FIRST SECTION

Application no. 31316/09 by Sergey Petrovich GORSHCHUK against Russia lodged on 30 May 2009

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Sergey Petrovich Gorshchuk , is a Russian national who was born in 1969 and lives in Nizhniy Novgorod . He is represented before the Court by The Committee Against Torture , a non-governmental organisation based in Nizhniy Novgorod .

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

A. Alleged ill-treatment in police custody

In August 2007 investigation started into the murder of a man whose body had been found in one of the city parks in Nizhniy Novgorod.

On 14 September 2007 the applicant, Mr K. and two other persons were apprehended by police at a private house in a village in Nizhniy Novgorod region. Police officers of the Kanavinskiy district police department of Nizhniy Novgorod ( управление внутренних дел Канавинского района Нижнего Новогорода , “Kanavinskiy RUVD”) pushed the applicant to the floor and handcuffed him. Then they explained that they were from the Kanavinskiy RUVD and took the applicant and the others to the Kanavinskiy RUVD where they arrived at about 8 p.m.. At about 2:30 a.m. on 15 September 2007 the applicant was questioned by the same five police officers who had apprehended him. He was demanded to confess to the murder. When he refused, he was allegedly beaten up.

According to official records, the applicant was apprehended under Articles 91 and 92 of the Code of Criminal Procedure as a suspect in the murder case at 5:55 a.m. on 15 September 2007.

The applicant ’ s beatings allegedly lasted until the arrival of an investigator of the Kanavinskiy District Investigation Department of the Investigation Committee at Nizhniy Novgorod prosecutor ’ s office (“Kanavinskiy Investigation Committee”) who was in charge of the murder case. The investigator arrived at about 6:30 a.m. and questioned the applicant in the presence of a lawyer about the murder. The applicant refused to confess. Mr K., who was questioned as a witness, was allegedly also beaten up and gave statements against the applicant implicating him in the murder. He confirmed his statements when confronted with the applicant.

At 9:20 a.m. on the same day the applicant was placed in IVS, a temporary detention facility at the Kanavinskiy RUVD . According to the IVS records, the applicant wrote two statements concerning the origin of injuries on his body, notably an abrasion on his chin and a bruise on his chest. One statement read that he had received the injuries “before his admission to the IVS”, and the other that he had received the injuries “on 14 September on Sovetskaya street in the village of Druzhkovo ”.

At about 7:30 p.m. on the same day the applicant was taken to investigation detention facility SIZO-52/1 where he was examined by a doctor who recorded the following injuries: a haemorrhage in the area of the chest, a haematoma on the shoulder, an abrasion on the chest and an oedema in the occipital region of the head. The applicant wrote an explanation to the head of the SIZO administration that he had been beaten up by police officers from the Kanavinskiy RUVD on 15 September 2007 and requested that an inquiry be carried out.

In November 2007 two police officers visited the applicant in SIZO-52/1 and demanded him under threats that he confess to the murder of K. The applicant wrote his confession.

The applicant subsequently retracted his confession. Criminal proceedings against him on the murder charges are pending.

B . Inquiry into the alleged ill-treatment

1. Investigation Committee ’ s refusal to open criminal proceedings

The applicant lodged complaints of his ill-treatment in police custody with the prosecutor ’ s office of Nizhniy Novgorod region and Privolzhskiy federal circuit. An inquiry into his allegations was carried out under Articles 144 and 145 of the Code of Criminal Procedure by the Kanavinskiy Investigation Committee. On 3 October 2007 a decision not to bring criminal proceedings was taken. It was quashed on 8 April 2008 by the head of the Kanavinskiy Investigation Committee. The next decision refusing criminal prosecution in respect of the applicant ’ s complaint was taken on 17 April 2008 and quashed on 27 May 2008. The last decision to refuse criminal prosecution in the absence of a criminal event was taken on 2 June 2008 under Article 24 § 1 (1) of the Code of Criminal Procedure. In particular, it noted the applicant ’ s statement on his admission to the IVS that he had received the abrasion on his chin and the bruise on his chest on 14 September 2007 in the village of Druzhkovo .

2. Domestic courts ’ review of the refusal to open criminal proceedings under Article 125 of the Code of Criminal Procedure

The applicant appealed against the decision of 2 June 2008. On 3 October 2008 judge of the Nizhniy Novgorod Kanavinskiy District Court found that the appeal could not be examined by virtue of Article 125 of the Code of Criminal Procedure because it should be examined at the hearing of the applicant ’ s case which had been referred for trial and was now pending before the District Court.

On 1 December 2008 the Nizhniy Novgorod Regional Court examined the applicant ’ s appeal against the first instance court ’ s decision, quashed the decision and terminated the proceedings on the ground that the examination of the applicant ’ s appeal against the investigator ’ s decision in a proceeding separate from the applicant ’ s trial could have prejudiced the legal assessment of the applicant ’ s confession as evidence. Such assessment should be done by a judge at the hearing of the applicant ’ s criminal case. Under paragraph 3 of Article 29 of the Code of Criminal Procedure, a judge had a power to examine, in the course of proceedings preceding a trial, appeals against investigators ’ or prosecutors ’ acts or decisions only in cases and in the way prescribed by Article 125 of the Code.

3. Medical experts ’ opinions

The applicant ’ s legal representative – NGO The Committee Against Torture – solicited the following medical experts ’ opinions on the basis of the description of the applicant ’ s injuries, as recorded in SIZO 52/1 on 15 September 2007.

Doctor M. stated on 16 February 2009 that the oedema in the occipital region of the head could have been caused from blows by hard objects and that it was not excluded that the injuries had been caused on 14 or 15 September 2007.

Forensic medical expert Y. from Nizhniy Novgorod Regional Forensic Medical Bureau in a report of 13 March 2009 concluded that the haemorrhage in the area of the chest, the haematoma on the left shoulder and the abrasion on the chest could have been inflicted by blunt objects on 14 or 15 September 2007.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was subjected to inhuman or degrading treatment by police officers in order to make him confess to a crime . He also complains that there was no effective investigation into his complaints in breach of Articles 3 and 13 of the Convention.

QUESTIONS TO THE PARTIES

1. What were the legal grounds and reasons for the applicant ’ s apprehension on 14 September 2007 and for his subsequent detention until the moment of his formal apprehension as a suspect ? What were the exact times that the applicant was apprehended by police on 14 September 2007 and brought to the police station?

2. Was the applicant subjected to torture, inhuman or degrading treatment or punishment by police officers on 14 and 15 September 2007, in b reach of Article 3 of the Convention?

In answering that question the Government are requested to address, inter alia , the following points:

(a) Once in the hands of the police:

(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 third party (family member, friend, consulate, 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) What activities involving the applicant were conducted at the Kanavinskiy RUVD by the Ministry of the Interior organs ( органы Министерства Внутренних Дел ) on 14 and 15 September 2007 and in November 2007, when the police officers allegedly visited the applicant in SIZO-52/1 and took a confession to the murder from him, and during what periods? If they were carried out at night, was this lawful? What was the applicant ’ s procedural status? Where was the applicant held on 14 and 15 September 2007? What confessions and/or statements ( явк а с повинной ; показания ) did the applicant give on 14 and 15 September 2007 and in November 2007 during the visits by the police officers ( please submit relevant documents, in particular, written, audio or video records containing the applicant ’ s statements/confessions )? Was the applicant given access to a lawyer before and during each such activity?

(c) What activities involving the applicant were conducted on 14 and 15 September 2007 by the investigating authority responsible for investigating the murder case in which the applicant was a suspect, and during what periods? If they were carried out at night, was this lawful? What was the applicant ’ s procedural status? What confessions and/or statements ( явк а с повинной ; показания ) did the applicant give during that period ( please submit relevant documents, in particular, written, audio or video records containing the applicant ’ s statements/confessions )? Was the applicant given access to a lawyer before and during each such activity?

(d) Who examined the applicant and recorded his injuries at the IVS at the Kanavinskiy RUVD and at SIZO-52/1 on 15 September 2007 and were these examinations conducted out of the hearing and out of sight of police officers?

(e) Did the police officers who apprehended the applicant and took him to the police station act lawfully, given that they allegedly pushed the applicant to the floor and handcuffed him?

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), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention? In particular:

(a) Were the investigators (investigating authority), who carried out the inquiry into the applicant ’ s allegations of police ill ‑ treatment, independent of the investigators (investigating authority) who were responsible for investigating the criminal case against the applicant?

(b) Which police officers from which police department(s) were involved in the inquiry into the applicant ’ s complaint of police ill ‑ treatment? What operational and other activities did they carry out in the course of the above inquiry ? Were they independent of the police department and those of its officers who were allegedly implicated in the applicant ’ s ill-treatment?

4. In answering each of the above questions the Government are requested to submit the relevant documents in support of their information, and, in particular, the following:

(a) the records of the applicant ’ s apprehension as a suspect under Articles 91 and 92 of the Code;

(b) the relevant extracts in respect of the applicant from the Kanavinskiy RUVD visitors ’ register and/or any other official documents concerning the applicant ’ s presence at the Kanavinskiy RUVD on 14 and 15 September 2007;

(c) the records of the applicant ’ s interrogation as a suspect by an investigator of the Kanavinskiy Investigation Committee;

(d) the relevant extracts from the SIZO-52/1 visitors ’ register for November 2007 in respect of the police officers ’ visits to the applicant;

(e) the records of the applicant ’ s confession ( явка с повинной ) and the records of the applicant ’ s refusal from his confession;

(f) information about the status and outcome of the criminal proceedings against the applicant, a first-instance and an appeal courts ’ judgments, the applicant ’ s statement of appeal and an extract from the court hearing records concerning the domestic courts ’ assessment of the applicant ’ s confession (self ‑ incriminating statements) and the statements by Mr Kostin incriminating the applicant.

(g) the applicant ’ s photographs taken upon his apprehension by police with an indication of the time when they were taken.

(h) typed transcription of letter no. 43- пр -CO-08 of 17.04.08 of SIZO ‑ 52/1 (document no. 16 in the list of documents enclosed to the application form ) as the letter is partly unreadable and a copy of letter no. 121 п -07 of 29.04.08 of the Kanavinskiy district prosecutor ’ s office of Nizhniy Novgorod (a copy submitted by the applicant , mentioned as document no. 28 in the list of documents enclosed to the application form , is of poor quality) .

FIRST SECTION

Application no. 57519/09 RAZZAKOV c. Russie

Application no. 46956/09 LYAPIN c. Russie

Application no. 38887/09 FARTUSHIN c. Russie

Application no. 31316/09 GORSHCHUK c. Russie

Application no. 4722/09 TURBYLEV c. Russie

Application no. 52796/08 OVAKIMYAN c. Russie

Application no. 2281/06 ANDREYEV c. Russie

GENERAL QUESTIONS TO THE PARTIES

In the light of the issues raised as a result of alleged ill-treatment by police in seven communicated cases ( Razzakov (no. 57519/09), Lyapin (no. 46956/09), Fartushin (38887/09), Gorshchuk (31316/09), Turbylev (4722/09), Ovakimyan (52796/08) and Andreyev (2281/06)) and in view, in particular, of such fundamental guarantees to detained persons as the right to have one ’ s deprivation of liberty officially recorded, the possibility of informing a third party about one ’ s detention, access to a lawyer and access to a doctor, which should apply from the very outset of deprivation of liberty and of which they should be expressly informed without delay (see, among other authorities, Menesheva v. Russia , no. 59261/00, § 87, ECHR 2006 ‑ III; SalmanoÄŸlu and PolattaÅŸ v. Turkey , no. 15828/03, § 79, 17 March 2009 ; Algür v. Turkey , no. 32574/96, § 44, 22 October 2002; Salduz v. Turkey [GC], no. 36391/02, § 54, 27 November 2008), the Government are requested to provide information about the relevant domestic law and practice on the points below, demonstrating their state of development at the time of the events in each case, that is from 2005 to 2009 (including the Constitution, laws, by-laws ( подзаконные акты ), service instructions ( служебные инструкции ), practice directions, decisions or other acts of the Supreme Court of the Russian Federation and decisions and other acts of the Constitutional Court of the Russian Federation):

(1 ) What is the maximum duration between the moment of an individual ’ s actual apprehension ( фактическое задержание ) in all possible cases of deprivation of liberty in criminal and administrative proceedings , and:

(i) his or her contact with a third party (family member, friend, consulate, etc.) in order to inform [them] about his detention and his location?

(ii) access to a lawyer?

(iii) access to a doctor?

(iv) notification of the above-mentioned rights?

How are these guarantees (to inform a third party about one ’ s detention, access to a lawyer and to a doctor) regulated by domestic law? Does a person in the above-mentioned situations have a right to access to a doctor before, during and after admission to an IVS ( изолятор временного содержания ) or SIZO ( следственный изолятор )? Do medical examinations at police premises and the IVS or SIZO have to be conducted out of the hearing and out of sight of police officers and other non-medical staff?

(2 ) Besides the formal recording of various forms of deprivation of liberty in accordance with the rules of criminal and administrative procedure, do the police keep custody records in respect of each person who has been apprehended or otherwise deprived of liberty, with information, inter alia , about the time of the actual apprehension and arrival at a police station, the time and nature of actions taken in his or her respect and the police officers responsible for conducting such actions?

(3 ) Do the records of apprehension ( протокол задержания ) of a suspect have to contain information about the actual apprehension ( фактическое задержание ) of a suspect prior to his or her being brought before an investigator or other competent authority, such as the exact time, place, legal basis and reasons (reference is made to Article 92 of the Code of Criminal Procedure and Appendix 12 to the Code)? Which document records the time when the suspect is brought before an investigator or other competent authority and from which the three-hour ti me-limit referred to in Article 92 starts to run?

(4 ) What behaviour should be expected from police officers carrying out an apprehension, or bringing a suspect before a competent authority or conveying him or her to a competent authority in administrative and criminal proceedings ( задержание, доставление, привод ) to? In particular, do they have to wear uniform, use marked cars, produce their service badges and explain the legal basis and reasons for their actions? How is the use of force and handcuffs regulated? What are the guarantees against abuses by police officers in such situations?

(5 ) In accordance with the rules of criminal procedure, what activities can police officers carry out with the participation of a person after his or her actual apprehension? Can they question him or her or take explanations about an offence prior to questioning by an investigator? Can they take a confession to a crime?

(6 ) Do district police departments have cells for persons detained in criminal and administrative proceedings? Are they equipped for overnight detention? Are interrogations and other procedural activities with detained persons carried out in offices belonging to police officers or in special rooms for those activities? Is audio or video recording used by police officers and investigators for questioning and other procedural activities?

(7 ) What are the requirements, guarantees and procedure for taking a confession to a crime ( явка с повинной ) under the Code of Criminal Procedure, in particular Article 142 of the Code and Annex 3 to the Code? Is the person informed of any rights and legal consequences and given access to a lawyer before a confession is taken? Can a confession be taken from any person irrespective of his or her procedural status, for example, a witness or any other person who is not formally declared a suspect or an accused, and, if so, does Article 75 § 2 (1) of the Code (which qualifies as inadmissible evidence the statements made by a suspect or an accused in the absence of a lawyer in pre-trial proceedings and not confirmed in court) apply to confessions taken from persons other than a suspect or an accused? What is the court practice with regard to the applica tion of Article 75 § 2 (1) of the Code of Criminal Procedure (please submit a representative review of court decisions in individual cases)?

(8 ) As regards the competent authorities ’ reaction to complaints about police ill-treatment, what criteria do they use when deciding whether to institute criminal proceedings and carry out an investigation? How is Article 140 § 2 of the Code of Criminal Procedure (setting out the ground for the institution of criminal proceedings) interpreted by the domestic courts, the Ministry of the Interior and the investigating authority at the prosecutor ’ s office as regards such complaints?

(9 ) As regards an inquiry under Article 144 of the Code of Criminal Procedure:

(i) Which of the investigation methods employed for a preliminary investigation under Articles 150-226 of the Code can be employed in the course of such an inquiry?

(ii) What other methods can be employed?

(iii) Are persons from whom explanations ( объяснения ) are taken liable for false statements or refusal to testify?

(10 ) Which investigating authority and police department (which carries out operational, search and other procedural activities) is required to conduct an inquiry under Article 144 of the Code of Criminal Procedure (prior to a decision on whether to open criminal proceedings) and preliminary investigation (after criminal proceedings are brought) into allegations of police ill-treatment? Are they independent of the investigating authority and the police departments implicated in the alleged ill-treatment?