In response, the police officers applied “special measures” to restrain them. Sh. then shouted out that the applicant was dead and the police officers stopped beating him. It appears that P.V. was also involved in the fight with the police officers. All three of the women (Sh., D. and R.N.) and P.V. sustained multiple bruises as a result of the police officers ’ actions, which were recorded by a forensic medical expert, P.M, on 20 July 2004.

5. According to the police officers, the applicant was driving the car with P.V., R.A., R.N. and G. He had his distance headlamps on and was in a state of alcoholic inebriation . According to the police ’ s version of events, Sh. and D. had joined the applicant and his friends later, during the apprehension of the applicant, after he had been stopped by the traffic police .

6. The police officers handcuffed the applicant, who was unconscious, put him in their car, took him to the police station and placed him in a temporary detention facility (IVS). As the applicant did not regain consciousness, at around 10.30 a.m. on 18 July 2004, officers of the temporary detention facility called an ambulance, which provided medical assistance to the applicant and recorded his injuries (see paragraph 11 below).

B. Administrative proceedings against the applicant

7. On 19 July 2004 the applicant was taken to the Justice of the Peace of the Third Circuit of the Tambov Region in connection with an administrative case against him for using obscene language and disobeying the lawful orders of a police officer while being in a state of alcoholic inebriation.

8. On 19 July 2004 the Justice of the Peace found that there was insufficient evidence of the applicant using obscene language and terminated the proceedings on that charge. The Justice of the Peace adjourned the proceedings regarding the charge of disobeying the lawful orders of a police officer until 21 July 2004.

9. At 5 p.m. on 19 July 2004 the applicant was released.

10. On 21 July 2004 the Justice of the Peace found that the applicant ’ s administrative case file was incomplete in respect of both charges and ordered that the records of the administrative offences be returned to the Rasskazovo police.

C. The applicant ’ s injuries

11. On 18 July 2004 the ambulance doctor stated that the applicant had high blood pressure, a contusion on his head and an abrasion on his elbow.

12. On 20 July 2004 the applicant asked the Rasskazovo forensic medical office to carry out a forensic medical examination and record his injuries. According to medical examination report no. 124 of 20 July 2004, the expert, P.M., recorded that the applicant had: (i) three abrasions around his left eye; (ii) an abrasion and a bruise on his right temple; (iii) an abrasion and a bruise on the left shoulder; (iv) an abrasion with swelling on the right occipital region of the head; (v) abrasions on the elbows; (vi) a contusion on the left wrist; (vii) a bruise on the right shoulder; and (viii) abrasions and bruises on the knees. The applicant told P.M. that at around midnight on 17 July 2004 he had been physically assaulted by the traffic police officers, who had used “special devices” on him, and had punched and kicked him. The applicant complained of headache, nausea, vomiting, dizziness and pain in various parts of his body. The forensic medical expert concluded that the applicant ’ s injuries had been caused by the impact of hard, blunt objects, possibly on 17 July 2004, and should be classified as “minor damage” to the applicant ’ s health.

13. On 20 July 2004 the applicant was admitted to the neurology unit of Tambov town hospital no. 3. He was diagnosed with a closed head injury; a first-degree cerebral contusion; a subarachnoid haemorrhage; contusions on the chest, head, face and left elbow; and post-traumatic hybrid sensorineural hearing loss. The applicant received treatment in the hospital until 10 August 2004. Upon discharge from the hospital, his doctors recommended that he continue outpatient treatment.

14. On 27 July 2004, at the request of the applicant ’ s lawyer, the forensic medical expert, P.M., having re-examined the applicant and his medical records from the hospital, added to report no. 124 of 20 July 2004 that the applicant had a closed head injury with a cerebral contusion and a subarachnoid haemorrhage. The forensic medical expert concluded that the injury had been caused by the impact of a hard, blunt object, possibly at the time and in the circumstances described by the applicant, and was to be classified as “moderate damage” to the health of the applicant.

15. On 14 August 2004 a new forensic medical examination report on the applicant ’ s injuries was drawn up, on the basis of an order of 11 August 2004 by an investigator and the expert ’ s findings in report no. 124, as amended on 27 July 2004. The applicant ’ s new forensic medical report was also issued by P.M., who had examined the applicant on 20 and 27 July 2004. The expert came to similar conclusions as to when and how the applicant had sustained his injuries.

16. On 20 August, on 4 September and between 7 and 9 September 2004 an ambulance was called to the temporary detention facility (IVS) for the applicant in connection with incidents of post-traumatic encephalopathy and high blood pressure. On 9 September 2004 he was taken to hospital.

17. From 30 September to 28 October 2004 the applicant was treated in Hospital IK-1 for the after-effects of his closed head injury.

18. According to the applicant, from 3 to 17 February 2005 he received treatment for post-traumatic partial sensorineural hearing loss in both ears. From 11 to 23 March 2005 he also received outpatient medical care for his injuries.

19. According to the applicant ’ s medical records, on 8, 11, 19 and 22 March 2005 an ambulance was called for him in connection with post ‑ traumatic encephalopathy and high blood pressure. From 14 to 18 March 2005 he was examined at the neurosensory unit of the Tambov regional hospital and treated for the after-effects of his head injuries.

D. Criminal proceedings against the police officers

1. Refusals to open criminal cases

20. On 21 July 2004 the applicant ’ s lawyer lodged a complaint with the Rasskazovo inter-district prosecutor, alleging ill-treatment by the police officers.

21. On 23 July 2004 Sh. and D. also lodged complaints with the Rasskazovo inter-district prosecutor ’ s office, alleging physical assault by the police officers.

22. For more than a month the prosecutor failed to take any action in respect of the complaints by the applicant, Sh. and D, all of whom then appealed against this inaction in court. On 1 September 2004 the failure to act by the prosecution authorities was held by the Rasskazovo District Court of Tambov to have been unlawful.

23. On 26 October 2004 R.N. lodged her own complaint of physical assault against the policemen.

24. The prosecutor ’ s office carried out pre-investigation enquiries into the complaints by the applicant, Sh., D. and R.N. under Article 144 of the Code of Criminal Procedure (“the CCrP”). On the dates specified below, and in accordance with Article 24 § 1 (2) of the CCrP, officials from the prosecutor ’ s office issued three refusals to initiate criminal proceedings in respect of the police officers ’ actions, owing to the absence of the constituent elements of the offences provided for by Article 115 (physical assault causing “minor health damage”) and Article 116 (physical assault causing physical pain, but no “health damage”) of the Criminal Code. Those refusals were overruled by the court and/or the prosecutor ’ s office of the Tambov Region for being unlawful and/or incomplete, and the prosecution authorities were ordered to rectify these deficiencies and carry out additional enquiries:

Refusal No.

issued on:

overruled on:

(i)

1 October 2004

6 December 2004

(ii)

9 December 2004

22 December 2004

(iii)

14 January 2005

27 January 2005

25. In its most recent refusal, of 14 January 2005, the prosecutor ’ s office found that the applicant had driven his car in a state of alcoholic inebriation in the company of P.V., R.A., R.N. and G. Police officers A. and P. had stopped his car and asked him to get into their vehicle so they could draw up an administrative offence report. The applicant had refused to obey their lawful orders and had used obscene language. The applicant had then physically assaulted officers A. and P., and tried to run away. Another police officer, K.A., who had arrived with seven other officers to help his colleagues, had attempted to stop the applicant and had been physically assaulted by him.

26. In particular, officers A., P. and K.A. had sustained the following injuries:

(a) A. had sustained (i) an abrasion in the right occipital region; (ii) abrasions in the left occipital region; and (iii) a closed head injury with concussion, which had caused “minor health damage”;

(b) P. had sustained (i) multiple bruises on his head and body; (ii) an abrasion on the left earlobe; and (iii) concussion, which had caused “minor health damage”; and

(c) K.A. had sustained (i) three abrasions on his right shoulder blade and (ii) three bruises on his right shoulder, which had not caused any “health damage”.

27. The prosecutor ’ s office decided that the police officers ’ actions against the applicant – namely the use of measures to apprehend and restrain him, and the use of “special devices” such as handcuffs – had been in full accordance with the Federal Law on the Police.

28. The prosecutor ’ s office further noted that Sh. and D. had been present during the applicant ’ s apprehension. They had tried to interfere with this apprehension by pulling the police officers by their uniform and dragging them away from the applicant. The police officers had in turn dragged Sh. and D. away. The prosecutor ’ s office found no evidence that physical force had been used by the police officers against Sh. and D.

29. As to R.N. ’ s complaint of physical assault by the police officers, lodged on 26 October 2004, the prosecutor ’ s office decided that it had been false and had contradicted R.N. ’ s initial submissions in the criminal case against the applicant.

30. Finally, the prosecutor ’ s office viewed as false the explanations provided in support of the applicant ’ s position by the applicant himself, D., Sh., R.N., P.V., as well as by several other witnesses - Ms Sh.N., Ms T.O., Ms T.L., and Ms D.A.

2. Judicial review of the first refusal to open a criminal case

31. Sh. and D. appealed against the first refusal of 1 October 2004 to open a criminal case against the police officers, under Article 125 of the CCrP.

32. On 2 November 2004 the Rasskazovo District Court of Tambov allowed their appeal. The court considered that the prosecutor ’ s office had failed to examine forensic medical report no. 124, as amended on 27 July 2004, in relation to the applicant ’ s injuries, and had not questioned all of the witnesses to the incident named by the applicant – Sh.N., T.O. and T.L.

33. Following the aforementioned decision, on 6 December 2004, the prosecutor ’ s office of the Tambov Region ordered additional enquiries into the applicant ’ s allegations of ill-treatment (see paragraph 24 above).

3. Decisions to open a criminal case and terminate the criminal proceedings against police officers

34. On 1 February 2005 the Rasskazovo inter-district prosecutor ’ s office opened criminal proceedings against the police officers (case no. 61134) in connection with the injuries sustained by the applicant. The case was opened under Article 112 § 1 of the Criminal Code (on physical assault causing “moderate health damage”) .

35. On 24 June 2005 the Rasskazovo inter-district prosecutor ’ s office opened criminal proceedings against the police officers (case no. 61459) in connection with the injuries sustained by Sh., D. and R.N. The case was opened under Article 116 § 1 of the Criminal Code (on physical assault causing physical pain, but no “health damage”),

36. On 30 June 2005 the two criminal cases against the police officers were joined as case no. 61134.

37. On the dates specified below, and in accordance with Article 24 § 1 (2) of the CCrP, investigators from the prosecutor ’ s office made three separate decisions to terminate criminal proceedings in respect of the police officers ’ actions, owing to the absence of the constituent elements of the offences provided for in Article 112 § 1 (physical assault causing “moderate health damage”), Article 116 § 1 (physical assault causing physical pain, but no “health damage”) and Article 286 § 3 (abuse of power) of the Criminal Code. The first and second decisions to terminate the criminal proceedings against the police officers were found by the General Prosecutor ’ s Office to have been premature, and the prosecutor ’ s office of the Tambov Region was ordered to overrule them and carry out additional investigations:

Decision No.

issued on:

overruled on:

(i)

7 July 2005

[ unspecified date ]

(ii)

19 December 2005

[ unspecified date ]

(iii)

15 November 2006

[ no information ]

38. The most recent decision to terminate the criminal proceedings against the police officers, of 15 November 2006, repeated in broad terms the conclusions of the prosecutor ’ s office in its refusal of 14 January 2005 to open a criminal case against the police officers (see paragraph 25). The decision also stated that three police officers - B., E. and K.Yu. - had applied physical force and methods to apprehend and restrain the applicant, including “special devices” such as handcuffs, in accordance with the Federal Law on the Police. The actions of the police officers had caused injuries to the applicant (a closed head injury, which was said to be classified as “minor health damage”; as well as abrasions and bruises on his left shoulder; abrasions on his elbows; a bruise on the right shoulder; and abrasions and bruises on his knees, which were not classified as “health damage”). Police officer S. had walked the applicant to the police officers ’ car.

39. The decision of 15 November 2006 also stated that Sh., D. and R.N. had tried to interfere with the apprehension of the applicant by pulling the police officers ’ uniforms and by dragging the applicant away from the officers. Physical force had also been used against them.

40. The decision stated that the three women had sustained the following injuries:

(a) Sh. had (i) a bruise on her left breast and (ii) two bruises on the left shoulder, which had caused no “health damage” to Sh.;

(b) D. had (i) seven bruises on the right and left shoulders and (ii) eleven bruises on the right and left hips, which had caused no “health damage” to D.; and

(c) R.N. had (i) seven bruises on the shoulders and (ii) ten bruises on the hips, which had caused no “health damage” to R.N.

41. The investigator at the prosecutor ’ s office decided that the police officers had used physical force against Sh., D. and R.N. in response to their actions and in full accordance with the Federal Law on the Police. The investigator concluded that the allegations by the applicant, Sh., D. and R.N. of unlawful conduct by the police officers had not been substantiated and had been made in order to help the applicant avoid criminal liability.

42. In addition, the investigator relied on the court ’ s findings in a judgment of 4 August 2005 against the applicant in criminal proceedings against him (see paragraphs 43-51 below).

E. Criminal proceedings against the applicant

43. On 21 July 2004, following complaints from the traffic police officers, the Rasskazovo inter-district prosecutor ’ s office opened criminal proceedings (case no. 13528) against the applicant in connection with his having used violence against police officers A., P., and K.A., an offence punishable under Article 318 § 2 of the Criminal Code of the Russian Federation.

44. On 3 September 2004 the applicant was charged with that offence and arrested. On the same day, the Rasskazovo District Court ordered his detention.

45. On 4 August 2005 the Rasskazovo District Court of Tambov found the applicant guilty of the offence and sentenced him to five years ’ imprisonment.

46. The court found that officers A. and P. had stopped the applicant ’ s car after he had driven it in a state of alcoholic inebriation. In finding that the applicant had been in such a state, the court relied on a confession by the applicant to that effect. However, the applicant denied that he had been driving the car. In concluding that the applicant had been driving the car, the court relied on several statements by witnesses, including officers A., P., as well as a Mr A, who submitted that the applicant ’ s wife, Sh.N., had telephoned him on the morning of 18 July 2004 and asked him to help take the applicant ’ s car out of the police car pound. She allegedly told the witness that the applicant had been driving home in a drunken state from his birthday party and had been apprehended by the police. D. and P.V. submitted that it had been D. who had been driving the car that night and not the applicant.

47. The court established that officers A. and P. had asked the applicant to produce his car registration documents and his driving licence, and had said that they intended to draw up an administrative offence report. In reply, the applicant had started using obscene language and had attempted to walk away. A. had tried to stop the applicant, who had punched A. and kicked him several times on the head and body. The applicant had then punched officer P. and had attempted to run away. K.A., who had arrived with seven other police officers to help his colleagues, had attempted to stop the applicant, who had also hit K.A. on the body when K.A. had approached him. The applicant had then been apprehended.

48. In arriving at its conclusions, the court relied upon the submissions of the police officers who had witnessed the incident. The court also relied upon the submissions of two eyewitnesses, Mr P.O. and Mr P.S. In particular, P.O. told the court that at around midnight on 17 July 2004 he and his friend P.S. had been driving and had seen a fight between the traffic police officers and other people. They had stopped to watch what was going on. According to P.S., the police officers had been trying to apprehend a man (the applicant), who had resisted. The police officers had fallen down after being hit by the man. P.O. could not say in detail exactly how the applicant had been apprehended and what state he had been in when he was handcuffed. Women had been standing nearby and screaming. He could not give further details about the women ’ s actions. P.S. gave similar statements.

49. The court also relied upon the report of a forensic medical expert (examination no. 295 of 24 August 2004), which stated that officer K.A. had sustained injuries which could have been caused on 18 July 2004 by the impact of a hard, blunt object, and did not qualify as “health damage”. The court also relied upon two reports on repeat forensic medical examinations of officers A. and P. (nos. 156/04 and 157/04 of 31 December 2004) which stated that: (i) officer A. had sustained injuries, which could have been caused on the night of 17 to 18 July 2004 by the impact of a hard, blunt object and were classified as “moderate health damage”; and (ii) officer P. had sustained injuries which could have been caused on the night of 17 to 18 July 2004 by the impact of a hard, blunt object and were classified as “minor health damage ” (for a more detailed description of the police officers ’ injuries see paragraph 26 above).

50. The Tambov Regional Court upheld the judgment on appeal, by a decision of 6 October 2005 that had final effect.

51. The courts dismissed the applicant ’ s arguments concerning his ill ‑ treatment by the police officers. The courts also dismissed the allegations by Sh., D. and R.N. of physical assault by the police officers against themselves and the applicant. The courts considered that their statements had been false and had been aimed at helping the applicant (who was, respectively, the son, a relative and a friend of the witnesses) to avoid criminal liability. The courts acknowledged the presence of injuries on the applicant, Sh., D. and R.N. after the incident, but referred to the decision of 7 July 2005 to terminate the criminal proceedings against the police officers, and carried out no further examination of the cause of the injuries.

COMPLAINTS

52. The applicant complains that he was subjected to ill-treatment by the police officers and that the State failed to conduct an effective investigation into the incident.

53. The applicant further complains under Article 5 of the Convention that he was unlawfully deprived of his liberty from 17 to 19 July 2004.

QUESTIONS TO THE PARTIES

1. Was the applicant deprived of his liberty, in breach of Article 5 § 1 of the Convention? In particular, did the deprivation of liberty from 17 to 19 July 2004 fall within paragraph (c) of this provision?

2. Having regard to the use of force by police officers when apprehending the applicant on 17 July 2004, and the injuries found on the applicant thereafter, as recorded in the relevant medical documents and forensic medical experts ’ reports:

(a) 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 and 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; and Velikanov v. Russia , no. 4124/08, § 51, 30 January 2014) ?

(b) Had the recourse to physical force been made strictly necessary by the applicant ’ s own conduct (see Rizvanov v. Azerbaijan , no. 31805/06, § 49, 17 April 2012)? Was the use of force excessive in intensity and/or duration (see Ivan Vasilev v. Bulgaria , no. 48130/99, §§ 63-64, 12 April 2007 )?

3 . 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)?

4 . Having regard to:

(a) the refusals by officials at the prosecutor ’ s office to open a criminal case and carry out an investigation into the applicant ’ s alleged ill-treatment by the police officers, and the revocation of those refusals by the higher prosecutor ’ s office or by the court on the grounds that the pre-investigation enquiries were incomplete;

(b) the decisions of the investigators at the prosecutor ’ s office to terminate the criminal proceedings against the police officers, and the revocation of two of those decisions by the higher prosecutor ’ s office, on the orders of the General Prosecutor ’ s Office, for being premature; and

(c) the most recent decision of 15 November 2006 to terminate criminal proceedings against the police officers;

Has there been an effective official investigation into the applicant ’ s allegations of ill-treatment in the course of his arrest, as required by Article 3 of the Convention (see Labita v. Italy [GC], no. 26772/95, §131, ECHR 2000 ‑ IV)? Have the investigating authority ’ s refusals to open a criminal investigation into his allegations of ill ‑ treatment been indicative of a failure by the State to comply with its obligation under Article 3 of the Convention to carry out an effective investigation (see Lyapin v. Russia , no. 46956/09, §§ 125 ‑ 40, 24 July 2014, and Zelenin v. Russia , no. 21120/07, § 57, 15 January 2015)?

Was there a fair attempt on the part of the domestic authorities to establish whether the applicant had resisted his arrest and, if so, to ascertain exactly what such resistance had consisted of, or to determine the exact scope of the officers ’ perception of the situation, their actual reaction to it, and the proportionality of such a reaction (see Davitidze v. Russia , no. 8810/05 , § 93, 30 May 2013 )?

Did the officers involved draw up a comprehensive report, describing in detail the use of force, and being able to provide an explanation of whether the force used had been inevitable in the circumstances (see Shamardakov v. Russia , no. 13810/04, §§ 96 and 133, 30 April 2015)?

5. The Government are invited to submit:

(a) reports by the police officers to their supervisor immediately after the incident between them and the applicant on 17 July 2004; the applicant ’ s submissions; the conclusions of the internal inquiry of the Rasskazovo police department ( заключение служебной проверки Рассказовского ГРОВД ); and/or any other relevant documents;

(b) copies of all the statements about the incident given by the applicant, D., Sh., R.N., P. and other persons – Ms Sh.N., Ms T.O., Ms T.L., and Ms D.A (as mentioned in the refusal of 14 January 2005 to open a criminal case against the police officers);

(c) copies of all the decisions by the investigating authorities which overruled the refusals to open a criminal case against the police officers and/or decisions to terminate the proceedings against the police officers; and

(d) copies of all court decisions on the applicant ’ s appeals against the investigators ’ decisions, if applicable.

6. The Government are further invited to submit:

(a) documents containing information about, where applicable, the time of the applicant ’ s arrival at police departments, police cells for administrative offenders, temporary detention facilities (IVS), pre-trial detention (SIZO-type) facilities and medical facilities (such as ambulances, traumatology centres, hospitals and forensic medical examination clinics), and the length of time he spent in each of those places;

(b) documents on the applicant ’ s injuries and/or his state of health, as recorded in the places listed in sub-paragraph (a) above;

(c) copies of the investigators ’ decisions to order forensic medical examinations of the applicant, and the explanations of the applicant and the police officers as to the origin of the injuries which formed the basis of the experts ’ assessments; and

(d) all material and records from the applicant ’ s administrative case file, including (among other documents) the formal record of his arrest, and documents concerning the outcome of the administrative proceedings against him.