Application no. 52796/08
by Suren Avetikovich OVAKIMYAN
lodged on 22 October 2008
STATEMENT OF FACTS
The applicant, Mr Suren Avetikovich Ovakimyan, is a Russian national who was born in 1981 and lives in Yoshkar-Ola. He is represented before the Court by 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
The criminal investigation department of the Ministry of the Interior of Mariy-El (управление уголовного розыска Министерства внутренних дел Республики Марий Эл) carried out operational and search activities in connection with the disappearance of Mr K. on 28 August 2007. They established that the applicant had been involved in K.’s disappearance.
On 7 September 2007 they apprehended the applicant. According to the applicant, he was apprehended at about 3 p.m. in the street by men in plain clothes who pushed him to the asphalt, handcuffed him and put him in an unmarked car without explaining who they were, where they were taking him and why. A plastic bag was put on his head, he was taken to a place in the outskirts of Yoshkar-Ola and was beaten up and administered electric shocks. He was then taken to the Central police station of Yoshkar Ola where he refused to give statements without a lawyer. Lawyer K. arrived and advised him to keep silence relying on his constitutional right not to give self-incriminating statements. The applicant did so.
At 8:55 p.m. he was formally apprehended as a suspect and at 10:45p.m. he was placed in IVS, a temporary detention facility at the Ministry of the Interior of Mariy-El. According to the IVS records, the applicant had a swelling and a haematoma on his forehead, haematomas on his chest, right shoulder and right shoulder-blade and abrasions on his back.
On 8 September 2007 the applicant was taken to investigator G. at the prosecutor’s office. He was demanded to confess to the murder of K. When he refused, he was put in a car and taken out of the town by three policemen. He was beaten up, strangled, threatened with a revolver, then thrown in a pit and threatened to be buried alive. When the applicant was brought back to the investigator he signed his confession. He was then placed again in the IVS.
On 9 September 2007 at 5:30 pm the applicant was placed in investigation detention facility IZ-12/1. On his admission he had a swelling and a haematoma on his forehead, haematomas on his chest, right shoulder and right shoulder-blade, abrasions on his back and a bruise on his neck.
B. Inquiry into the alleged ill-treatment
1. Investigation Committee’s refusal to open criminal proceedings
On 17 October 2007 the applicant complained to the prosecutor’s office of the Republic of Mariy-El about his ill-treatment and requested prosecution of the police officers and investigator G. An inquiry into his allegations was carried out under Article 144 of the Code of Criminal Procedure by the Investigation Department of the Investigation Committee at the prosecutor’s office of Mariy-El (“Mariy-El Investigation Committee”). On 2 November 2007 an investigator of the Mariy El Investigation Committee refused to bring criminal proceedings on the applicant’s complaint. On 8 November 2007 that decision was quashed by the deputy head of the Mariy-El Investigation Committee. The investigator’s subsequent numerous decisions to refuse prosecution were all quashed by the Mariy-El Investigation Committee, some of them following the findings by the prosecutor’s office or the Yoshkar-Ola Town Court, under Article 125 of the Code of Criminal Procedure (decisions of 3March 2008 and 29 May 2008), that the decisions were unlawful or unfounded.
On 29 June 2008 an investigator of the Mariy-El Investigation Committee took the last decision not to initiate criminal proceedings in the absence of a criminal event under Article 24 § 1 (1) of the Code of Criminal Procedure. The decision referred, in particular, to statements by the applicant, his co-accused K., police officers involved in his apprehension and operative work in K.’s murder case, investigators in charge of the murder case, and other witnesses; records of inspection of the pit on a site adjacent to a road leading from Yoshkar-Ola to the settlement of Poganur which the police officers had allegedly dug when threatening to bury the applicant alive; and a forensic medical examination report of 19December 2007, according to which it was impossible to establish the time of infliction of the applicant’s injuries – an abrasion on the back, bruises in the right infraclavicular region and on the front surface of the neck – which did not entail any health damage. The applicant’s allegations of ill-treatment were found to have been untrue on the basis of the materials of the inquiry. The injuries which were found on him upon his admission to the IVS could have been inflicted by the victim during a fight with the applicant in a car shortly before the murder, as was witnessed by the applicant’s accomplice Mr K. As regards the new injury which was recorded on his admission to the SIZO, notably the bruise on his neck, it could have been self-inflicted.
2. Domestic court’s refusal to examine the applicant’s appeal under Article 125 of the Code of Criminal Procedure
The applicant’s appeal against the decision of 29 June 2008 under Article 125 of the Code of Criminal Procedure was granted by Judge N. of Yoshkar Ola Town Court on 31 July 2008 who found that the investigator had disregarded previous instructions by the head of the Investigation Committee of Mariy-El and Yoshkar-Ola Town Court to make a legal assessment of contradictory statements by the applicant and two other witnesses, who alleged that the applicant had been violently apprehended at about 3p.m. in the street, and by police officers, who alleged that the applicant had been apprehended with his consent at his home. The prosecutor’s office lodged an appeal. On 22 September 2008 Supreme Court of Mariy El quashed the first instance court’s decision and terminated the proceedings. It held that the criminal case against the applicant had on 15 August 2008 been transferred to the Supreme Court of Mariy-El for trial during which it would be open for the applicant to challenge the lawfulness of investigatory measures including his apprehension.
C. The applicant’s trial. Domestic courts’ examination of the applicant’s allegations of ill-treatment by police and its scope.
K.’s murder case was heard by the Supreme Court of Mariy-El. In its judgment of 5 November 2008 it established that the applicant had murdered K. by strangling after misappropriating his car. It found the applicant guilty of murder and aggravated robbery and sentenced him to sixteen years’ imprisonment. Two other persons Mr K. and Mr T. were convicted of aggravated robbery and sentenced to three and a half and three years’ imprisonment respectively, conditionally in the last case. The finding of the applicant’s guilt was based inter alia on statements by K. and T. his accomplices in the robbery and eyewitnesses to the murder. As regards the applicant’s allegations of ill-treatment in police custody, the trial court heard police officers involved in the applicant’s apprehension and operative work in the case, investigators in charge of the murder case, and other witnesses and examined evidence collected in the course of the inquiry carried out by the Mariy-El Investigation Committee.
The trial court concluded that it was impossible to establish the circumstances in which the applicant had received his injuries. It held that it could examine allegations of unlawful investigative methods as long as admissibility of evidence was at issue, which was not the case here. It noted that the circumstances of infliction of the applicant’s injuries could be established by competent law enforcement authorities under Article144 of the Code of Criminal Procedure.
On an unspecified date the judgment came into force.
1. The applicant complains under Article 3 of the Convention that he had been tortured in police custody and that no effective investigation into his complaint was carried out.
2. He complains under Article 13 of the Convention in conjunction with Article 3 that the authorities failed to carry out effective investigation into his complaint of torture and that their refusal to institute criminal proceedings made it impossible for him to be granted victim status which could have entitled him to compensation.
3. The applicant complains that he was apprehended on 7September 2007 at 3p.m. in breach of Article 5 § 1 (c) because his apprehension was only recorded at 8:55 p.m., after his ill-treatment by police officers.
4. The applicant also complains that he had given statements, in particular the confession and the disclosure of a place where the victim’s body had been buried, without a lawyer’s advice as a result of the tortures by police officers. The trial court’s reliance on such evidence, regardless of its weight, rendered his trial unfair in breach of Article 6 §1 of the Convention.
QUESTIONS TO THE PARTIES
1. Was the applicant deprived of his liberty in breach of Article 5 §1 of the Convention? In particular, did the deprivation of liberty on 7September 2007 from the moment of his actual apprehension at 3 p.m. (according to the applicant) until the moment of his formal apprehension as a suspect at 8:55 p.m. (according to the Investigation Committee’s decision of 29June 2008), fall within paragraph (c) of this provision?
In answering that question the Government are requested to address, inter alia, the following points:
a) What were the legal grounds and reasons for the applicant’s apprehension on 7 September 2007 and for his subsequent detention until his formal apprehension as a suspect?
b) What was the exact time of:
(i) the applicant’s actual apprehension (фактическое задержание) by police,
(ii) his bringing to the police station, and
(iii) his formal apprehension as a suspect?
Where was the applicant held between each of the above moments and thereafter on 7, 8 and 9 September 2007? Please submit the applicant’s detailed custody records for that period hour by hour with precise information about the applicant’s location (including the relevant extracts from the register of persons brought to a police station, visitors’ records, etc.).
2. Was the applicant subjected to torture, inhuman or degrading treatment or punishment by police officers on 7 and 8 September 2007, in breach of Article3 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 informing 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 doctor 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 by the Zheleznodorozhniy ROVD on 7, 8 and 9 September 2007, 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 (явка 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?
(c) What activities involving the applicant were conducted on 7, 8 and 9 September 2007 by the investigating authority responsible for investigating the murder of Mr K. and during what period? If they were carried out at night, was this lawful? What was the applicant’s procedural status? What confessions and/or statements (явка 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) Did the police officers, who apprehended the applicant and brought him to the police station, act lawfully in that they allegedly were in plain clothes, did not introduce themselves, gave no explanation for the apprehension, pushed the applicant to the asphalt, handcuffed him and brought him to the police station in an unmarked car?
(e) Who carried out his examinations at the IVS on 7 and 8September 2007 and the SIZO on 9 September 2007? Were the applicant’s examinations conducted out of the hearing and out of the sight of police officers and other non-medical staff?
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 complaint of police ill treatment, independent of the investigators (investigating authority) who were responsible for investigating the criminal case against the applicant and, in particular, investigator Mr Golikov of the prosecutor’s office who had allegedly been involved in the ill-treatment? At which department of the prosecutor’s office did investigator Mr Golikov work at the material time?
(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. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 3, as required by Article 13 of the Convention? In particular, having regard to the fact that the investigating authority decided, under Article 24 § 1 (2) of the Code of Criminal Procedure, not to institute criminal proceedings on the applicant’s complaint of police ill treatment for the absence of a criminal event, was it open to the applicant to lodge a civil action against the State for compensation on account of the alleged police ill-treatment and, if so, was this available not only in theory but also in practice and would it have any reasonable prospects of success (see Chember v. Russia, no.7188/03, §§ 70-73, 3 July 2008)?
5. 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, and was he able to defend himself, as required by Article 6 § 3 (c) of the Convention, in view of the use in the applicant’s conviction of evidence which was allegedly obtained as a result of the applicant’s ill treatment by police in the absence of a lawyer, notably the applicant’s statements including his confession (явка с повинной) and the disclosure of a place where the victim’s body had been buried, for the applicant’s conviction (please submit a copy of the applicant’s statements in question)? Did the applicant request at the trial that such evidence should be declared inadmissible? If so, what was the ground for such 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)?
6. 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) documents concerning the applicant’s state of health and his injuries on 7-9 September 2007, in particular, upon his admission to the IVS on 7 September 2007 (a copy submitted by the applicant, mentioned as document no. 1 in the list of documents enclosed to the application form, is of poor quality) and 8September 2007 and to IZ-12/1 on 9 September 2007;
(b) documents concerning the applicant’s forensic medical examinations, in particular the report of 19 December 2007;
(c) decision of Yoshkar-Ola Town Court of 29 May 2008 (referred to in the same court’s decision of 31 July 2008);
(d) investigating authority’s decisions on the applicant’s complaint about the alleged ill-treatment and decisions to quash them (apart from those decisions which were submitted to the Court by the applicant before communication);
(e) application lodged by the applicant in which he requested that criminal proceedings should be brought in connection with alleged forgery of his confession and other documents referred to on page19 of the Mariy El Supreme Court’s judgment of 5 November 2008 and the results of the authorities’ inquiry, in particular, the investigator’s decision of 16 July 2008 not to open criminal proceedings;
(f) the applicant’s statement of appeal against the judgment of Mariy El Supreme Court of 5 November 2008 and the appeal court’s judgment;
(g) the records of the applicant’s apprehension as a suspect.
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; Salmanoğlu and Polattaş v. Turkey, no.15828/03, § 79, 17March 2009; Algür v. Turkey, no. 32574/96, § 44, 22October 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 Article92 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 time-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 Annex3 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 Article75 § 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 application 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?