Communicated on 28 August 2015

FIRST SECTION

Application no. 56782/08 Andrey Vasilyevich ROMANOV against Russia lodged on 15 September 2008

STATEMENT OF FACTS

1. The applicant, Mr Andrey Vasilyevich Romanov , is a Russian national, who was born in 1980 and is serving his sentence in Yoshkar-Ola .

2. The facts of the case, as submitted by the applicant, may be summarised as follows .

A. The applicant ’ s alleged ill-treatment in police custody

3. On 17 May 2006 around 9 a.m. the applicant was asked by phone by Police Officer D. to present himself at Zarechnyy police station of the Yoshkar ‑ Ola town police department ( Заречный отдел милиции УВД города Йошкар - Олы ) for an interview .

4. According to the applicant, when he came to the police station on 17 May 2006 at 9 a.m., several police officers started beating him up in the office of police officer D., punching him on the body, in the stomach, kidneys and chest in order to force him to confess to a crime (manslaughter). He was allegedly held at the police station until 11 a.m. on 18 May 2006.

5. The applicant further submits that in the morning on 18 May 2006, while he was in the office of police officer D., an unknown person entered and showed the applicant an injector filled with liquid, allegedly a drug, and started threatening the applicant with making him a drug addict. He allegedly got frightened and agreed to sign a statement of his “surrender and confession” ( явка с повинной ). Then police officers entered the office of D. with a pre-prepared record of his surrender and confession, which the applicant signed. Afterwards, he was interviewed as a suspect and taken to the crime scene for further verification of his statements.

6. The applicant ’ s record of surrender and confession was drawn up by a duty officer, S.S., at 2.30 p.m. on 17 May 2006 and signed by the applicant. This record indicates that the applicant was informed of Article 51 of the Constitution (the privilege against self-incrimination) . The record d oes not show that the meaning of Article 51 of the Constitution was explain ed to him.

7. At 3 p.m. the applicant was interviewed as a suspect for the first time by investigator Z. in the presence of lawyer U. (recorded as 17 May 2006). The applicant denied committing the crime. He alleged that he had surrendered and confessed under pressure from police officers. He also alleged that he had been called by police officer D. to come to the police department, and when he had come, police officers D., S.S. and three other police officers had started beating him up, rolled him on the floor, and threatened him with rape, in order to force him to confess to murder.

8. On 17 May 2006 the investigator Z. ordered that a written undertaking to appear before the investigating authorities or the court be taken from the applicant as a suspect. The applicant and his lawyer signed the document.

9. At 3 p.m. on 18 May 2006 the applicant was interviewed again as a suspect by investigator Z. in the presence of a lawyer U. (recorded as 18 May 2006). This time the applicant confessed to the crime and provided a detailed account of the circumstances of the crime. He said that during his interview as a suspect on 17 May 2007 he had not told the whole truth because he had been frightened of being put in prison. He said that he had changed his mind and had come to the police station again, on 18 May 2006, to confess. He asked for his statement of surrender and confession to be considered in mitigation.

10. At 4.10 p.m. on 18 May 2006 the investigator Z. released the applicant ’ s arrest record on suspicion of having committed the crime (manslaughter) which was signed by the applicant and his lawyer.

11. At 6.30 p.m. on 18 May 2006 the investigator Z. conducted a crime ‑ scene verification of the applicant ’ s statements concerning the circumstances of the crime with the participation of the applicant, his lawyer, two attesting witnesses, a forensic specialist and a security guard. The applicant answered the investigator ’ s questions concerning the crime. He refused to sign the relevant record without giving any further comments.

12. On 18 May 2006 official charges were brought against the applicant. At 7.45 p.m. he was questioned by investigator Z. in the presence of a lawyer U. and partly confirmed his guilt (record of 18 May 2006). On 20 September 2006 the applicant was questioned again as an accused by investigator Z. in the presence of a lawyer. This time he denied his guilt (record of 20 September 2006).

B . The applicant ’ s injuries

13. In support of his allegations of ill-treatment, the applicant provided his medical records from the temporary detention facility, the pre ‑ trial detention facility and the forensic medical examination report.

14. According to the applicant ’ s medical records from the temporary detention facility, where he was detained from 11.40 p.m. on 18 May 2006 to 7 p.m. on 19 May 2006, the applicant complained of a headache. He also had abrasions on the neck and around his chest, which were recorded by an on-duty officer on 18 May 2006. During his stay in the temporary detention facility he did not apply to see a doctor.

15. According to the applicant ’ s medical records from the pre ‑ trial detention facility, where he was taken on 19 May 2006, the applicant had a yellow bruise in the area between his chest and collarbone, measuring 2 sq. cm, which was recorded by a doctor during the applicant ’ s medical examination on 22 May 2006. The applicant specified that on 17 May 2006 he had been kicked in the chest at the police station. He did not request medical assistance.

16. On 21 July 2006 the applicant ’ s forensic medical examination was conducted, following the investigator ’ s order of 3 June 2006, on the basis of the applicant ’ s medical records from the pre-trial detention facility of 22 May 2006. The applicant was not present during this examination.

17. According to forensic medical expert report no. 2218, the applicant had a yellow bruise in the area between his chest and collarbone (the exact point was not indicated), which appeared to be from the impact of a hard blunt object with a limited contact area, and could have been inflicted on the date indicated in the investigator ’ s order. The injury did not entail a temporary loss of working capacity or a moderate to persistent loss of general working capacity, and should consequently be considered an injury which did not entail permanent damage to health.

C . Pre-investigation inquiry into the applicant ’ s allegations of police ill-treatment

18. On 2 June 2006 the applicant brought a complaint concerning his alleged ill-treatment by police officers to the prosecutor of Yoshkar-Ola . In his submission he alleged that approximately five or six policemen beat him up, including police officers D., S.S., S.O and other police officers.

19. On 15 September 2006 the investigator of the Department of the Interior ’ s prosecutor ’ s office of Yoshkar-Ola refused to institute criminal proceedings against the police officers pursuant to Article 24 § 1 (1) of the Code of Criminal Procedure (“ CCrP ”) in the absence of a crime.

20. Police officers D., S.S. and S.O. denied ill-treating the applicant. According to D. and S.S., on 17 May 2006 the applicant came to the police station and confessed to the killing. S.S. took the applicant ’ s voluntary statement of his surrender and confession. Afterwards, investigator Z. interviewed the applicant as a suspect. According to S.O., he did not participate in the operational part of the investigation into the crime; only once did he enter the room where the applicant was interviewed as a suspect. Police officers D., S.S. and S.O. submitted that neither physical nor psychological pressure had been imposed on the applicant.

21. The investigator noted that the applicant ’ s criminal case statements (namely the interview record of 18 May 2006) indicated that the applicant had given his submissions concerning the crime voluntarily. Moreover, the applicant ’ s allegations, that he had been punched in the face and ears, were not confirmed by the results of the applicant ’ s forensic medical examination, under which the applicant had only one physical injury (a bruise on the chest).

22. The investigator concluded that: ( i ) the applicant ’ s allegations of ill ‑ treatment by police officers D., S.S. and S.O. had not been confirmed; and (ii) his complaints had been made to avoid liability for a crime he had committed.

D . Criminal proceedings against the applicant

23. On 27 March 2007 the Yoshkar-Ola Town Court of Mariy El acquitted the applicant. On 18 June 2007 the Supreme Court of Mariy El quashed this judgment on appeal and ordered a new trial in the first-instance court.

24. On 24 December 2007 the first-instance court convicted the applicant of manslaughter and sentenced him to eight years ’ imprisonment. On 17 March 2008 the higher court upheld this judgment on appeal. At the trial the applicant denied his guilt.

25. The first-instance court convicted the applicant on the basis of (among other evidence): ( i ) the statement of his surrender and confession, dated 17 May 2006; (ii) the statements, which he gave during his interview as a suspect on 18 May 2006; and (iii) the statements, which he gave during the visit to the crime scene on 18 May 2006.

26. According to the applicant, all of this evidence was obtained as a result of his ill-treatment by police officers, under physical and psychological pressure. The applicant requested the court exclude this evidence as inadmissible. However, the court dismissed his request having not found any material breaches of criminal procedural law concerning the obtainment of this evidence. The court noted the following:

27. In relation to the statement of the applicant ’ s surrender and confession, dated 17 May 2006, police officers D., S.S. and S.O. alleged that the applicant had given it voluntarily. They denied the applicant ’ s ill ‑ treatment at the police station. The court considered that it had been obtained in accordance with the law;

28. As to the applicant ’ s statements obtained during his interview as a suspect, dated 18 May 2006, investigator Z. submitted that the applicant had provided his statements concerning the circumstances of the crime voluntarily, without any pressure having been exerted on him. The applicant confirmed that investigator Z. had not exerted pressure on him. His interviews as a suspect had been carried out in the presence of the lawyer.

29. Attesting witnesses K. and M. confirmed that no pressure had been exerted on the applicant during the visit to the crime scene on 18 May 2006. The applicant refused to sign the record concerning the visit to the crime scene. He did not complain of any pressure from police officers; police officer S.S. was also present during this time. The court further noted that the applicant ’ s lawyer and attesting witnesses had been present. The applicant and his lawyer did not provide any comments in relation to this visit in the record.

30. The court thus considered that the applicant ’ s statement of surrender and confession of 17 May 2006, and the statements given during his interview as a suspect and the visit to the crime scene on 18 May 2006 had been obtained in accordance with the law, had been credible and were confirmed by other evidence.

31. The applicant ’ s mother R. submitted that on 17 May 2006 her son had been invited to the police department. She had waited for her son in the corridor of the police department until 6 p.m. On 18 May 2006 she was at the police department from morning until evening. She saw her son; his face was reddened; he sat without raising his head. According to her submissions, she understood that police officers had exerted pressure on her son. She did not see any physical injuries on her son; but from his appearance she understood that he had been beaten up. The court considered that her submissions had been given in support of her son ’ s defence.

32. According to the records of the hearing, issued on 1 November 2007, the applicant ’ s mother R. confirmed at the trial that the applicant had not stayed at home overnight from 17 to 18 May 2006; that she had brought him food in the evening of 17 May 2006; and then she had had to leave the police station, without her son, due to the end of its visiting hours. She asked the police officers not to beat her son because he had recently had a head injury. She returned to the police station on the morning of 18 May 2006. She had seen her son in one of the police station ’ s offices.

33. The court examined the medical evidence concerning the applicant ’ s physical injuries and noted that the applicant ’ s injury on his chest had been anatomically within reach of his own hand. The court further noted that the results of the applicant ’ s forensic medical examination did not confirm the applicant ’ s allegations of ill-treatment, as it reflected only one injury – a bruise on his chest. The court concluded that the applicant ’ s physical injury had no relation to the criminal case and had been obtained under unrelated circumstances.

34 . The court dismissed the applicant ’ s allegations of deprivation of liberty since 17 May 2006, noting that the applicant h ad not been hand ‑ cuffed, had used the toilet, could move around the police station and freely leave it after an undertaking to re appear before the investigati ve authorities and the court had been taken from him by investigator Z. on 17 May 2006.

35. The appeal court upheld the first-instance court ’ s arguments. It further noted the refusal to institute criminal proceedings against police officers on 15 September 2006. The appeal court also found that the applicant ’ s statement of surrender and confession had been obtained in accordance with the law: the applicant had been interviewed in the presence of a lawyer; the lawyer and the attesting witnesses had been present during the visit to the crime scene, in the course of which neither the applicant nor his lawyer had made any additional comments and/or complaints concerning the alleged pressure from police. The appeal court did not address the issue of the applicant ’ s alleged unlawful deprivation of liberty, noting in general the absence of breaches of the criminal procedural law.

E . Criminal proceedings against police officers

36. The applicant provided a copy of the judgment of 8 June 2012, under which the Yoshkar-Ola Town Court of Mariy El convicted police officer D. and certain other policemen of the Mariy El Ministry of the Interior of abuse of power in relation to another person, from which the policemen tried to extract a confession under duress in connection with another criminal case in June 2007.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was subjected to ill-treatment by the police officers at the Zarechny y police station of the Internal Affairs Department of Yoshkar-Ola .

The applicant complains under Article 5 of the Convention that he was unlawfully deprived of his liberty and held at the police station on 17 to 18 May 2006 without the correct written documentation.

The applicant also c omplain s under Article 6 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 .

QUESTION S TO THE PARTIES

1. Having regard to:

(a) the injuries found on the applicant after his interview by police officers on 18-19 May 2006, and

(b) the forensic medical expert ’ s conclusions that the applicant ’ s injuries could have been inflicted at the time that corresponded to the applicant ’ s ill-treatment as alleged by him,

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

3. Having regard to the investigati ng authorit ies ’ refusal to open criminal proceedings against police officers and the court judgments, dismissing the applicant ’ s allegations of ill-treatment by the police officers , was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?

4. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, did his deprivation of liberty on 17-18 May 2006 fall within paragraph (c) of this provision?

5. The Government are invited to submit documents containing information of the time of the applicant ’ s arrival and his stay at the police station.

6 . Having regard to the use of the applicant ’ s self-incriminating statements which were allegedly obtained as a result of his ill ‑ treatment by the police , did the applicant have a fair hearing , in accordance with Article 6 § 1 of the Convention? Did the applicant request at the trial that such evidence should be declared inadmissible? If so, what w ere the ground s for such a request and how was it decided by the domestic courts (please submit the relevant extracts of the court records and/or any other relevant documents)?