Communicated on 7 January 2016

THIRD SECTION

Application no. 56552/09 Oleg Aleksandrovich KOZLOV against Russia lodged on 17 November 2008

STATEMENT OF FACTS

1. The applicant, Mr Oleg Aleksandrovich Kozlov, is a Russian national, who was born in 1972 and is serving a sentence in the Ulyanovsk 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. At around 2 p.m. on 15 February 2004 the applicant was apprehended by police officers of the Zheleznodorozhnyy district police department of Ulyanovsk ( Железнодорожный РОВД г . Ульяновска ) in his father ’ s apartment. The applicant ’ s mother and father, as well as two men, Mr O. and Mr L., were present when the applicant was apprehended and noted that at that time he was free of any injuries.

4. The applicant was driven to the police station. At around 5 p.m. he was taken to an office, where three police officers physically assaulted him by punching him on his body and stifling his breathing with a gas mask ( противогаз ). They also demanded that he confess to the murder of a woman called Ms L . The applicant denied his guilt and he was then questioned as a witness. From 8.20 p.m. on 15 February 2004 to 9.05 a.m. on 16 February 2004 he was unlawfully detained at the police station for an administrative offence under Article 20.1 (disorderly conduct) of the Code of Administrative Offences. It is unclear when an official record of his arrest was drawn up.

5. On 16 February 2004 the applicant ’ s father saw the applicant at the police station. He had many injuries on his body and some teeth had been knocked out. The applicant told his father that the police officers had demanded that he confess to the murder of L. The applicant also said that he feared he would be murdered if his father did not do anything to prevent it. The father and the wife of the applicant hired a lawyer, who insisted on the applicant undergoing a forensic medical examination, to which the applicant was subsequently taken.

6. On 17 February 2004 the applicant lodged a complaint with the prosecutor ’ s office of the Zheleznodorozhnyy district of Ulyanovsk, alleging that he had been unlawfully detained by the policemen and physically assaulted at the police station. On 19 September 2007 he lodged an additional complaint with the investigating authorities.

B. The applicant ’ s injuries

7. According to report no. 1022 of 16-18 February 2004, on 16 February 2004 a forensic medical expert carried out a forensic medical examination of the applicant, as ordered by L., an investigator at the prosecutor ’ s office.

8. The applicant explained to the expert that on 15 February 2004, between 6 to 7 p.m., three police officers had physically assaulted him at the Zheleznodorozhnyy police station in Ulyanovsk. He further submitted that prior to the incident in question he had not suffered any kind of physical assault or been involved in any fights. He had also not been examined by a doctor. He complained of a headache; pain in his forehead, upper jaw and lips; and pain on both sides of his body.

9. The forensic medical expert recorded the following injuries on the applicant: (i) a cut on the left side of his forehead; (ii) a scratch on his upper lip; (iii) signs of bleeding under the skin in the area behind the left ear; (iv) an abrasion on the outside part of the left ear; (v) a bruise on the corner of his right eye; (vi) bruises on both lips; (vii) two bruises on the right upper forearm; (viii) bruises on the upper and lower parts of the back; and (ix) bruises on his chest.

10. The forensic medical expert concluded that the applicant ’ s injuries had been caused by the impact of a hard, blunt object, and had not caused any “damage to his health”. The expert further concluded that the applicant ’ s injuries had been sustained between one and three days before the examination. The expert did not exclude the possibility that the applicant ’ s injuries had been caused on the night of 13 to 14 February 2004 (when the murder of L. had been committed, which was a day before the applicant ’ s apprehension by the police officers).

C. Criminal proceedings against the applicant

11. On 2 September 2004 the Zheleznodorozhnyy District Court of Ulyanovsk convicted the applicant of several crimes (murder, robbery and theft) and sentenced him to eleven years ’ imprisonment.

12. On 20 October 2004 the Ulyanovsk Regional Court upheld this judgment on appeal.

13. There is no evidence in the applicant ’ s criminal case file to show that he had been involved in a violent fight on the night of 13 to 14 February 2004 with the victim, L., of whose murder he was convicted.

D. Criminal proceedings concerning alleged abuse of power by the police

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

14. On the dates specified below, and in accordance with Article 24 § 1 (1) of the Code of Criminal Procedure (“the CCrP”), the prosecutor ’ s office of the Zheleznodorozhnyy district of Ulyanovsk issued several refusals to initiate criminal proceedings, owing to the absence of any crime (the most recent refusal, that of 8 October 2007, was issued by the Zheleznodorozhnyy inter-district investigation unit):

Refusal No.

Issued on:

Overruled on:

(i)

[ unspecified date ]

[ unspecified date ]

(ii)

21 September 2006

[ unspecified date ]

(iii)

8 December 2006

8 April 2011

(iv)

8 October 2007

8 April 2011

15. The two most recent refusals (of 8 December 2006 and 8 October 2007) were overruled on 8 April 2011 by the investigation department of the Ulyanovsk Region as being premature, and the investigating authorities were ordered to carry out additional enquiries.

2. Decision to open a criminal case

16. On 16 May 2011 the investigation unit of the Zheleznodorozhnyy district of Ulyanovsk opened criminal case no. 113300489 under Article 286 (3) (abuse of power) of the Criminal Code.

17. On 5 July 2011 the applicant was officially granted victim status in the criminal case against the police officers.

3. First decision to suspend the criminal proceedings, and subsequent court review

18. On 5 April 2012 the investigation unit of the Zheleznodorozhnyy district of Ulyanovsk suspended its preliminary investigation of the criminal case for failure to identify the perpetrators.

19. The applicant, relying on Article 125 of the CCrP, lodged a court appeal against the decision of 5 April 2012.

20. On 19 August 2013 the Zheleznodorozhnyy District Court of Ulyanovsk upheld the applicant ’ s appeal. The court considered that the decision by the investigation unit of 5 April 2012 to suspend the preliminary investigation of the criminal case had been unsubstantiated and unlawful, and the investigating authorities were ordered to rectify those deficiencies.

21. On 9 December 2013 the Ulyanovsk Regional Court upheld that decision on appeal.

22. In particular, the courts noted that the applicant had, during identity parades, identified two police officers (Mr R. and Mr N.) who had physically assaulted him. The investigator had not looked into this fact and had not substantiated his conclusion that it had been impossible to identify the people who had applied unlawful investigative measures in relation to the applicant.

23. On 27 December 2013 the preliminary investigation in the criminal case relating to the applicant ’ s allegation of abuse of power was extended for one month, to 27 January 2014.

4. Second decision to suspend the criminal proceedings, and subsequent court review

24. On 27 December 2013, the same day on which the period for the preliminary investigation of the criminal case was extended, the investigation unit of the Zheleznodorozhnyy district of Ulyanovsk suspended it for a second time, again owing to a failure to identify any perpetrators. It did not carry out any additional investigative or procedural measures.

25. The applicant lodged a court appeal against the decision of 27 December 2013 to suspend the criminal proceedings, again relying on Article 125 of the CCrP.

26. On 14 April 2014 the Zheleznodorozhnyy District Court of Ulyanovsk dismissed the applicant ’ s appeal.

27. On 2 June 2014 the Ulyanovsk Regional Court overturned that decision and remitted the case to the first-instance court for a fresh examination. In particular, the appeal court noted that the first-instance court had not examined the prosecutor ’ s decision of 27 December 2013 on the renewal of the criminal case, which had contained instructions to the investigator on additional measures to be carried out during the preliminary investigation of the criminal case. The failure to take account of that decision had made it impossible to conclude whether the investigator had fulfilled those instructions fully. Moreover, the appeal court noted that the investigator had suspended the criminal case on the same day it had been resumed (27 December 2013), regardless of the fact that the term for the preliminary investigation had been extended by one month, until 27 January 2014.

28. On 19 June 2014 the Zheleznodorozhnyy District Court of Ulyanovsk dismissed the applicant ’ s complaint for a second time. The court considered that the investigator had carried out all the investigative measures that had been possible in the absence of a suspect or an accused.

29. On 11 August 2014 the Ulyanovsk Regional Court upheld that decision on appeal, finding that the first-instance court ’ s decision had been duly reasoned and complete.

30. The fact that the applicant had identified two police officers (R. and N.) as having allegedly physically assaulted him was considered to be insufficient evidence to open criminal proceedings against the officers. The allegations had also not been confirmed by other material in the criminal case file concerning alleged abuse of power.

31. The court found it established that the applicant had sustained injuries. That had been the reason why the investigator had not terminated the criminal proceedings in relation to the applicant ’ s allegation of abuse of power, but had suspended the case.

32. The appeal court thus concluded that the second decision to suspend the criminal proceedings had been lawful.

E. Other criminal proceedings against the police officers

33. The applicant referred to an incident of ill-treatment which had taken place in 2004 at the same police station involving another person. According to the applicant, Officer R. and one of his colleagues had tortured this other person in their office in the same manner in which they had tortured the applicant.

34. In April 2005 Officer R. and his colleague were convicted of abuse of power. During the investigation of that case, the prosecutor ’ s office found gas masks in R. ’ s office. The applicant alleged that those masks had also been used on him.

COMPLAINTS

35. The applicant complains under Article 3 of the Convention that he was subjected to ill-treatment by the police officers and that the investigation into his complaints of ill-treatment did not result in the punishment of the perpetrators.

36. The applicant further complains under Article 5 of the Convention that he was unlawfully deprived of his liberty from 15 to 16 February 2004 without any proper record of his arrest and detention.

QUESTIONS TO THE PARTIES

1. Was the applicant deprived of his liberty, in breach of Article 5 § 1 of the Convention? In particular, did his deprivation of liberty from 15 to 16 February 2004 fall within paragraph (c) of this provision?

2. Having regard to:

(a) the applicant ’ s interview by police officers at the police station about his alleged involvement in several crimes, including the murder of Ms L., before he was formally a suspect in the relevant criminal proceedings; and

(b) the injuries found on the applicant ’ s body thereafter, as recorded in the relevant forensic medical expert report;

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

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 domestic authorities ’ refusals to open a criminal case and carry out an investigation into the applicant ’ s alleged ill-treatment by the police, and the overruling of those refusals, on the basis of incomplete pre ‑ investigation inquiries;

(b) the domestic authorities ’ decisions to suspend the criminal proceedings concerning the applicant ’ s allegations of abuse of power on account of the failure to identify the perpetrators;

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)?

5. The Government are invited to submit documents containing the following information in respect of the applicant ’ s alleged ill ‑ treatment in police custody:

(a) where applicable, the time of his arrival and the length of time the applicant spent in 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);

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

(c) if applicable, the applicant ’ s self-incriminatory statements or explanations to police officers in any form, for example a “voluntary surrender and confession” ( явка с повинной ) or an explanation;

(d) the time when the applicant was formally arrested, recognised as a suspect in the criminal proceedings, informed of his rights as a suspect, given the opportunity to inform his family or other third parties of his detention, and given access to a lawyer;

(e) the investigator ’ s decision to order the applicant ’ s forensic medical examination, and the explanation by the applicant and the police officers as to the origin of the injuries which formed the basis of the expert ’ s assessment;

(f) a summary of the information listed in sub-paragraphs (a) to (e) above.

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

(a) copies of all refusals to open criminal proceedings against the police officers, and – in relation to each decision – the corresponding decision which overruled it or set it aside;

(b) copies of a decision to open criminal proceedings, a decision to renew the criminal proceedings of 27 December 2013, and a decision to suspend the criminal proceedings of the same date; and

(c) copies of court decisions on the applicant ’ s appeals against the investigators ’ decisions (including the decisions of the Zheleznodorozhnyy District Court of Ulyanovsk of 19 August 2013 and 14 April 2014).