Communicated on 16 November 2015

THIRD SECTION

Application no. 16480/10 Denis Germanovich SANNIKOV against Russia lodged on 18 January 2010

STATEMENT OF FACTS

1. The applicant, Mr Denis Germanovich Sannikov, is a Kazakhstani national who was born in 1979 and lives in the Tver 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. From 2006 onwards the applicant was wanted on suspicion of robbery.

4. At around 10 p.m. on 17 June 2008 he was arrested on the porch of his permanent residence by officers of the criminal investigation unit in Kimry. He was driven to Kimry police station. In office no. 23, the police officers interviewed him about the circumstances of a robbery and an arson attack (which had caused U. ’ s death). The applicant denied having committed the crimes.

5. According to the applicant, police officers then handcuffed his hands behind his back and made him sit on a chair. Five to six police officers started physically assaulting him, punching and kicking him in his head and torso, and on his hands and legs. They also gave him electric shocks with a special device and placed a plastic bag over his head in order to prevent him from breathing for short intervals. The police officers asked him to provide self-incriminating statements about the crimes, then he started to lose consciousness and fell off the chair onto the floor. The police officers continued to kick him. When the applicant regained consciousness, he found that he was wet. The police officers threatened him with sexual abuse and attempted to take off his trousers. They also insulted him using offensive language. The ill-treatment continued until around 2 a.m. or 3 a.m. on 18 June 2008. The applicant was then placed in a temporary detention cell in the same building.

6. At around 8 a.m. or 9 a.m. on 18 June 2008 the police officers drove the applicant to another police station in Kimry (the former Savelovskoye police department). They demanded that he give a “statement of surrender and confession” to the crimes in question, and subjected him to more ill ‑ treatment. The number of police officers involved and the forms of ill ‑ treatment to which the applicant was subjected were the same as at the previous police station.

7. As a result of the ill-treatment, the applicant agreed to incriminate himself. He then asked the policemen if he could use the toilet and attempted to abscond by climbing through an open window in the toilet. He was very weak, and the policemen caught him again soon after outside the police station. Approximately fifteen policemen started physically assaulting him in front of the police station, demanding that he sign a confession and threatening to shoot him if he did not.

8. After the ill-treatment, the applicant signed: (i) a “statement of surrender and confession” (record of 18 June 2008); (ii) self-incriminating statements made during his formal interview (record of 18 June 2008); and (iii) self-incriminating statements made during the official visit to the crime scene (record of 19 June 2008). It appears that applicant ’ s record of arrest was made on 18 June 2008.

9. The record of the applicant ’ s “statement of surrender and confession” was made by police officer V. at 12.30 p.m. on 18 June 2008. The record does not indicate that the applicant was informed of his privilege against self-incrimination under Article 51 of the Constitution. It was signed by the applicant in the absence of a lawyer.

10. At 8.35 p.m. on 18 June 2008 the applicant was formally interviewed by investigator G. The record of that formal interview indicates that the applicant was suspected of having robbed and murdered U. The record further indicates that the applicant was represented by a State-assigned lawyer, I. The copy of the record which was provided is not signed by the applicant, I., investigator G. or anybody else.

11. At 2.20 p.m. on 19 June 2008 investigator G. led an official visit to the crime scene, where the applicant ’ s statements about the circumstances of the crimes were considered. The applicant, I., two witnesses, three police officers and an expert took part, and the record of the official visit is signed by all participants.

12. On an unspecified date the applicant ’ s detention was ordered by a court.

13. On 25 June 2008, during a formal interview, the applicant informed the investigator that he had not committed arson and therefore had nothing to do with the murder of U., and that he had made self-incriminating statements as a result of the physical and psychological violence to which he had been subjected by the police officers of the criminal investigation unit in Kimry.

B. The applicant ’ s injuries

14. According to the applicant, on 19 June 2008, shortly after the alleged ill-treatment, he had complained about the state of his health (he had had a headache and had been experiencing pain all over his body) to an on-duty officer at the temporary detention facility at Kimry police station. The on ‑ duty officer had noted down his visible signs of injuries, and had called an ambulance. The ambulance paramedics had also noted down the applicant ’ s injuries.

15. According to the records of the ambulance unit of Kimry District Hospital, at 10.05 p.m. on 19 June 2008 an ambulance was called to the temporary detention facility at Kimry police station (“ следственный изолятор ГОВД г . Кимры ”) to assist the applicant. Those records do not indicate what the applicant ’ s state of health was, or what injuries he had.

16. According to the applicant ’ s medical records of 2 July 2008 from pre-trial detention facility IZ-69/2 in Kashin, the applicant complained of pain under his ribs on his right side. He had bruises on his abdomen, which were healing, and a swollen left ankle joint. He explained to the doctor that on 18 June 2008 he had been physically assaulted by police officers.

17. On 5 August 2008 the applicant had a forensic medical examination, which had been ordered on 25 July 2008 by investigator N. According to report no. 500, the forensic medical examination comprised analysis of: the applicant ’ s medical records of 2 July 2008, his physical examination, and his explanation that on 18 June 2008 he had been physically assaulted by police officers, who had extracted a “statement of surrender and confession” from him, placed a plastic bag over his head and given him electric shocks with a special device. The expert concluded that the bruises on the applicant ’ s abdomen had originated from a blow with a hard, blunt object or objects before his examination on 2 July 2008, and had not caused him any “health damage”. The expert further concluded that it was impossible to determine the exact time that the applicant ’ s bruises were caused, owing to the absence of any detailed description of them in the applicant ’ s medical records.

C. First refusal to open a criminal case and its judicial review

18. On 20 June 2008 the applicant lodged a complaint with the criminal investigation unit in Kimry concerning his alleged ill-treatment by police officers. He alleged that on 18 June 2008 he had been severely beaten by police officers, and that his injuries (which had included abrasions and haematomas) had been recorded. The applicant also alleged that, as a result of his ill-treatment, he had been forced to give a “statement of surrender and confession” in respect of the crimes about which he had been interviewed, although he he had not committed all of those crimes. He also asked for a forensic medical examination, which was ordered by investigator N. on 25 July 2008 (see paragraph 17 above).

19. On 6 August 2008 investigator N. refused to institute criminal proceedings against the police officers under Article 24 § 1 (2) of the Code of Criminal Procedure (“the CCrP”), owing to the absence of the constituent elements of a crime under Article 286 of the Criminal Code on abuse of powers.

20. Under Article 125 of the CCrP, the applicant appealed against the first refusal to open a criminal case against the police officers.

21. On 27 November 2008 the Kimrskiy Town Court of the Tver Region allowed his complaint: the refusal of 6 August 2008 was found to be unsubstantiated and unlawful, and the investigation authorities were ordered to rectify the deficiencies in the inquiry process.

22. In particular, the court noted that investigator N. had not interviewed police officers F., P. and M.; had not checked the applicant ’ s medical records from the temporary detention facility where his injuries had been recorded initially; and had not examined the circumstances in which he had been provided with medical assistance from the ambulance paramedics in June 2008.

23. Following the court ’ s decision, the first refusal was overruled on an unspecified date by the higher authority within the Investigation Committee.

D. Second refusal to open a criminal case and its judicial review

24. On 15 January 2009, once again under Article 24 § 1 (2) of the CCrP, investigator L. refused to institute criminal proceedings against the police officers on the same grounds as before.

25. The police officers denied subjecting the applicant to any ill ‑ treatment.

26. In his report of 18 June 2008, police officer V. initially stated that the applicant had fled from the police station following his interview about the robbery and murder of U. The applicant had been found hiding in a bush not far from the police station, and then he had tried to run away. The applicant had resisted arrest and, in accordance with the Federal Law on the Police, the police had applied combat techniques.

27. Police officer V. later stated that on 18 June 2008 the applicant had been interviewed about his involvement in the robbery and murder of U. The applicant had told police officers about the circumstances of those crimes. He had then asked to use the toilet and had fled from the police station through an open window. V. and another police officer, P., had gone out to find him. They had found him hiding behind a tree. When the applicant had seen V. approaching him, he had tried to run away and had not obeyed V. ’ s command to stop. V. had then caught up with him, grabbed his shoulders from behind and fallen to the ground with him. According to V., the applicant had fallen to the ground face down. V. had taken him back to the police station, where the applicant had written his “statement of surrender and confession”. V. stated that the applicant had not been subjected to any physical or psychological pressure. After the applicant had written his “statement of surrender and confession” he had been taken to the investigator.

28. Police officers P., M. and F. provided similar statements.

29. Investigator L. noted down the applicant ’ s medical records of 2 July 2008 and the results of his forensic medical examination of 5 August 2008. The investigator also noted down the applicant ’ s medical records from the temporary detention facility for the period from 18 to 25 June 2008, according to which the applicant had not complained about the state of his health.

30. Investigator L. concluded that the applicant ’ s injuries had resulted from the lawful application of force by the policemen when he had tried to abscond. Investigator L. did not assess the issue of the applicant ’ s alleged deprivation of liberty from 17 to 18 June 2008, which the applicant had raised in his complaint.

31. Under Article 125 of the CCrP, the applicant appealed against the second refusal of 15 January 2009 to open a criminal case against the police officers.

32. On 12 May 2010 the Kimrskiy Town Court of the Tver Region dismissed the applicant ’ s complaint. The court considered that the pre ‑ investigation inquiry into the applicant ’ s complaint of ill-treatment was complete. The court did not assess the issue of the applicant ’ s alleged deprivation of liberty from 17 to 18 June 2008, which the applicant had also raised.

33. During the examination of the applicant ’ s appeal, the applicant ’ s neighbour Zh. confirmed that the applicant had been arrested on 17 June 2008. She had not seen him with any injuries on that day. The applicant ’ s mother, S., stated that Zh. had informed her about her son ’ s arrest. She had also received a call from an unknown person at the pre-trial detention facility who had been detained with her son and had informed her that he (the applicant) had been physically assaulted by police officers. The court did not assess those statements.

34. On 14 July 2010, in a brief judgment, the Tver Regional Court upheld that decision on appeal. As to the applicant ’ s record of arrest, which had been made on 18 June 2008, the appeal court concluded that it could not be subject to examination under Article 125 of the CCrP.

E. Criminal proceedings against the applicant

35. On 17 June 2009 the Tver Regional Court convicted the applicant of robbery and murder and sentenced him to sixteen years ’ imprisonment.

36. At trial, the applicant admitted his guilt in respect of the robbery; however, he denied his guilt with regard to the murder. He submitted that the self-incriminating statements he had made about the robbery and the murder of U. had been obtained as a result of physical and psychological pressure from police officers. Those statements included: (i) his “statement of surrender and confession” (record of 18 June 2008); (ii) the self ‑ incriminating statements made during his formal interview (record of 18 June 2008); and (iii) the self-incriminating statements made during the official visit to the crime scene (record of 19 June 2008).

37. On 2 June 2009 the applicant made an application to the trial court to exclude that evidence as inadmissible. In addition to the allegations of ill ‑ treatment by police officers, the applicant raised the following points:

(i) he had not been informed of his privilege against self-incrimination under Article 51 of the Constitution when his “statement of surrender and confession” (record of 18 June 2008) had been obtained, and he had signed that statement in the absence of a lawyer;

(ii) he had made self-incriminating statements during his formal interview (record of 18 June 2008) in the absence of a lawyer. According to the applicant, lawyer I., who had been assigned to his case, had arrived after the interview, and had signed the record of interview without asking any questions or clarifying the applicant ’ s position;

(iii) he had refused to participate in the official visit to the crime scene (19 June 2008), referring to Article 51 of the Constitution. However, he had been taken to the crime scene by police officers against his will and under duress, handcuffed to police officer P.; and

(iv) he had actually been arrested on 17 June 2008, although no proper record of this existed, and his record of arrest had only been drawn up on 18 June 2008.

38. According to the applicant, on 16 June 2009 he also made an application to the trial court for the police officers who had arrested him on 17 June 2008 and extracted his “statement of surrender and confession” on 18 June 2008 to be examined. However, the trial court dismissed his application.

39. The trial court further dismissed the applicant ’ s applications to exclude his self-incriminating statements from his criminal trial. It simply noted that his allegations regarding the forced confession had been verified during the preliminary investigation and had not been confirmed. The court did not address the issues of the extraction of the applicant ’ s “statement of surrender and confession” in the absence of a lawyer; the fact that the State ‑ assigned lawyer, I. had not been present during his formal interview; or the applicant ’ s deprivation of liberty from 17 to 18 June 2008.

40. On 26 August 2009 the Supreme Court of Russia upheld that judgment on appeal. The appeal court endorsed the findings of the pre ‑ investigation inquiry into the applicant ’ s allegations of ill-treatment. It noted that the applicant had been provided with a lawyer during both the preliminary investigation and the trial of his criminal case. Finally, it upheld the trial court ’ s decision to dismiss the applicant ’ s applications to exclude the self-incriminating statements.

COMPLAINTS

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

42. The applicant further complains that he was unlawfully deprived of his liberty and held at Kimry police station from 17 to 18 June 2008 without proper records of his detention being made.

43. Finally, the applicant complains under Article 6 §§ 1 and 3 (c) 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. He wrote his “statement of surrender and confession” in the absence of a lawyer. The State-assigned lawyer I. was not present during his formal interview, arrived after the interview, and signed the interview record without clarifying the applicant ’ s position. The applicant also complains that the legal assistance provided by I. was ineffective, and that the court refused to exclude the self-incriminating statements he made on 18 and 19 June 2008 as inadmissible evidence.

QUESTIONS TO THE PARTIES

1. Having regard to:

(a) the applicant ’ s interviews at the police station about his alleged involvement in a robbery, arson attack and murder; and

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

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) ?

2. Have the authorities discharged their burden of proof by providing a plausible or satisfactory and convincing explanation as to how the applicant ’ s physical 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 the first refusal, on the grounds that the pre ‑ investigation inquiry was incomplete;

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

did the authorities carry out an effective investigation, in compliance with their procedural obligations under 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. Was the applicant deprived of his liberty, in breach of Article 5 § 1 of the Convention? In particular, did his deprivation of liberty from 17 June 2008 until the record of his arrest was drawn up on 18 June 2008 fall within paragraph (c) of this provision?

6. Having regard to:

the use of evidence in his criminal trial, which was allegedly obtained as a result of the applicant ’ s ill ‑ treatment by police officers, most notably:

(a) his “statement of surrender and confession” (record of 18 June 2008);

(b ) the self-incriminating statements made during his formal interview (record of 18 June 2008); and

(c ) the self-incriminating statements made during the official visit to the crime scene (record of 19 June 2008);

did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention?

7. Having regard to:

(a) the use of the applicant ’ s “statement of surrender and confession” (record of 18 June 2008) as evidence in his criminal trial, which was allegedly obtained in the absence of a lawyer; and

(b) the use of the self-incriminating statements made during the applicant ’ s formal interview (record of 18 June 2008) as evidence in his criminal trial, given that, allegedly, those statements were made in the absence of the applicant ’ s lawyer, and his lawyer signed the relevant interview record after the formal interview had taken place, without discussing or clarifying the applicant ’ s position;

was the applicant able to defend himself, as required by Article 6 § 3 (c) of the Convention? Was the legal assistance provided to the applicant by the lawyer who was assigned to him effective?

8. How were the applicant ’ s applications to exclude evidence which was allegedly obtained as a result of ill-treatment by police officers decided by the domestic courts? The Government are invited to submit the relevant extracts of the court records and/or any other relevant documents.

9. 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 above in sub-paragraph (a), including inter alia his medical records of 18-19 June 2008, which were issued by the temporary detention facility in Kimry in the Tver Region, and the medical records made by the ambulance paramedics, which contained detailed descriptions of the applicant ’ s injuries;

(c) the time when the applicant was formally 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;

(d) 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;

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

10. The Government are invited to submit the following documents concerning the applicant ’ s criminal case:

(a) a signed copy of the applicant ’ s for mal interview record of 18 June 2008;

(b) a signed copy of the applicant ’ s formal interview record of 25 June 2008;

(c) the applicant ’ s appeal against the judgment of 17 June 2009; and

(d) the transcripts of the appeal hearings.