Communicated on 19 December 2013

FIRST SECTION

Application no. 41936/09 Andrey Sergeyevich GUGLYA against Russia lodged on 16 July 2009

STATEMENT OF FACTS

The applicant, Mr Andrey Sergeyevich Guglya , is a Russian national, who was born in 1966 . His current whereabouts are not specified. The applicant is represented before the Court by Ms Y. Vorobovich , a lawyer practising in Krasnoyarsk .

A. The circumstances of the case

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

In 2004 a Mr N. was murdered. Until June 2008 the applicant was not prosecuted or interviewed in relation to this criminal offence.

On 30 June 2008 officers Ka . and M. arrested the applicant in relation to N. ’ s murder. Allegedly, he was beaten up during his arrest. He sustained a hematoma on his head and a bruise on his face. It is unclear whether the arresting officers made any reports concerning use of physical force or constraints against the applicant.

The arrest record, which was compiled several hours after the arrest, contains a list of procedural rights that a suspect has in criminal proceedings. The record bears the applicant ’ s signature. As follows from the record, the grounds for arrest (Article 91 of the Code of Criminal Procedure) related to the fact that “the eyewitnesses and witnesses had pointed to [the applicant] as the crime perpetrator”. No lawyer was present during this stage of the proceedings. It follows from the record that the applicant ’ s girlfriend (a lawyer) was informed of his arrest.

The same evening investigator Kh . interviewed the applicant in the presence of lawyer Y. and officer Ka . The applicant made no self-incriminating statements. The interview record contains a list of procedural rights that a suspect has in criminal proceedings.

On 1 July 2008 the Zheleznodorozhniy District Court of Krasnoyarsk held a hearing and heard the parties. The court ordered the applicant ’ s detention pending the investigation. The applicant ’ s detention was subsequently extended on several occasions.

Also on 1 July 2008 the applicant was transferred to Krasnoyarsk detention centre no. 1. The applicant was put in cell no. 90 where he was beaten up by cellmates Be . and Ve . According to the applicant, the cellmates wanted him to make a confession in relation to the murder; they showed him photographs of his next of kin threatening them with violence. In the applicant ’ s submission, the beating was instigated by the investigating authority.

On 2 July 2008 the applicant wrote a confession admitting the murder.

On 3 July 2008 investigator Kh . interviewed the applicant in the presence of counsel Y. It follows from the interview record that the applicant stated as follows:

“I feel well and am ready to testify. At present I have no bodily injuries. Before this interview I has been given time to talk to my counsel Y. On 2 July 2008 I made a voluntary confession, without any psychological or physical duress...”

The applicant made self-incriminating statements during this interview. His lawyer made a note in the interview record stating that his client “unduly incriminated himself”.

On the same day, the applicant made a written statement stating that he “might have to waive Y. ’ s services” in the nearest future. According to the applicant, this statement was made under threats.

On 4 July 2008 lawyer Y. wrote to the regional bar association in the following terms:

“...When I arrived in the detention centre on 3 July 2008 I saw the investigator and operational officers working on the case there...They talked to my client...When I was finally able to talk to him he looked frightened and wrote [the above] statement...He told that after his confession the day before he was told, under threats, to waive legal assistance...”

The lawyer sought guidance from the bar association as to the course of action to be taken, from the legal and ethical point of view, in relation to the above situation.

Apparently, on 4 July 2008 lawyer Y. also made a written complaint to the regional prosecutor ’ s office suspecting ill-treatment of the applicant.

On 9 July 2008 the applicant was interviewed by investigator Kh . in the presence of counsel Y. and retracted his earlier confession. He also raised an allegation of duress during this interview. He also wrote to the regional prosecutor ’ s office asking for “protection against violence”. The applicant ’ s lawyer also lodged a (further) complaint with the regional prosecutor ’ s office.

From 9 July 2008 to 1 p.m. next day the applicant was kept in a small cell without food, water or access to a toilet.

Subsequently, the applicant was kept in the same cell with the inmates who had, allegedly, ill-treated him. Allegedly, the applicant was “subjected to violence, forced to wear female clothes and was sexually assaulted”. According to the applicant, the above ill-treatment was related to his above complaints and his refusal to waive legal assistance.

On 10 July 2008 the applicant attempted a suicide by cutting his veins. The applicant was subsequently accused of a criminal offence in that connection.

On the same day (10 July 2008) the applicant was examined in the detention facility. He was transferred to another cell (no. 183).

Since 14 July 2008 the applicant was assisted by another counsel.

Allegedly, several operational officers (in particular, the above-mentioned officer M.) visited the applicant in the detention facility on numerous occasions between July and November 2008, discouraging him from accepting legal assistance and from retracting his confession.

On an unspecified date, an unspecified authority or public official lau n ched a preliminary inquiry ( доследственная проверка ) in relation to the applicant ’ s allegations of ill-treatment. It is unclear whether the applicant was informed of it and whether he was interviewed in relation to his allegations of ill-treatment. It is unclear who carried out this inquiry and what investigative measures were taken during it.

On an unspecified date, investigator K. of the Zheleznodorozhniy District Investigative Office ordered a forensic medical examination of the applicant indicating that it related to the alleged use of force by the applicant against the staff of the detention facility on 10 July 2008. This examination was carried out on 17 July 2008; the report was issued on 8 August 2008 (see below).

In the meantime, on 21 July 2008 investigator Ko . issued a decision refusing to institute criminal proceedings in relation to the alleged ill-treatment. The decision summarises the applicant ’ s version of the events, statements from counsel Y., officers Ka . and M. The investigator concluded that the applicant ’ s cellmates or above public officials had not caused him any injuries.

In his report dated 8 August 2008 the expert concluded that the applicant had numerous bruises and scratches on his body. The expert report disclosed that the applicant had a number of bodily injuries, including a scratch (7*3 cm) on his right shoulder joint; 13 scratches on his left shoulder joint; and a bruise (4*2 cm) on his chest; another bruise (5*3 cm) on his back. The expert wanted to examine the applicant ’ s left shoulder on a later date but the applicant was not taken before the expert.

On 19 August 2008 another expert carried out an examination of the applicant for ten minutes and issued a report stating that the scratches and bruises indicated in the earlier report did not cause any health damage.

On 21 August 2008 the decision of 21 July 2008 was set aside by the supervising official for unspecified reasons.

On 27 August 2008 investigator Ko . issued a new refusal to institute criminal proceedings in relation to the allegation of ill-treatment. This decision was set aside in September 2008 for unspecified reasons.

On 2 October 2008 investigator Ko . again refused to institute criminal proceedings.

On 20 November 2008 the applicant attempted suicide.

On 28 November 2008 the applicant sought judicial review of the refusal of 2 October 2008. By a judgment of 10 March 2009 the Tsentralnyy District Court of Krasnoyarsk upheld the refusal of 2 October 2008 on judicial review. On 14 May 2009 the Krasnoyarsk Regional Court upheld the judgment.

The outcome of the criminal case against the applicant is unclear.

B. Relevant domestic law and practice

Criminal proceedings may be instituted if there is ( i ) a complaint alleging that a criminal offence was committed; (ii) a voluntary confession; or (iii) information about a completed or planned offence (Article 140 of the Code of Criminal Procedure, “ CCrP ”).

Under Article 91 of the CCrP the police may arrest a person suspected of having committed an offence punishable by imprisonment if ( i ) the person is caught in the act or immediately after committing the offence ; (ii) eyewitnesses or victims have pointed to this person as the alleged perpetrator of the crime; or (iii) this person displays traces of the crime.

When deciding on detention pending investigation, the competent authority is required to establish whether there are “sufficient grounds to consider ” that the accused would abscond during the investigation or trial, reoffend or obstruct the establishment of the truth (Article 97 of the CCrP ). It must also take into account the gravity of the offence , information on the accused ’ s character, his or her profession, age, state of health, family status and other circumstances (Article 99).

In its ruling no. 5 of 10 October 2003 (concerning domestic application of international law and international treaties) the Supreme Court of Russia reminded the lower courts that under the Convention existence of a reasonable suspicion is a condition sine qua non for the assessment of the lawfulness of arrest/detention.

No corresponding provision is made in ruling no. 1 of 5 March 2004 by which the Supreme Court provided guidance to the lower courts as to the application and interpretation of the CCrP , in particular as regards arrest and detention in criminal proceedings.

In its ruling no. 22 of 29 October 2009 (concerning arrest, detention and other preventive measures in criminal cases) the Plenary Session of the Supreme Court of Russia reminded the courts below of the requirement of “reasonable suspicion” which has to be complied with in each case. The Supreme Court defined “reasonable suspicion” as sufficient indications (for instance those mentioned in Article 91 of the CCrP ) that the person concerned could commit the offence.

Detention pending investigation may be ordered by a court in respect of a person suspected of or charged with a criminal offence punishable by more than two years ’ imprisonment, provided that a less restrictive preventive measure cannot be applied (Article 108 § 1).

COMPLAINTS

The applicant complains under Article s 3 and 13 of the Convention that he was beaten up during his arrest on 30 June 2008; that he was subsequently placed in a coercive environment, was subjected to pressure and threats on the part of the State agents who also instigated beatings by cellmates. The also applicant complains that the investigation into his allegations was not effective and speedy.

The applicant alleges under Article 5 of the Convention that that his arrest and detention, in particular in 2008 and 2009, were not based on relevant and sufficient reasons.

QUESTIONS TO THE PARTIES

1. Was there a violation of Article 3 of the Convention on account of the alleged ( i ) injuries sustained during the applicant ’ s arrest on 30 June 2008; (ii) ill-treatment, threats and intimidation by cellmates at the instigation of the agents of the State; (iii) ill-treatment, threats and intimidation by agents of the State?

In addressing the above question the parties are requested to deal, inter alia , with the following points:

(a) Once in the hands of the authorities:

( i ) Was the applicant informed of his rights? If so, when , and what rights was he informed about?

(ii) Was he given the possibility of inform ing a family member, friend, etc. about his detention and his location and , if so , when?

(iii) Was he given access to a lawyer and , if so , when?

(iv) Was he given access to a docto r and , if so , when and was his medical examination conducted out of the hearing and out of sight of police officers and other non ‑ medical staff?

(b) Where was the applicant held between 30 June and 1 July 2008 ? Was the applicant given access to a lawyer during this period of time (please, submit the relevant documents)?

(c) Was the applicant kept in the same cell with the inmates who had, allegedly, ill-treated him?

(d) Was the applicant visited by agents of the State in the detention facility/facilities between July and November 2008 (please, submit the relevant documents, including logbooks)? Was a lawyer present during these visits?

2. Did the above allegations give rise to an effective investigation in the present case? In particular:

(a) When did the authorities become aware or ought to be aware of the presence of injuries on the applicant ’ s body (on 30 June, 1 July 2008 or another date)? Did the arresting officers make reports concerning use of force during the applicant ’ s arrest? When did the authorities launch a preliminary inquiry ( доследственная проверка )?

(b) Was a forensic medical examination ( судебно-медицинская экспертиза ) carried out in order to establish, inter alia , harm to the applicant ’ s health and the possible origin and time of infliction of his injuries? Was it carried out speedily?

(c) Which officers from which public authorities were involved in the inquiry ( доследственная проверка ) into the applicant ’ s complaints of ill-treatment? Were they independent of the persons who were allegedly implicated in the applicant ’ s ill-treatment? In particular, was there hierarchical, logistical, organisational or another interdependence between the authorities concerning investigators Kh ., K. and Ko ., officers Ka . and M.? What operational and other activities did they carry out in the course of the above inquiry?

Having regard to Article 38 of the Convention, the respondent Government are requested to submit a copy of the file(s) relating to the preliminary inquiry ( доследственная проверка ) in relation to the applicant ’ s allegations of ill-treatment; a copy of the applicant ’ s confession statement.

3 . Was the applicant ’ s detention, in particular in 2008 and 2009, based on relevant and sufficient reasons, as required by Article 5 § 3 of the Convention? In particular:

- Were his arrest and detention based on a reasonable suspicion that he was implicated in the offence ( причаст е н к совершению преступления ) under Article 105 of the Criminal Code , as required by Article 5 § 3 of the Convention ?

- At the relevant period of time, what was the statutory or jurisprudential basis requiring the presence of a reasonable suspicion when depriving one of his or her liberty in a criminal case (see “Relevant domestic law and practice”)?

- Were the testimonies of unspecified “eyewitnesses and witnesses”, as indicated in the arrest record of 30 June 2008, the only and sufficient basis in relation to the suspicion that the applicant could have committed the offence against Mr N. in 2004? Did the detention court examine this issue on 1 July 2008 or subsequently to confirm that the reasonable suspicion existed initially and persisted later on?

Having regard to Article 38 of the Convention, the respondent Government are requested to submit a copy of the investigator ’ s request for detention, all supporting material that was submitted in support of this request; and the hearing record of 1 July 2008.