Nikolay Yevgenyevich DEVYATKIN against Russia
and 6 other applications
STATEMENT OF FACTS
The applicants are Russian nationals. The facts of the cases, as submitted by the applicants, may be summarised as follows.
3. Application no. 18796/08 lodged on 21 December 2007 by Ruslan Anatolyevich LEBEDEV who was born on 20 August 1987 and lives in Novyy Toryal, Mariy El Republic, represented by Committee Against Torture, a non-governmental organisation based in Nizhniy Novgorod.
1. Alleged ill-treatment by Mariy El Novyy Toryal police officers
(a) The applicant’s apprehension
On 31 March 2007 between 1 and 2 a.m. the applicant, who was 19 years’ old, was going home to the settlement of Novyy Toryal in a car with four other young men after a discotheque. Their car, which had no registration plate, was spotted and followed by a police car. When they stopped they were approached by five police officers, who, despite the fact that no one of them showed resistance, pushed them to the ground, handcuffed, punched and kicked them. One of them had run away. The others were taken to a police station in Novyy Toryal in a police car.
(b) Events at the Mariy El Novyy Toryal police department
At the police station of the Mariy El Republic Novyy Toryal district police department (отдел внутренних дел по Новоторъяльскому району Республики Марий Эл) they were requested to stand facing the wall in a corridor for about an hour and a half during which the beatings continued. Police officers MM S., M. and O., whose names the applicant knew as they resided in the same settlement, punched and kicked him many times on all parts of his body. He was taken to an office for questioning about the identity of the car driver and was requested to confess that he had stolen the car. He said that he did not know the driver and refused to confess. M. pulled him down to the floor by his hair, kicked him in his face, head and all body and then stepped on his face. O. and S. also kicked him. This lasted for about 15-20 minutes. After the questioning they released him. His mother called an ambulance and he and the other three young men were taken to hospital.
(c) The applicant’s injuries
The applicant was diagnosed with closed craniocerebral injury, brain contusion, haematomas on the back of the head and temples, right ear contusion, multiple abrasions on his neck, back, shoulder and torso, and contusion in the lumbar region. He was immediately hospitalised and stayed in hospital for in-patient treatment until 22 April 2007. He had, inter alia, a brain concussion, traumatic perforation of right eardrum and multiple abrasions and bruises, as described above.
2. Mariy El authorities’ response to the complaint of police ill treatment
(a) Mariy El Novyy Toryal prosecutor’s refusal to prosecute annulled three times
On 31 March 2007 the applicant’s mother complained to the Novyy Toryal police department about the applicant’s ill-treatment. She stated that he had medically attested injuries. Her application was transferred to the Novyy Toryal district prosecutor’s office.
On 10 April 2007, after a pre-investigation inquiry under Article 144 of the Code of Criminal Procedure (CCrP), the Novyy Toryal district prosecutor’s office (прокуратура Новоторъяльского района Республики Марий Эл) decided not to initiate criminal proceedings. That decision was annulled by the same prosecutor’s office and an additional pre-investigation inquiry was ordered. A similar decision was taken on 20 April 2007 and again annulled four days later. The applicant’s mother was not informed of any of the above decisions.
On 29 April 2007 the district prosecutor’s office issued a new decision refusing to open a criminal case and the applicant’s mother appealed against that refusal to the Novyy Toryal District Court under Article 125 of CCrP. On 23 July 2007 the District Court informed her that her appeal would not be examined since on 8 June 2007 a deputy prosecutor of Maryy El had annulled the district prosecutor’s decision and ordered an additional pre investigation inquiry.
(b) Refusal to prosecute upheld by courts
(i) Novyy Toryal district prosecutor
Then followed another decision of 22 June 2007 in which the district prosecutor’s office investigator found, inter alia, that the statements by the applicant and the other four young people, including the one who had fled the scene, about the events immediately before and after their apprehension were contradictory. Thus, three of them had stated that it was the applicant who had been driving the car, that he had not stopped when requested to do so by a traffic police officer and that instead he had accelerated the car and tried to escape. According to one of the teenagers, the applicant had not been beaten up in the corridor, but he heard the applicant shouting out in pain when he had been in an office with police officers. It follows from the investigator’s decision that all three persons who had been apprehended together with the applicant had stated that they had received blows and kicks from the police officers during their apprehension and also at the police station. As to explanations received from police officers M., S. and four others who participated in the events in question, they had stated that physical force had been applied strictly in accordance with the Militia Act and other regulations for the apprehension of the four young men who, being in a state of inebriation, had behaved aggressively. Police officer O. had denied that any physical force had been applied. Three other police officers, who were present at the police station, had stated that they had not seen that any physical force had been applied. Forensic medical examination established injuries on the applicant, as described above, and bruises and brain concussion as regards the other three persons.
The investigator concluded that the applicant who was driving the car had committed several administrative offences by disobeying traffic police officer O.’s orders to stop and instead accelerating the car which had no registration plate and trying to escape. The applicant and the others had been apprehended and taken to the Novyy Toryal police station in accordance with the Militia Act and the Code of Administrative Offences. During the apprehension police officers, including traffic police officer O., deputy head of the Novyy Toryal district police department M. and S. had applied physical force to the applicant and the other three persons in accordance with Sections 12 and 13 of the Militia Act that resulted in the injuries found on them by the forensic medical expert. No administrative proceedings had been brought against the applicant because of negligence on the part of the police officers.
The investigator held that no criminal proceedings should be brought in view of the absence of corpus delicti in the actions of police officers MM O., M., S. and three others, as provided by Article 24 § 1 (2) of CCrP.
(ii) Novyy Toryal District Court
The applicant appealed against the investigator’s decision of 22 June 2007 to the Novyy Toryal District Court. On 14 August 2007 Judge D. examined the appeal, by way of review under Article 125 of CCrP, in the presence of the applicant, his representatives and the investigator. The Judge found that the decision had been based on objectively established facts and that no additional inquiry was needed. In interpreting Article 140 (paragraph 2) of CCrP and Article 14 (paragraph 1) of the Criminal Code the Judge stated that for criminal proceedings to be initiated it was necessary at least to establish the fact of alleged act, its social danger and a person’s guilt, taking into account that there should be sufficient information indicative of elements of crime.
According to the investigator’s assessment, physical coercion had been applied to the applicant by the police officers in accordance with Sections 12 and 13 of the Militia Act which authorised use of physical force for suppression of crimes and administrative offences, apprehension of offenders and for overcoming resistance to lawful demands. The fact that the applicant and his companions had committed administrative offences and resisted to the police officers’ lawful demands was obvious. In particular, the Judge considered it established, based on the police officers’ explanations, that the applicant and his companions had ignored O.’s demand to proceed to the police station. Instead they had acted aggressively approaching him and shouting at him. When the other police officers had arrived at the scene the applicant and the others had attempted to run away and to break loose. The Judge further stated that the use of violence against the applicant at the police premises had not been established. The Judge found no grounds to declare the investigator’s decision unlawful or ill founded and rejected the appeal.
(iii) Mariy El Supreme Court
The applicant’s appeal against the District Court’s decision was rejected by the Mariy El Republic Supreme Court on 26 September 2007 with a brief reasoning that the District Court’s decision was well-founded.
3. Complaint to the Maryy El Ministry of the Interior
The applicant’s mother also complained of her son’s beatings to the Mariy El Republic Ministry of the Interior. On 30 May 2007 she received a reply stating that no breaches in the police officers’ acts had been established as a result of an inquiry carried out by the Ministry of the Interior.
4. NGOs’ findings
On 20 May 2007 the Yoshkar-Ola human rights NGO Chelovek i zakon and the Nizhniy Novgorod NGO Committee Against Torture issued a report as a result of their inquiry carried out at the applicant’s request. They considered that the applicant had an arguable claim of police ill-treatment.
5. Other information
On two occasions the applicant’s representative from the NGO Committee Against Torture was refused access to the materials of the inquiry into the applicant’s mother’s complaint about the police ill treatment. His appeals were rejected by domestic courts on the grounds that he had no proper authority to represent the applicant (Mariy El Republic Supreme Court’s decision of 4 July 2007) and that his request for access to the materials should have been made in writing (Mariy El Republic Supreme Court’s decision of 19 December 2007).
The applicant complains under Article 3 of the Convention that he had been tortured by the police officers at the Novyy Toryal police station to make him confess that he had stolen the car. Even assuming that his injuries had been received at the time of his apprehension, violence used by the police officers was disproportionate. He complains under the same Convention provision that no effective investigation into his complaints was carried out.
He complains under Article 13 of the Convention in conjunction with Article 3 that the authorities failed to carry out effective investigation into his complaints and that their refusal to institute criminal proceedings made it impossible for him to be granted victim status which could have enabled him to claim civil law compensation.
The applicant further complains under Article 5 of the Convention of his arbitrary and unlawful detention.
He also complains under Article 6 § 1 of the Convention that the domestic courts had refused to examine his representative’s complaint concerning access to the materials of the inquiry into the alleged police ill treatment and that the refusal to grant him access to those materials violated Article 10 of the Convention.
1. What was the legal ground and reasons for the police:
(a) to stop the applicant,
(b) to take him to the police station, and
(c) to keep him at the police station for the whole duration of his stay there?
The Government are invited to submit information/documents relevant to each of the above acts recording, inter alia, the time frame (from the moment the applicant was stopped by the police until the moment of his release), place, State authority, the police officers’ identity, activities conducted in respect of the applicant, legal grounds and reasons, the applicant’s procedural status, confessions and/or statements received from him, including the police station records and documents concerning administrative proceedings against the applicant including appeal courts’ decisions, if any.
2. Did the police act lawfully (40384/06, 45044/06 and 18796/08: in the absence of administrative proceedings against the applicant?
3. Once in the hands of the police:
(a) Was the applicant informed of his rights? If so, when, and what rights was he informed about?
(b) Was he given the possibility of informing his family about his apprehension and his location and, if so, when?
(c) Was he given access to a lawyer and, if so, when?
(d) 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?
4. What provision from (a) to (f) of Article 5 § 1 of the Convention did the applicant’s deprivation of liberty fall within? Was the applicant deprived of his liberty in breach of Article 5 § 1?
5. Was the applicant subjected to torture, inhuman or degrading treatment or punishment by the police officers, in breach of Article 3 of the Convention?
6. 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)? In particular:
(a) 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 effective, thorough and expeditious investigation?
(b) 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). Did the domestic authorities discharge such a duty?
(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, independent of the police officers who had allegedly subjected the applicant to ill-treatment?
In all seven applications 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 applicants’ complaints of police ill-treatment, as well as courts’ decisions on the applicants’ complaints, medical certificates and medical experts’ reports and other relevant documents.
7. 18796/08, 49158/09 and 36295/10: It was stated in the investigating authority’s decisions taken in the course of the pre-investigation inquiry under Article 144-145 of the Code of Criminal Procedure or in the administrative proceedings against the applicants that the applicants had been in a state of alcoholic inebriation at the time of their apprehension by the police. On what evidence were such statements based?
date of birth
Applicant’s age at the time of alleged ill-treatment
Complaint of police ill-treatment examined by / result
Refusal to prosecute police officers upheld by
Ruslan Anatolyevich LEBEDEV
Committee Against Torture, Nizhniy Novgorod
Novyy Toryal ROVD
19 years’ old
Novyy Toryal prosecutor / refusal to prosecute police officers
- Novyy Toryal District Court
- Mariy El Supreme Court