Communicated on 12 December 2013

FIRST SECTION

Application no. 24651/06 Sergey Nikolayevich TIKHOMIROV against Russia lodged on 19 May 2006

STATEMENT OF FACTS

The applicant, Mr Sergey Nikolayevich Tikhomirov , is a Russian national, who was born in 1978 and lives in Tyumen.

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

A. Alleged ill-treatment

1. Events of 20 November 2004 – 14 February 2005

(a) The applicant ’ s arrest and alleged ill-treatment on 20 and 21 November 2004

On 20 November 2004 at approximately 8 p.m. the applicant was arrested by the police officers S., V., T. and Kr. on suspicion of an attempt to kill a policeman . He was brought to the premises of the Organised Crime Unit (hereafter “OCU”) of the Ministry of the Interiour of the Tyumen Region ( УБОП МВД по Тюменской области ) , where the policemen S. and V. allegedly handcuffed the applicant to a radiator and started beating him with a view to extract a confession. As it transpires from the handwritten copies of the complaints submitted by the applicant to domestic authorities (see below), the applicant received blows in the head, thorax, liver, kidneys, genitals and vertebral spine; a plastic bag and a gas ‑ mask was put on the applicant ’ s head in order to cut access to air; the applicant was beaten with a thick book on his head, with baseball bats on his back, stomach and legs; hanged with his hands back. Following the ill ‑ treatment which lasted approximately 12 hours, the applicant made a self ‑ incriminating statement.

According to the applicant, on 21 November 2004 at approximately 4 p.m. the transcript of the applicant ’ s apprehension was drawn by investigator F. of the Oktyabrskiy District prosecutor ’ s office of Yekaterinburg . A ccording to the copy provided by the applicant, the transcript of apprehension was compiled on 20 November 2004 at 10.15 p.m.

According to the applicant, o n 21 November 2004 he was brought to the temporary detention centre ("IVS") of Yekaterinburg.

On 22 November 2004 , apparently following the IVS doctor ’ s refusal to keep the applicant in the IVS with his injuries, the applicant was brought to a hospital where he was examined by a doctor, and then transferred back to the IVS.

(b) The applicant ’ s detention in the IVS until 4 December 2004

The applicant was detained in the IVS until 4 December 2004. According to the applicant, during the 14 days he spent in the IVS he was regularly visited by the officers S., V. and K. who put “physical and psychological pressure” on him in order to extract further confessions for several counts of murder and robbery. It appears that in addition to the abovementioned methods of interrogation the officers also used electric shocks. The applicant accepted to give self-incriminating evidence. During the interrogations a State-appointed lawyer was present, but the applicant had no opportunity to communicate with the lawyer in private. On 24 November 2004 the applicant was officially charged with murder of the policeman.

The applicant alleges that he systematically complained of his injuries to the IVS doctor.

(c) The applicant ’ s transfer to remand prison IZ-66/1 and alleged pressure by cellmates

On 4 December 2004 the applicant was transferred to remand centre IZ ‑ 66/1 (" SIZO ") of Yekaterinburg and put in cell no. 635. According to the applicant, in the SIZO he was subject to “physical and psychological pressure” exercised by his cellmates, in particular M. and Ku., in order to make him confess to other crimes and dissuade him from revoking his previous statements.

2 . Alleged ill-treatment in the correctional colony IK-2

On 14 February 2005 the applicant was transferred to correctional colony IK-2 of Yekaterinburg ( ПФРСИ ФГУ ИК -2 г . Екатеринбург ) where he was systematically ill-treated in cell No. 2 by prisoners G., N., P., and A., allegedly acting on instructions of the police. In particular, he was tied to a bed or a railing and received blows in his head, liver, kidneys, genitals, knees and legs. The inmates also used wooden sticks and an iron basin to beat the applicant, ropes and belts to suffocate him, and electric devices which they put in the applicant ’ s anus. The applicant was kept in the IK ‑ 2 until 30 January 2006.

B. The applicant ’ s injuries and respective medical documents

According to the certificate issued in June 2011 by the head of the IVS of Yekaterinburg, on 22 November 2004 the applicant complained to the IVS doctor of thorax contusion and was brought to hospital no. 36 of Yekaterinburg. He was diagnosed with paraorbital hematoma of the left eye and contusion of thorax on the right side. The doctors found no evidence of a thermal injury of the applicant ’ s hands.

According to the medical logbook of individuals admitted to the IVS of Yekaterinburg, on 2 0 November 2004 orbital hematoma of the left eye and contusion of thorax on the right side were recorded.

According to the certificate issued on 7 June 2010 by the deputy head of the remand centre IZ-66/1, on 4 December 2004 upon his arrival at the SIZO the applicant was diagnosed with contusion of thorax and face tissues.

It appears that on 29 June 2005 the applicant underwent forensic medical examination in the colony IK-2. No injuries were found on him.

C . The authorities ’ response to the appl icant ’ s complaints of police ill ‑ treatment

1. The applicant ’ s complaints in May and June 2005 concerning all counts of the alleged ill-treatment

On 6 May 2005 the applicant ’ s lawyer requested a forensic medical examination of the applicant. The request remained without follow-up.

According to the applicant, on 23 May 2005 he complained to the Regional Prosecutor with regard to all the above counts of the alleged ill ‑ treatment, but his letter was not sent by the colony ’ s administration. The applicant submitted a handwritten copy of the complaint.

On 21 June 2005 the applicant ’ s lawyer complained to prosecutor of the applicant ’ s unlawful detention in the IK-2, of the administration ’ s failure to dispatch the applicant ’ s letter of 23 May 2005, of the absence of reply to the request of forensic medical examination of the applicant, and of the failure to record the applicant ’ s injuries.

On 3 July 2005, after a pre-investigation inquiry under Article 144 of the Code of Criminal procedure ( CCrP ), Deputy Prosecutor supervising the penal institutions of the Sverdlovskiy Region ( « помощник Свердловского прокурора по надзору за соблюдением законов в исправительных учреждениях » ) decided not to open criminal proceedings. The decision contained the account of the events by the applicant, as well as statements of the applicant ’ s cellmates N. and G. who denied the applicant ’ s allegations. The decision also cited the conclusions of the forensic medical expert examination , which had been conducted on 29 June 2005 and found no injuries on the applicant , as well as the explanations received from the colony ’ s administration, according to which the applicant had never complained either to the administration or to the doctor during his detention at the IK-2 , and had not submitted any complaint on 23 May 2005 . It appears that the decision did not deal with the events that had taken place immediately after the applicant ’ s arrest .

On 5 December 2005, apparently following the applicant ’ s complaint to the Regional Ombudsman, the decision of 3 July 2005 was annulled by the Prosecutor supervising the penal institutions of the Sverdlovskiy Region on the ground that the prisoners P. and A. had not been questioned in the course of the inquiry.

On 6 December 2005 investigator Ko . of the office of the Prosecutor supervising the penal institutions of the Sverdlovskiy Region issued a new refusal to bring criminal proceedings against the officers . The decision cited the testimony of the prisoners P. and A. who denied the accusations. In all other aspects the de cision was identical to the previous one.

On 9 January 2007 the applicant challenged the decision of 6 December 2005 in court. On 15 February 2007 the Verkh-Isetskiy District Court of Yekaterinburg refused to examine the complaint on the ground that the trial in the applicant ’ s criminal case had already started. The applicant did not appeal against the decision.

2. Further complaints of ill-treatment in the IK-2

On 16 February 2006 the applicant complained to the Regional Prosecutor that during his detention in IK-2 from 14 February 2005 to 30 January 2006 he had been systematically beaten by the inmates G., N., P., A. and L., and indicated that witnesses Sm., Y., and Sur. could confirm his allegations.

On 13 March 2006, after a pre-investigation inquiry, the inquirer G. of the operative service at the IK-2 ( дознаватель , оперуполномоченный оперативного отдела ФГУ ИК -2 ГУФСИН РФ по Свердловской области ) decided not to open criminal proceedings for lack of criminal event. The decision cite d the “explanations” received from the inmates N., G., L. and from the witness Sm. All of them rebutted the applicant ’ s account of the events. The decision also established, on the basis of the information provided by the colony ’ s administration, that the applicant had never complained of the inmates ’ unlawful acts to the colony ’ s administration or doctor.

The applicant challenged the decision of 13 March 2006 in court. On 18 July 2007 the Verkh-Isetskiy District Court of Yekaterinburg (hereafter “the District Court”) refused to examine the complaint on the ground that it had already been examined in substance in the course of the applicant ’ s trial. On 12 October 2007 the decision of 18 July 2007 was quashed by the Sverdlovskiy Regional Court (hereafter “the Regional Court”). The Regional Court held that the applicant ’ s trial did not preclude the courts from examination of the complaint.

On 31 October 2007 the District Court again refused to examine the applicant ’ s complaint on the ground the applicant had not provided a copy of the decision of 13 March 2006. On 16 January 2009 the Regional Court found that it was the duty of the District Court to request the copy of the decision of 13 March 2006 from the investigative authorities, and set aside the decision of 31 October 2007. On 27 February 2009 the District Court examined and dismissed the applicant ’ s complaint on the ground that in substance the applicant sought re-examination of his criminal case. On 28 October 2009 the decision was upheld on appeal by the Regional Court.

In the meantime, on 14 November 2006 the decision of 13 March 2006 was annulled by the Prosecutor supervising the penal institutions of the Sverdlovskiy Region. It is unclear from the text of the decision what the ground for annulment was.

On 15 November 2006 investigator K. of the Sverdlovskiy Regional Prosecutor for correctional colonies ’ office issued a new decision not to open criminal proceedings. The decision cited the testimony of yet another cellmate denying the applicant ’ s allegations, and otherwise was identical to the previous one.

On 30 June 2010 the District Court dismissed the applicant ’ s complaint against the decision of 15 November 2006 . The court found that the investigation into the applicant ’ s complaint had been “full and thorough”, as it “took into account the applicant ’ s explanations, the medical certificate attesting that the applicant had an injury on his chest on 4 December 2004, [...] the act of the applicant ’ s admission to the FGU with the said injuries was transmitted to Tyumen”.

On 22 September 2010 the decision of 30 June was upheld by the Sverdlovskiy Regional Court.

3. Further complaints of ill-treatment in the IVS

On 26 June 2006 the applicant again complained of the unlawful acts of the policemen S., V. and K. who had beaten him in the IVS in November 2004. It appears that since then the investigators delivered not less than ten decisions not to open criminal proceedings, dated 29 June 2006, 11 August 2006, 8 September 2006, 27 October 2006, 8 February 2007, 16 March 2007, 7 March 2008, 20 April 2008, 7 May 2008, 22 November 2008, 10 July 2010. Nine of those decisions were subsequently annulled by a superior prosecutor, and the case was remitted for further inquiry. It is unclear if the tenth decision, delivered on 10 July 2010, was quashed as well, and if there were any further developments in the investigation.

It appears that the applicant challenged some of the decisions in court. His complaints were disallowed on the ground that the applicant allegations had already been examined on trial. The applicant was advised thereof by letters of 18 February 2008, 20 May 2008, 29 May 2008, and 11 August 2008. He also received copies of the decisions not to open criminal investigation dated 8 May 2008 and 8 April 2010.

It also appears that on 26 July 2007 and on 13 December 2007 the applicant yet again complained of the ill-treatment in the IVS in November 2004. It is unclear whether there was any follow-up to the complaints.

D. Criminal proceedings against the applicant

1. The applicant ’ s trial

On 19 April 2007 the Sverdlovskiy Regional Court convicted the applicant of two murders, 14 counts of robbery, banditry, illegal possession of firearms and encroachment on the life of a policeman. The applicant was sentenced to life imprisonment.

During the trial the applicant and his lawyer requested to declare inadmissible the evidence obtained under the ill-treatment, namely the applicant ’ s self-incriminating statements, confessions and interview records of 21 and 24 November 2004; interview records of 22 and 24 February 2005, 24 March 2005, 6 April 2005, 18 April 2005, 26 May 2005; transcripts of v erification of the evidence on the spot of 24 November 2004 and 29 March 2005.

The applicant also sought to summon his cellmates from IVS, SIZO and IK ‑ 2 who could attest of the alleged ill-treatment: B. from the IVS, Gr., R. and Tar. from the SIZO, and Y. and Sm. from IK-2. He also sought examination of the officers S., V. and K.

Finally, the applicant requested that a forensic medical expert examination be conducted in respect of him, and a biological expert examination be conducted in respect of the stains of his blood allegedly left on the interview record of 21 November 2004, his confession statements of 17 February 2005 and on his self ‑ incriminating statements of 21, 22 and 25 November 2004.

R., who had been detained with applicant in the SIZO in early February 2006, submitted to the court that he had seen marks left by handcuffs on the applicant ’ s hands and that the applicant had told him about the ill ‑ treatment.

Gayd ., who had been detained in one cell with the applicant in July 2005, submitted to the court that he had seen injuries on the applicant ’ s stomach.

Men., who had been detained in one cell with the applicant since May 2005, testified that he had seen prisoner G. beating the applicant in the stomach. The witness also submitted that the applicant had been taken out of the cell every time a doctor was visiting the detainees.

The court also questioned investigator F. who had interrogated the applicant as a suspect, apparently on 21 November 2004. F. testified that physical force had been used during the applicant ’ s arrest, and that the applicant had a bruise under one eye, but had not been bleeding. F. also submitted that he had interviewed the applicant in the presence of a lawyer.

Police officer Kr. testified that he had not participated in the applicant ’ s apprehension, but had seen the applicant when the latter had been brought to the OCU premises in Tyumen. Kr. had noticed an abrasion on the applicant ’ s face.

It appears that the court also questioned Sh., the head of the investigative group in charge of the applicant ’ s criminal case, as well as the police officer V. who had taken part in the applicant ’ s arrest on 20 November 2004. Both submitted that following the use of physical force the applicant had sustained an abrasion in an eyebrow area. They were unable to explain the nature of the stains on the procedural documents, but excluded the possibility that those had been left by drops of blood falling from the applicant ’ s face during the interrogations.

The trial court dismissed the applicant ’ s motion for a forensic biological expert examination as follows: “it is impossible to establish the origin of the stains on the documents, hence the court does not consider necessary to conduct a forensic biological expert examination”.

With regard to the admissibility of the applicant ’ s self ‑ incriminating statements, confessions and interview records, the court rejected the duress argument on the ground that the said evidence was obtained “in full accordance with the provisions of the Code of Criminal Procedure”, in presence of the applicant ’ s lawyer, and that the applicant had been duly advised of his procedural rights. The court accordingly admitted the evidence in question.

Further, the trial court rejected the applicant ’ s ill-treatment allegations with reference to the results of the pre-investigation inquiry (see above). The court found that the applicant ’ s allegations represented a means of avoiding criminal responsibility.

2. The appeal proceedings

The applicant appealed against the conviction. He argued that his confessions and statements obtained in the course of the pre ‑ trial investigation were inadmissible as obtained under duress; that the court failed to summon the witness Y.; that the court refused without a good reason to order a forensic biological expert examination.

On 15 October 2007 the Supreme Court of Russia upheld the judgment on appeal. The Court found that the first instance court had examined the allegations of ill-treatment in detail and reasonably rejected them as unfounded. All the defence ’ s motions to declare evidence inadmissible had been decided by the court in accordance with law and the respective court ’ s decisions had sufficient reasoning . The applicant ’ s lawyer was absent from the appeal hearing.

The applicant lodged a supervisory appeal. On 26 July 2010 the Presidium of the Supreme Court of Russia quashed the decision of 15 October 2010 on the ground that the applicant ’ s right to defend himself had been violated as his lawyer had not been present at the appeal hearing. The case was remitted to the appeal court for a fresh examination.

On 15 September 2010 the Supreme Court of Russia by a new appeal decision upheld the judgment of 19 April 2007. The reasoning related to the applicant ’ s complaints of ill-treatment and inadmissibility of evidence remained unchanged, as compared to the decision of 15 October 2007.

COMPLAINTS

The applicant complains under Article 3 of the Convention about the ill ‑ treatment in police custody and about lack of effective investigation into his relevant complaint . He also complains under Article 6 § 1 that his conviction was based on his coerced statements.

QUESTIONS TO THE PARTIES

1. Was the applicant subjected to torture, inhuman or degrading treatment or punishment by the police officers, in breach of Article 3 of the Convention?

In answering that question the Government are requested to address, inter alia , the following points concerning the circumstances surrounding the applicant ’ s alleged ill-treatment:

(a) Once in the hands of the police on 20 November 2004 :

( 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 his family about his apprehension and , if so , when?

(iii ) Was he given access to a lawyer and , if so , when ? Was that a lawyer on duty invited by a police officer or an investigator, or a lawyer of the applicant ’ s choice ? If given initially a State-appointed lawyer, when did the applicant receive access to a lawyer of his choice?

(iv ) Was he given access to a docto r and , if so , when ?

(b) What activities, where, when and by whom were conducted with the applicant ’ s participation during the period between the moment of his actual apprehension and until the moment when he was put in the IVS (21 November 2004) ? The Government are required to provide a detailed hour ‑ by-hour report on what happened during that period and to account for the time spent by the applicant in the hands of police.

Where was the applicant held during that period? What was his procedural status? What confessions and/or statements ( явк а с повинной ; показания ) did he give during that period ? Was he given access to a lawyer before and during each such activity, and, if so, was that a lawyer on duty invited by a police officer or an investigator, or a lawyer of the applicant ’ s choice ? Was he given access to a docto r and , if so , when ?

(c) By whom of the police officers, for what purposes, when and for how long was the applicant visited in the IVS of Yekaterinburg from 21 November to 4 December 2004 (please submit extracts from the IVS register concerning the applicant ’ s visitors , records of investigative activities, etc.)? What confessions and/or statements ( явк а с повинной ; показания ) did he give during that period ? Was he given access to a lawyer before and during each such activity, and, if so, was that a lawyer on duty invited by a police officer or an investigator, or a lawyer of the applicant ’ s choice ? Did the applicant seek medical assistance during his stay in the IVS? Was he given access to a doctor, and if so, when? What was the reason for the applicant ’ s medical examination on 22 November 2004?

The Government are required to provide relevant procedural and other documents in support of their answers, including where applicable the decision on bringing the criminal proceedings within the framework of which the applicant was apprehended; records of the applicant ’ s apprehension as a suspect; the investigator ’ s request for remand in custody; records of investigative activities including interrogations as a suspect and accused, surrender with a confession of guilt ( явк а с повинной ) , if any; records of the applicant ’ s entering and leaving the police station from the Register of persons brought to a police station ( Книга учета лиц , доставленных в дежурную часть орган а внутренних дел ), of his admission to detention facilities ( IVS, SIZO, IK-2 ) , any documents attesting to his state of health and injuries during the period concerned, etc.

2. As regards the applicant ’ s submissions that he was ill-treated on the police instructions by the convicted prisoner s in the correctional colony IK ‑ 2 between 14 February 2005 and 30 January 2006, has he been subjected to torture or inhuman or degrading treatment in breach of Article 3 of the Convention? What was the reason for transferring the applicant to the correctional colony IK-2? Did the applicant seek medical assistance during his detention at the correctional colony IK-2 from 14 February 2005 to 30 January 2006? If he was seen by any medical staff, on what date(s) did it happen and what was the result of the applicant ’ s examination?

3. Having regard to the procedural protection from torture, inhuman or degrading treatment or punishment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), did the State conduct an investigation in compliance with Article 3 of the Convention (see, among many others, Mikheyev v. Russia , no. 77617/01, §§ 108-110 and 121, 26 January 2006 ) into the events of 20 November 2004 – 14 February 2005 and into the applicant ’ s allegations of ill-treatment in the correctional colony IK-2?

In particular, considering that where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention (see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999 ‑ V),

(a) Did the domestic authorities discharge such a duty?

(b) Was the investigating authority which examined the applicant ’ s complaint of ill-treatment impartial and independent from the investigating authority which conducted investigation in the criminal case against the applicant?

(c) Were the police officers, which assisted the investigating authority and carried out operational activities in the course of the pre-investigation inquiry into the applicant ’ s complaint, impartial and independent from the police officers who allegedly subjected the applicant to ill-treatment/ordered the prisoners to subject the applicant to the ill-treatment?

(d) Was the investigating authority which examined the applicant ’ s complaint of police ill-treatment impartial and independent from the police officers who allegedly subjected the applicant to ill-treatment/ordered the prisoners to subject the applicant to the ill-treatment? Did those police officers ’ department conduct operative and other supporting activities in cases investigated by the investigating authority in question?

(e) What operational and other activities were carried out in the course of the pre-investigation inquiry? Were other persons detained in the cell together with the applicant? If so, were they questioned in relation to the applicant ’ s complaint of police ill ‑ treatment?

( f ) Does the pre ‑ investigation inquiry under Articles 144-145 of the Code of Criminal Procedure of the Russian Federation provide for procedural guarantees and investigative methods capable of establishing the facts of the case and leading to the identification and punishment of those responsible, where there is an arguable claim of ill-treatment under Article 3 of the Convention? Did the domestic authorities ’ refusal to bring criminal proceedings and, hence, to conduct a preliminary investigation according to Part VIII, Articles 150-226 of the Code of Criminal Procedure breach the State ’ s obligation to conduct an investigation in compliance with Article 3?

The Government are invited to submit copies of the materials of the pre ‑ investigation inquiries under Articles 144-145 of the Code of Criminal Procedure including the investigating authorities ’ decisions on the applicant ’ s complaints of ill-treatment, as well as courts ’ decisions on the applicant ’ s complaints against the investigating authority ’ s decisions, medical certificates and medical experts ’ reports concerning the applicant ’ s injuries and other relevant documents.

4. W as there a violation of Article 6 § 1 of the Convention on account of the use made of any tainted evidence at the applicant ’ s trial ? In particular:

(a) Was any evidence obtained between 20 November 2004 and 30 January 2006 (confessions, etc.) used for convicting the applicant? Reference is being made, in particular, to the applicant ’ s self ‑ incriminating statements, confessions and interview records of 21 and 24 November 2004; interview records of 22 and 24 February 2005, 24 March 2005, 6 April 2005, 18 April 2005, 26 May 2005; transcripts of v erification of the evidence on the spot of 24 November 2004 and 29 March 2005, allegedly made under duress.

b) Was the applicant ’ s conviction based, solely or to a decisive extent, on such evidence?

The parties are requested to provide relevant documents, including a copy of the trial record ( « протокол судебного заседания » ) and copies of the grounds of appeal against the judgment of 19 April 2007 .

5. Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 3 of the Convention as required by Article 13 of the Convention?