Communicated on 9 December 2015

THIRD SECTION

Applications nos 14769/09 and 31632/10 Nikolay Sergeyevich SITNIKOV against Russia and Vadim Sergeyevich KONDAKOV against Russia lodged on 1 December 2008 and 2 September 2010 respectively

STATEMENT OF FACTS

1. The applicant in the first case, Mr Nikolay Sergeyevich Sitnikov, is a Russian national who was born in 1988 and lives in the Krasnodar Region.

2. The applicant in the second case, Mr Vadim Sergeyevich Kondakov, is a Russian national who was born in 1979 and is serving a sentence in the Volgograd Region.

3. The facts of the cases, as submitted by the applicants, may be summarised as follows.

A. Mr Sitnikov

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

4. At around 11 p.m. on 15 August 2007 the applicant and his friend B. were arrested by police on suspicion of rape and taken to the police station. According to the applicant, investigator N. demanded that he confess to the crime, and threatened him with ill-treatment and rape in a cell at the pre-trial detention facility. The applicant refused to sign a “statement of surrender and confession”. He was taken to the cell. He asked the policemen present if he could use the toilet. In response, three policemen started hitting him in the cell. In his complaint to the domestic authorities, the applicant stated that two policemen had held his hands while a third policeman had kicked him in the stomach. Then, the policemen had thrown the applicant to the floor face down.

5. The policemen then took the applicant to N. ’ s office, where the applicant signed a “statement of surrender and confession”, as they had demanded. Afterwards, the applicant was allowed to use the toilet. The policeman who took the applicant to the toilet started insulting him, using offensive language. When the applicant responded, the policeman sprayed gas in his eyes and then hit him several times with a rubber truncheon. The policeman then pushed the applicant into the cell. The applicant fell down and hit his head against the wall.

6. On 16 August 2007 the applicant was taken for a forensic medical examination. After the examination, he was released. On the same day the applicant lodged a complaint with the police about his alleged ill-treatment at the police station. He also asked the traumatology unit of the hospital in Syktyvkar to record his injuries.

7. On 17 August 2007 the policemen arrested the applicant again and took him to the police station. On an unspecified date a court order for the applicant ’ s detention was issued.

2. The applicant ’ s injuries

8. According to the applicant ’ s forensic medical examination report no. 2929 of 16 August 2007, the applicant had the following physical injuries: (i) two abrasions on the left side of his forehead, measuring 2.5 cm by 0.7 cm and 0.7 cm by 0.5 cm; (ii) an abrasion on the bridge of his nose, measuring 4.5 cm by 1.5 cm; and (iii) a bruise around his eye, measuring 3 cm by 4 cm. The applicant explained to the expert that his injuries had been caused by the three police officers who had physically assaulted him at the police station either late on 15 August or in the early hours of 16 August 2007. The expert concluded that the bruise and abrasions on the applicant ’ s face could have been sustained in the circumstances described by the applicant, and that they had not caused any “health damage”. The expert did not exclude the possibility that the injuries could have been caused on 15 August 2007.

9. According to the applicant ’ s medical records from the hospital in Syktyvkar (dated 16 August 2007), the applicant had the following injuries: (i) an acentric fracture of the nose; (ii) a bruise on the forehead; and (iii) abrasions on the forehead.

10. The case documents do not indicate that any additional forensic medical examination of the applicant was ordered by the domestic authorities following complaints from both the applicant and his mother about his alleged ill-treatment at the police station.

3. First refusal to open a criminal case

11. On 20 August 2007 the applicant ’ s mother lodged a complaint about the applicant ’ s alleged ill-treatment with the prosecutor ’ s office of the Syktyvdinskiy district of the Komi Republic. In her complaint she said, inter alia , that at around noon on 16 August 2007 the applicant had returned home from the police station. He had had bruises and abrasions on his body, and a print from a large boot on his T-shirt in the area of his stomach. The applicant had informed her about his ill-treatment at the police station.

12. On 29 August 2007 the prosecutor of the Syktyvdinskiy district of the Komi Republic issued a refusal to open a criminal case against the police officers, finding, in accordance with Article 24 § 1 (2) of the Code of Criminal Procedure (“the CCrP”), that none of the elements of the crimes provided for in Articles 286 and 302 of the Criminal Code (on abuse of powers and forced confessions respectively) were present in respect of the actions of police officers S.I., K.L., S.A., Sh., and K.N., and investigator N.

4. Article 125 review of the first refusal to open a criminal case

13. In accordance with Article 125 of the CCrP, the applicant ’ s mother challenged the first refusal to open a criminal case against the police officers and investigator N.

14. On 21 March 2008 the Syktyvdinskiy district court of the Komi Republic ruled that the first refusal to open a criminal case against the police officers and investigator N. had been unsubstantiated. In particular, the court noted that the prosecutor ’ s refusal of 29 August 2007 to open a criminal case contained contradictory conclusions about the origin of the applicant ’ s physical injuries. Moreover, the prosecutor had not properly assessed the applicant ’ s medical records; established the origin of the bootprint on the applicant ’ s T-shirt, nor how or when it appeared; verified whether or not it was possible to examine video records from the police station; or examined the applicant ’ s argument that his friend B. had heard him screaming in the police station on the night of the alleged incident. The court ordered the investigation authorities to rectify those deficiencies.

15. On 23 April 2008 the Deputy Prosecutor of the Komi Republic overruled the refusal of 29 August 2007 to open a criminal case, and ordered an additional inquiry.

5 . Second refusal to open a criminal case

16. On 24 April 2008 the investigator issued a new refusal to open a criminal case against the police officers and investigator N., finding, in accordance with Article 24 § 1 (2) of the CCrP, that none of the elements of the crimes provided for in Articles 130, 286 and 302 of the Criminal Code (on insulting behaviour, abuse of powers and forced confessions respectively) were present in respect of their actions.

17. The police officers denied subjecting the applicant to any ill ‑ treatment. According to them, while N. was interviewing the applicant ’ s friend B. in his room, the applicant had been near the cells for administrative offenders. In the presence of police officers S.A. and Sh., the applicant had beaten his head against the bars once and his forehead against the wall three times, shouting that the police officers were beating him up. Police officer S.A. had told the applicant that he would record his behaviour on his mobile phone. After that, the applicant had calmed down, taken off his T-shirt and wrapped it around his head. According to the police officers, the applicant gave his “statement of surrender and confession” voluntarily after this incident.

18. Investigator N. stated that he had not seen the applicant with any injuries on 16 August 2008 either during his interview or prior to his release from the police station. N. stated that the applicant had not complained of any physical violence against him when he had given his “statement of surrender and confession”. N. had heard about the applicant ’ s self-inflicted injuries later on from his colleagues. Investigator N. denied that the applicant had been put under any physical or psychological pressure.

19. Having noted both the explanations by the police officers and investigator N. and the applicant ’ s forensic medical examination results and hospital records, the investigator concluded that either late on 15 August or in the early hours of 16 August 2007 the applicant had caused injuries to himself at the police station with the purpose of avoiding criminal liability for the crime which had been committed. The investigator further concluded that the facts alleged regarding the applicant being subjected to ill ‑ treatment, insulted and forced to make a confession had not been established in the course of the additional inquiry.

6. Article 125 review of the second refusal to open a criminal case

20. In accordance with Article 125 of the CCrP, the applicant ’ s mother challenged the second refusal to open a criminal case against the police officers and investigator N.

21. On 16 June 2008 the Syktyvdinskiy district court of the Komi Republic dismissed the appeal by the applicant ’ s mother. It examined the explanations given by the police officers and investigator N., and found that the allegations regarding the applicant ’ s ill-treatment had not been confirmed. The court also noted that the facts alleged regarding the applicant ’ s forced confession had been examined during the applicant ’ s criminal trial, and had been dismissed as unfounded. The court further noted that the trial court had examined and endorsed the refusal of 24 April 2008 to open a criminal case against the police officers. Finally, the court concluded that the allegations regarding the applicant ’ s ill-treatment had been designed to discredit the law-enforcement authorities.

22. On 18 July 2008 the Supreme Court of Komi upheld that decision on appeal.

7. Criminal proceedings against the applicant

23. On 24 April 2008 the applicant was convicted by the Syktyvdinskiy District Court of Komi. It appears that the applicant ’ s case was subsequently overturned on appeal and remitted to the first-instance court for fresh examination. The applicant did not provide copies of the relevant judgments.

24. On 13 November 2008 the applicant was convicted by the Syktyvdinskiy District Court of Komi. The judgment provided indicates that the applicant denied his guilt at trial, alleging that he had given his “statement of surrender and confession” under physical pressure from the police officers and psychological pressure from investigator N. The trial court briefly endorsed the refusal of 24 April 2008 to open a criminal case against the police officers and investigator N.

B. Mr Kondakov

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

25. At around 6.40 a.m. on 18 April 2009 the applicant was arrested at his home on suspicion of manslaughter. At around 9.30 a.m. the applicant was taken to the police station of the Krasnoarmeyskiy district of Volgograd ( УВД по Красноармейскому району г. Волгограда ), where police officers allegedly tortured him in order to force him to confess to the crime. According to the applicant, from 9.30 a.m. until 7.30 p.m. on 18 April 2009, police officers – having handcuffed him – tortured him by punching and kicking him, hitting him with a rubber truncheon and giving him electric shocks using a special device called a “TP-50”. After ten hours of torture, the applicant confessed to the crime and provided false incriminating statements against other people, including his brother.

26. On 18 April 2009 a warrant was issued for the applicant ’ s arrest . On 20 April 2009 a court ordered his detention.

2. The applicant ’ s injuries

27. According to the applicant ’ s medical examination report, issued on 19 April 2009 at the temporary detention facility of Volgograd, where the applicant was examined by an on-duty officer, the applicant had the following physical injuries: (i) a haematoma on the left side of his body; (ii) a swelling on his left hip; and (iii) a swelling on his right ear.

28. According to report no. 398 of 5 May 2009, the applicant ’ s first forensic medical examination was carried out on the basis of an order issued by investigator D. that same day. The applicant was present for this examination. The applicant explained that on 18 April 2009 he had been physically assaulted by police officers at the police station of the Krasnoarmejskiy district of Volgograd who had punched him many times in his lumbar region, chest, shoulders, hips and ears, and had given him electric shocks using a special device called a “TP-50”. He complained of pain in his chest. During the applicant ’ s forensic medical examination, the expert detected only one linear abrasion, measuring 23 mm by 2 mm, located within a bruise of indeterminate form on the left side of the applicant ’ s chest. The expert concluded that this injury had come about as a result of at least one (possibly tangential) blow to the chest with a hard, blunt object of limited surface area seven to nine days before the applicant ’ s examination, and had not caused him any “health damage”.

29. According to report no. 372 of 8 May 2009, one more forensic medical examination was carried out on the basis of: investigator N. ’ s order of 6 May 2009; the hospital medical documentation dated 20 April 2009; and the applicant ’ s medical examination records from the pre-trial detention facility dated 21 April 2009.

30. According to these records, the applicant complained of pain in his chest and in his left knee joint, and of generally feeling unwell. At hospital, he was diagnosed with bruises to his chest and left wrist, and treatment was prescribed which included applying compresses to his haematomas. At the pre-trial detention facility (IZ 34/4), the applicant was also diagnosed with multiple abrasions and haematomas, and bruises to the chest and left wrist, and treatment was prescribed.

31. According to a medical expert, the applicant ’ s multiple abrasions and haematomas could have come about as a result of blows from hard, blunt objects or collisions with such objects and surfaces – including the applicant falling from his own height and colliding with curved objects. The expert further concluded that these injuries had not caused any “health damage” to the applicant. Finally, the expert concluded that it was hard to establish the time at which the applicant ’ s injuries had been inflicted on the basis of the medical documentation provided.

3. Refusals to open a criminal case

32. In April 2009 the applicant lodged a complaint based on his alleged ill-treatment with the investigation unit of the Krasnoarmeyskiy district of Volgograd.

33. On the dates specified below the investigators issued approximately ten refusals to initiate criminal proceedings against the police officers, finding, in accordance with Article 24 § 1 (2) of the CCrP, that none of the elements of the offences provided for in Articles 285 and 286 of the Criminal Code (on abuse of powers) were present in respect of their actions. It appears that those refusals were systematically overruled by the higher authority within the Investigation Committee as being unsubstantiated or unlawful, and the investigation authorities were ordered to carry out additional inquiries:

Refusal no.

issued on:

overruled on:

(i)

9 May 2009

10 November 2009

(ii)

20 November 2009

[ unspecified date ]

(iii)

25 December 2009

[ unspecified date ]

(iv)

22 January 2010

[ unspecified date ]

(v)

4 February 2010

11 March 2010

(vi)

21 March 2010

[ unspecified date ]

(vii)

20 April 2010

[ unspecified date ]

(viii)

22 May 2010

[ unspecified date ]

(ix)

16 June 2010

1 September 2010

(x)

11 September 2010

[ no information ]

34. The applicant did not provide evidence of the refusals to initiate criminal proceedings against the police officers, except in the case of the refusals of 9 May 2009 and 4 February 2010.

35. According to the refusal of 4 February 2010, the police officers in question denied subjecting the applicant to ill-treatment, maintaining that he had not been put under any physical or psychological pressure.

36. Police officer B. further stated that on 18 April 2009 he had interviewed the applicant in Ye. ’ s office. The applicant had complained of pain in his chest. In response to B ’ s question concerning the origin of his injury, the applicant had explained that he had fallen down a flight of stairs.

37. Police officer M. stated that the applicant ’ s injuries could have come about as a result of a fight with the victim of the offence on 17 April 2009.

38. The applicant ’ s mother K. stated that on 16 April 2009 she had seen the applicant without any sign of physical injury.

39. Ch., who appeared to work at the police station, stated that on 18 April 2009, when the applicant was brought to the police station, she had not seen any sign of injury. The applicant had not complained about his health. On 19 April 2009 the applicant had been taken to the temporary detention facility.

40. The investigator noted that, while being questioned as a suspect on 18 April 2009, the applicant had explained that, as a result of being in an inebriated state, he had fallen down a flight of stairs on 17 April 2009.

41. The investigator further noted that the applicant ’ s forensic medical examination results (report no. 372 of 8 May 2009) indicated that the applicant ’ s multiple abrasions and haematomas could have come about as a result of blows from hard, blunt objects or collisions with such objects or surfaces – including the applicant falling from his own height.

42. Referring to report no. 372 (of 8 May 2009), the investigator further concluded that the applicant ’ s injuries had been caused seven to nine days before his forensic medical examination. However, his conclusion is not consistent with that of the report which was provided by the applicant in support of his application to the Court (for more details, see paragraphs 29 ‑ 31 above).

43. The investigator therefore concluded that none of the constituent elements of the alleged crimes had been present in the conduct of the police officers.

4. Criminal proceedings against the applicant

44. On 10 September 2009 the Krasnoarmeyskiy District Court of Volgograd convicted the applicant of manslaughter and sentenced him to nine years and six months ’ imprisonment.

45. The applicant pleaded guilty and his confession was taken into account by the trial court as a mitigating factor. The applicant also submitted that the police officers had subjected him to physical force, and that, as a result, he had initially provided false incriminating statements against other people, including his brother. Subsequently, while being questioned as a suspect on 28 April 2009, he had voluntarily given true statements about the circumstances of the crime. The trial court found these latter statements and pieces of evidence credible, and deemed them admissible. Having examined the results of the applicant ’ s forensic medical examination, the trial court concluded that the applicant ’ s injuries ha d been inflicted after 17 April 2009, and had been unrelated to the actions of the victim of the crime. Having expressly acknowledged the applicant ’ s ill ‑ treatment by police officers, the trial court did not assess their actions in any detail.

46. On 2 March 2010 the Volgograd Regional Court upheld that judgment on appeal.

COMPLAINTS

The applicants complain under Article 3 of the Convention that they were subjected to ill-treatment by police officers. They further complain under Article 13 of the Convention, in conjunction with Article 3 of the Convention , that the State failed to conduct an effective investigation into those incidents, and that they had no effective domestic remedy.

QUESTIONS TO THE PARTIES

1. Having regard to:

(a) the applicants ’ interviews at police stations about their alleged involvement in crimes, and;

(b) the injuries found on the applicants thereafter, as recorded in the relevant medical documents;

have the applicants 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)?

2. Have the authorities discharged their burden of proof by providing a plausible or satisfactory and convincing explanation of how the applicants ’ 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 units ’ refusals to open criminal cases and investigate the applicants ’ allegations of ill-treatment by the police;

(b) the overruling of those refusals by the investigation units ’ higher authority on the ground that the pre ‑ investigation inquiries were incomplete, and;

(c) the investigation units ’ inability to implement full investigative measures within the framework of the pre-investigation inquiries, for example, formal confrontations, identification parades and searches;

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)?

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

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

(a) where applicable, the time of their arrival and the length of time the applicants spent in police stations, 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, forensic medical examination clinics);

(b) the applicants ’ injuries and/or their state of health, as recorded in the places listed in sub-paragraph (a) above;

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

(d) a summary of the information listed in sub-paragraphs (a) to (c) above.

6. As regards the inquiry into the applicants ’ alleged ill-treatment, the Government are invited to submit:

(a) a numbered list (in chronological order) of all decisions by the investigating authorities, such a list to include 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 the overruling or setting aside of the initial decision);

(b) a numbered list (in chronological order ) of all decisions of courts of both instances on the applicants ’ appeals against the investigators ’ decisions, such a list to include the name of the court which made the decision and the date and outcome of the decision;

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