SERGEY IVANOV v. RUSSIA - 14416/06 (Judgment : Article 3 - Prohibition of torture : Third Section) [2018] ECHR 392 (15 May 2018)

In the case of Sergey Ivanov v. Russia,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Helena Jäderblom, President,
Branko Lubarda,
Helen Keller,
Dmitry Dedov,
Pere Pastor Vilanova,
Alena Poláčková,
María Elósegui, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 10 April 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 14416/06) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Russian national, Mr Sergey Vladimirovich Ivanov ("the applicant"), on 17 February 2006.

2. The applicant was represented by Mr D.V. Mosenkov, a lawyer practising in Nizhniy Novgorod. The Russian Government ("the Government") were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3. The applicant alleged, in particular, that he had been subjected to ill-�treatment by the police and convicted prisoners acting on their instructions, that no effective investigation into his complaints had been carried out, and that confession statements obtained as a result of his ill-�treatment had been used as evidence for his conviction.

4. On 14 March 2013 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. The applicant's alleged ill-treatment

5. The applicant was born in 1966 and lived in Nizhniy Novgorod. He is currently serving a prison sentence in the Nizhniy Novgorod region.

6. On 24 April 2004 a robbery took place at the offices of a company in Nizhniy Novgorod. On the same day the Nizhegorodskiy district police department of Nizhniy Novgorod opened a criminal case into the robbery. The Operational-Search Division of the Chief Directorate of the Ministry of the Interior of the Russian Federation in the Privolzhskiy Federal Circuit (Оперативно-розыскное бюро ГУ МВД РФ по Приволжскому федеральному округу - "the ORB police unit", "the police" or "police officers") carried out operational-search activities in the case, including phone tapping. The results were declassified and transferred to S., an investigator from the investigation division of the Nizhniy Novgorod regional police department (Следственная часть Главного следственного управления при ГУВД Нижегородской области) in charge of the robbery case, on 2 June 2004. According to the police report, the robbery was committed by the applicant and five other individuals. On 4 June 2004 S. requested a court order to search the applicant's flat, on the grounds that he was suspected of committing the robbery.

7. On 7 June 2004 Judge D. of the Nizhegorodskoy District Court of Nizhniy Novgorod granted the investigator's request and ordered that the applicant's flat be searched, referring to the applicant as a suspect.

1. The applicant's alleged ill-treatment on 8 and 22 June 2004

8. From 6.18 to 7.56 a.m. on 8 June 2004 police officers searched the applicant's flat in his presence. They then took him to the offices of the ORB police unit in Nizhniy Novgorod ("the police station").

9. The applicant's account of the subsequent events is as follows. His request for access to a lawyer was ignored. The police demanded that he confess to the robbery. He refused. Three of the officers who had arrested him were joined by other police officers, including K., Pr. and S. They subjected him to various forms of violence, such as punching and kicking him, blocking his airway by covering his mouth and nose with a rag, and tying him up in a painful position. They made him sit on the floor cross-�legged, with his hands cuffed behind his back and a bag put over his head so that he could not see anything. His feet were tied with a rope, which was connected to his neck and the handcuffs. The police officers pulled the rope to contort the applicant into a painful position, then sat on his back and jumped on him. When the applicant lost consciousness they poured water on him. He heard the officers tell each other not to leave any marks on his body. The investigator entered the room several times and demanded that the applicant write a confession.

10. According to the applicant, his ill-treatment lasted for several hours until he wrote a confession statement as requested.

11. According to the police records, the applicant confessed to committing the robbery with three other individuals at 9.30 a.m. on 8 June 2004. His confession was recorded in the form of a voluntary "statement of surrender and confession" (явка с повинной) by operational officer P. in room no. 329. The record stated that at 9.30 a.m. on 8 June 2004 the applicant had turned himself in to the police and reported that he had committed the crime.

12. According to a record of the applicant's arrest as a suspect in the robbery case, drawn up by S., the applicant was arrested at 9.40 a.m. on 8 June 2004, and the record was drawn up at the same time. Between 5.05 and 5.30 p.m. he was questioned as a suspect in the presence of a lawyer appointed by S. The applicant refused to give statements, relying on his constitutional right not to incriminate himself. He was then placed in the temporary detention centre of the Nizhniy Novgorod regional police department.

13. On 9 June 2004 the applicant was brought before Judge D. of the Nizhegorodskoy District Court, who granted the investigator's request for the applicant to be remanded in custody. According to the applicant, at the hearing in the presence of a lawyer appointed by his family, he complained to the judge that he had been ill-treated by police officers and had signed a confession statement as a result, but the judge did not take any action.

14. According to the applicant, after the court hearing he was not placed in a remand centre as was normal practice. He was instead detained in the temporary detention centre of the Privolzhskiy Federal Circuit police department for five days, before being placed in a remand centre, SIZO-�1. According to the Government, the applicant was held in SIZO-1 from 9 June 2004.

15. On 15 June 2004 the applicant was charged with robbery and questioned as an accused by S. in the presence of his lawyer. The applicant pleaded his innocence and again refused to give statements.

16. On 22 June 2004 the applicant was taken from SIZO-1 to the police station. According to him, police officers, in particular Ch., K., P. and Pr., again subjected him to ill-treatment to force him to give confession statements.

17. On 24 June 2004 the applicant, through his lawyer, lodged complaints with the head of the remand centre, the Nizhniy Novgorod regional prosecutor, the Prosecutor General's Office and the Presidential Human Rights Committee. He described suffering acts of violence at the hands of the police officers on 8 and 22 June 2004 (see paragraphs 9 and 16 above). He requested that action be taken and that he be placed under protection, adding that he could identify the police officers concerned. He stated that as a result of the violence he had confessed to a crime which he had never committed in a "statement of surrender and confession" which had been dictated to him by the police officers and S.

2. The applicant's alleged ill-treatment on 28 June 2004

18. The applicant's account of events on 28 June 2004 is as follows. On 28 June 2004 the applicant was taken from SIZO-1 to the police station, where he was again subjected to ill-treatment and asked to give confession statements. Police officers, in particular Ch., K., P. and Pr., punched and kicked him and tied him up in painful positions. Both his legs were tied with a rope and pulled apart. As on the previous occasion on 22 June 2004, no investigative activities were carried out with the applicant.

19. On 29 June 2004 the applicant asked a doctor at the remand centre to record the injuries allegedly inflicted on him the previous day, notably contusions to his chest which made it difficult for him to breathe and abrasions. At 11.20 a.m. the doctor, Ch., recorded circular abrasions on the lower third of both shins with a brown "wet" surface 1.5 to 2 centimetres wide. The doctor concluded that the injuries had been inflicted the previous day. The injuries were reported to the head of SIZO-1.

20. On the same day the applicant, who had received no response to his previous complaint, lodged another complaint with the head of the remand centre stating that he had been beaten up at the police station on 28 June 2004, as a result of which he had sustained contusions to his ribcage and abrasions. He asked for an investigation into the incident and to be given a full medical examination. He stated that despite the severe pain in his chest the medical staff of the remand centre had refused to give him a proper medical examination. He asked the head of the remand centre to stop taking him to the police and to instead conduct any investigative activities at the remand centre in his lawyer's presence.

21. On 30 June 2004 the applicant sent a second complaint to the Nizhniy Novgorod regional prosecutor, complaining that on 28 June 2004, in a room at the police station with the sign "nos. 326-331" on the door, police officers had beaten him up for several hours to force him to confess to crimes which he had not committed. Upon his return to the remand centre he had asked the medical staff to record his injuries. The applicant asked for the police officers to be prosecuted and stated that he could identify them.

3. The applicant's alleged ill-treatment during his detention in correctional colony IK-14 in July-November 2004

22. On 13 July 2004 a police officer, M., reported to the head of division no. 3 of the ORB police unit, which provided "operational support" in the applicant's criminal case, that three of the five people detained in the case had confessed to the robbery and had been cooperating with the investigation by uncovering further evidence of criminal activity by the group. According to operational information, the applicant had attempted to intimidate the co-�accused held in the same remand centre who had started cooperating with the investigating authority, thereby making them fear for their lives and health and hampering the investigation. The report recommended that the applicant be transferred to correctional colony IK-�14.

23. On 14 July 2004 S. ordered that the applicant be transferred to a unit functioning as a remand centre at IK-14 for the same reasons as those stated in the police report (see paragraph 22 above).

24. It appears that the applicant was transferred there on 21 July 2004.

25. The applicant's account of the subsequent events is as follows. He was placed in a punishment cell for eighteen days. During this time he was beaten unconscious, to make him confess to a series of armed robberies, by several convicted prisoners acting on the police's instructions and with the connivance of the administration of IK-14. They punched and kicked him, hit him with a rubber truncheon and hung him upside down. Subsequently, for some time he was detained together with convicted prisoners. He was repeatedly visited by the police, in particular officers Ch. and P., who demanded that he confess to a series of robberies and beat him up when he refused. They also asked some of the convicts, in particular S.P. and A.V., to beat him up. After the beatings he could hardly move on his own. One convict, Z., threatened him with sexual violence if he did not sign confession statements. The staff of the medical unit at IK-14 allegedly refused him medical treatment.

26. According to the applicant's medical records from IK-14, from 21 to 29 September 2004 he received inpatient treatment for a neurological disorder.

27. On an unspecified date during his detention in IK-14 the applicant confessed to six crimes and his confessions were recorded as "statements of surrender and confession".

28. On 3 November 2004 at IK-14 the applicant reiterated his confession statements in the presence of S. and his lawyer. The statements were documented in a record of his questioning as an accused. According to the applicant, the confessions were the result of torture by the police and convicts, which he could not stand any longer.

29. On 1 December 2004 S. ordered the applicant's transfer back to the remand centre on the grounds that the risk of him intimidating his co-�accused no longer existed since all necessary investigative measures had been carried out. On 2 December 2004 the applicant was transferred to SIZO-1.

30. According to the Government, during his detention in IK-14 the applicant was held in a unit functioning as a remand centre. He was allowed short-term visits from his wife on 13 August and 24 September 2004. According to a letter of 29 July 2010 signed by the Sukhobezvodnenskiy prosecutor, the applicant was detained in a unit at IK-�14 functioning as a remand centre from 6 August to 2 December 2004.

31. The applicant submitted several envelopes with postage stamps in which he had sent letters to his family in November 2004. His handwritten address was indicated as unit no. 14 at IK-14.

32. The applicant submitted to the Court the following witness statements recorded by a representative of the non-governmental organisation Committee Against Torture in Nizhniy Novgorod in February 2006:

(i) According to a statement by I.K., he was serving a sentence of imprisonment in unit no. 14 at IK-14, where he was informally given the task of monitoring discipline. In September 2004 the applicant, who was not a convicted prisoner like the others, was transferred to the unit. I.K. learned from B., who was high in the unofficial hierarchy of convicted prisoners in the unit, that the applicant had been transferred there so that he could be coerced into giving confession statements at the request of law-�enforcement officers by whatever means. The applicant had bruises under his eyes and haematomas on his head. He could hardly move on his own and was depressed. He was visited several times by officers from the ORB police unit. After the visits he had to seek others' help to get to his cell and looked very oppressed. On one occasion, after a visit, the applicant wrote a statement in which he described being tortured and beaten up during his interviews. I.K. handed the statement over to B. Later that day two convicts, A.V. and S.P., went to see the applicant and took him to a storage room. Through the thin plywood walls I.K. could clearly hear A.V. and S.P. yelling at the applicant and threatening him with physical and sexual violence if he kept complaining and refusing to write the statements which the police had asked him to give. On several other occasions I.K. heard one convict, Z., threaten the applicant with sexual violence if he refused to give statements. After the applicant had been coerced into giving several confession statements in a row he was no longer threatened and beaten up and soon left the colony. I.K. stated that he was ready to confirm his statements before the investigating authority and the courts, adding that he feared pressure from the police and the prosecutor's office.

(ii) According to a statement by G., he was serving a sentence of imprisonment in IK-14. In September 2004 the applicant, who was not a convicted prisoner like the others, was transferred to his unit. He had bruises under his eyes and complained of pain on both sides of his body and in his spine. On repeated occasions he was called for interviews by officers from the ORB police unit. The interviews began in the morning and lasted until evening. After the interviews the applicant was unable to move on his own and had fresh injuries, notably abrasions and bruises on his face. He explained that he had been beaten up by police officers. On one occasion three convicts, V., B. and Z., took him to a storage room. G. heard them yelling at the applicant and threatening him, demanding that he confess to some crimes and write confession statements as requested by the police officers. After that incident the applicant had several fresh bruises on his face.

(iii) According to statements by the applicant's wife, at the court hearing on 9 June 2004 the applicant looked very depressed. He had bruises on his head and abrasions on his wrists. When she visited him in IK-14 his face was bruised, he was dragging his leg behind him and had difficulty sitting down. He said that he was being detained with convicted prisoners in unit no. 14 and visited regularly by police officers demanding that he give confession statements in relation to serious crimes. During subsequent visits, on at least three occasions, the applicant looked like he had been beaten up, with abrasions and bruises on his face and head and bruises on his wrists. He had difficulty speaking, made long pauses and could hardly move. On one occasion, he said that he had signed several confession statements in a row as a result of torture. At one of the court hearings for the extension of his detention he complained of severe back pain.

(iv) According to the applicant's son, D.M., at the same hearing on 9 June 2004 the applicant looked very depressed and shocked. His face was swollen, his lips were smashed and he was walking with difficulty. He did not recognise his family. When visiting his father in IK-14 D.M. learned of the violence he had suffered at the hands of the police officers and convicts.

4. The applicant's medical records

33. The Government submitted extracts from the applicant's medical records relating to the period of his detention, in particular:

(i) A form entitled "examination by a doctor on duty" with the following pre-printed sections: "height", "weight", "complaints", "pharynx and cutaneous coverings", "heart and lungs", "arterial pressure", "tuberculosis", "venereal diseases", "mental diseases", "viral hepatitis". The word "headache" is written in the "complaints" section, while "clean" appears in the "pharynx and cutaneous coverings" section. The form does not give details as to which parts of the applicant's body were examined and where the examination took place. It is signed and dated 9 June 2004.

(ii) A form entitled "bodily injuries upon arrival" states that there were "no bodily injuries" on 9 April 2007 at IK-20. The form is signed and dated 9 June 2004 and contains a similar signature to the form described above.

B. Pre-investigation inquiries into the applicant's alleged ill-�treatment

34. The investigating authorities carried out pre-investigation inquiries into the applicant's allegations of violence by the police and convicts acting on their instructions with the connivance of the administration of IK-�14. No criminal proceedings were opened into his allegations. Details of the decisions taken by the investigating authorities are as follows.

1. The applicant's alleged ill-treatment on 8 and 22 June 2004

35. On 16 July 2004 an investigator from the Nizhegorodskoy district prosecutor's office of Nizhniy Novgorod refused to initiate criminal proceedings into the applicant's alleged ill-treatment on 8 and 22 June 2004, pursuant to Article 24 § 1 (1) of the Code of Criminal Procedure for lack of evidence that a crime had been committed. Relying on statements by S. and the police officers, who all denied the applicant's allegations, the investigator held that the applicant's allegations were not supported by evidence.

36. On 23 August 2004 the Nizhegorodskoy district prosecutor found that decision lawful, well-reasoned and based on a comprehensive and impartial inquiry.

37. On 6 March 2006 the Nizhegorodskoy deputy district prosecutor revoked the decision of 16 July 2004 as unlawful and ill-founded for failure to identify all the police officers concerned.

2. The applicant's alleged ill-treatment on 28 June 2004

38. On 2 August 2004 an investigator from the Nizhegorodskoy district prosecutor's office refused to initiate criminal proceedings into the applicant's alleged ill-treatment on 28 June 2004, pursuant to Article 24 § 1 (2) of the Code of Criminal Procedure for lack of the constituent elements of a crime under Article 286 of the Criminal Code (abuse of powers) in the actions of Ya., one of the police officers who had taken the applicant on 28 June 2004 from SIZO-1 to the police station and back. The investigator relied on statements by Ya. and S. denying any ill-�treatment of the applicant. The investigator held that there was no evidence that the abrasions on the applicant's shins, as described in the medical record of 29 June 2004, had been caused at the police station.

39. On 6 March 2006 the Nizhegorodskoy district deputy prosecutor revoked that decision as unfounded for failure to identify all the police officers concerned.

40. On 13 March 2006 an investigator from the district prosecutor's office issued a new decision refusing to open criminal proceedings against officer Ya., identical to the previous decision. On 31 March 2006 the Nizhegorodskoy district deputy prosecutor annulled that decision as unfounded.

41. In the course of a new pre-investigation inquiry the applicant gave "explanations", describing in detail his alleged ill-treatment by police officers Ch., K., P. and Pr., and stating that he could identify several others. Pr. stated that after the applicant's arrest and before the arrival of the investigator in charge of the criminal case the police officers had interviewed the applicant.

42. Relying on the police officers' statements denying any ill-treatment of the applicant, two more decisions refusing to open a criminal case against the police officers were issued on 10 April 2006 (annulled the same day) and 19 April 2006.

3. The applicant's alleged ill-treatment during his detention in IK-14 from July to November 2004

43. On 8 April 2005 a deputy prosecutor from the Sukhobezvodnenskaya prosecutor's office, which supervised law observance in penal facilities, refused to institute criminal proceedings into the applicant's allegations of ill-treatment in IK-14, pursuant to Article 24 § 1 (1) of Code of Criminal Procedure for lack of evidence that a crime had been committed.

44. The decision stated that, according to the applicant, while in IK-14 he had been held in a punishment cell in a unit functioning as a remand centre and in unit no. 14 together with convicted prisoners, who had subjected him to psychological and physical violence to force him to give "statements of surrender and confession". His allegations had included regular beatings by convicts A.A., B., M.K., S.P. and A.V., a member of the administration of IK-14, Captain V., and police officers, in particular P. and his subordinates.

45. Relying on statements by police officers M., P. and Ya., the investigator S., convicts A.A., M.K., and A.V., and T., the head of the unit functioning as a remand centre, who all denied the applicant's allegations of ill-�treatment, the deputy prosecutor held that the applicant's allegations were not supported by evidence.

46. On the same day the head of the Nizhniy Novgorod regional prosecutor's office division responsible for supervising investigations and inquiries reviewed the decision of the Sukhobezvodnenskaya prosecutor's office of 8 April 2005 and found it lawful and well-reasoned, stating that during his detention in IK-14 the applicant had confessed to six crimes, and "his statements had been documented in records of surrender and confession (явки с повинной) which had been forwarded to the [Operational-Search Division of the Chief Directorate of the Ministry of the Interior of the Russian Federation] in the Privolzhskiy Federal Circuit (ОРБ ГУ МВД России по Приволжскому федеральному округу)".

47. The applicant lodged appeals against the decision of 8 April 2005, which were dismissed by various levels of prosecutor's office, as stated in a letter from an assistant Prosecutor General of the Russian Federation of 20 February 2006, and letters from the Nizhniy Novgorod regional prosecutor's office dated 9 March and 10 April 2006.

C. The applicant's trial

48. The applicant was tried by jury before the Nizhniy Novgorod Regional Court. At a preliminary hearing on 19 October 2005 he requested that the records of his questioning as an accused and some other records of investigative activities conducted in his case be excluded as evidence because the self-�incriminating statements recorded therein had been obtained from him under duress by police officers and convicts of IK-14.

49. At the applicant's request the trial court heard two witnesses. The applicant's son S.I. stated that at his custody hearing, the applicant had been in a "delirious state", had had a swollen face, had been limping a lot and had been helped by others to move around. When S.I. had visited his father in IK-14 at the end of August 2004 he had had a bruise near one of the eyes, a cut lip, bluish hands and bruises and abrasions on his wrists. The applicant had written to his family in September or October 2004, asking them to lodge an official complaint regarding the beatings. However, he had then changed his mind and asked them not to do so.

50. I.K. stated that he had served a sentence of imprisonment in IK-14. The day after his arrival the applicant had been admitted to the medical unit with complaints of pain in his back and leg. He had had bruises on his face which, according to him, had been inflicted on him by other convicts. The applicant had been taken out of the unit for visits regularly, about three times a month. I.K. had learnt from the applicant that the visitors had been the police. After the visits the applicant had been unable to walk up the stairs and had complained of pain in his head and back.

51. The trial court found that the witness statements did not support the applicant's allegations. It noted that the disputed records had been signed by a lawyer and contained information about the applicant's procedural rights. In the court's opinion, the applicant's medical history, notably post-�traumatic encephalopathy, osteochondrosis of the cervical spine and a form of dystonia, which he had been diagnosed with in 1991, explained his complaints of headaches and pain in his back and legs. The court also relied on statements by S., who denied the applicant's allegations, and on the Sukhobezvodnenskiy prosecutor's decision refusing to institute criminal proceedings into the applicant's alleged ill-treatment. It held that the applicant's allegations that his confession statements had been given under duress were not based on fact and rejected his requests to have the impugned evidence declared inadmissible.

52. On 8 June 2006 the applicant and his co-accused were convicted of theft and a series of armed robberies committed in 1998, 1999, 2002 and on 24 April 2004 by a criminal group led by two of the applicant's co-�accused. The applicant was sentenced to nineteen years' imprisonment. In sentencing the applicant the court applied Article 61 § 1 (i) of the Criminal Code, which provided that a "statement of surrender and confession", active cooperation in investigating a crime and exposure of other participants in a crime were extenuating circumstances which warranted a less severe punishment.

53. The applicant appealed. He stated that after his arrest he had been beaten up by police officers and had given a "statement of surrender and confession" under duress, which he had revoked at trial. His injuries had been confirmed by medical evidence. On 21 July 2004 he had been unlawfully transferred to correctional facility IK-14 under the pretext that he had intimidated his co-accused, which he had never done. He had been held in a punishment cell and then in a unit together with convicted prisoners who had subjected him to beatings as a result of which he had given self-�incriminating statements. This had been confirmed by witness I.K.

54. On 22 February 2007 the Supreme Court of the Russian Federation reduced the applicant's sentence to sixteen years' imprisonment, correcting calculation errors by the trial court, and upheld the remainder of the judgment. Relying on the Sukhobezvodnenskiy prosecutor's decision refusing to institute criminal proceedings, it upheld the trial court's findings in relation to the applicant's allegations of police violence and his request for the evidence allegedly obtained under duress to be excluded.

55. On 25 November 2013 the Varnavinskiy District Court of the Nizhniy Novgorod region reduced the applicant's sentence to fifteen and a half years' imprisonment following amendments to the Criminal Code.

II. RELEVANT DOMESTIC LAW AND PRACTICE

56. The Operational-Search Activities Act (Law no. 144-FZ of 12 August 1995) lists a number of activities that may be carried out by law-�enforcement authorities for the purposes of the detection, prevention, suppression and investigation of criminal offences and the identification of persons conspiring to commit, committing, or having committed a criminal offence (section 2). In particular, the police may conduct an "interview" (опрос, section 6). Other activities provided for by section 6 include: making inquiries; collection of samples for comparative examination; test purchases; examination of objects and documents; surveillance; identity checks; inspection of premises, buildings, constructions, plots of land and vehicles; supervision of postal, telegraphic and other communications; telephone interception; collection of data from technical channels of communication; operational infiltration; controlled supply; and operational experiments. Results of operational-search activities can serve as a basis for bringing criminal proceedings and can be used as evidence in accordance with the legislation on criminal procedure (section 11).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

57. The applicant complained that on 8, 22 and 28 June 2004 he had been subjected to violence by officers from the ORB police unit. He had then been transferred to correctional colony IK-�14 and during his detention there from July to November 2004 had been subjected to further violence by the police and prisoners acting on their instructions with the connivance of the prison administration. He argued that the violence had been used to make him confess to crimes, and had amounted to torture. Furthermore, no effective investigation had been carried out into his complaints. He relied on Article 3 of the Convention, which reads as follows:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

58. The Government disagreed. In their view, the applicant had failed to submit evidence in support of his allegations concerning the events of 8 June 2004, to comply with the standard of proof "beyond reasonable doubt". They pointed out that no injuries had been recorded at SIZO-1 when he had been placed there on 9 June 2004, or on 22 and 28 June 2004.

59. The Government stated that IK-14 held prisoners serving post-�conviction sentences, but also had a unit functioning as a remand centre. They argued that as a person remanded in custody the applicant could have only been detained in that particular unit. Therefore, convicted prisoners could not possibly have inflicted injuries on him. Had the applicant sustained any bodily injuries, these would have been described in the unit medical records.

60. As regards the injuries found on the applicant during his medical examination on 29 June 2004, the Government submitted that a pre-�investigation inquiry had been carried out into the applicant's alleged ill-treatment and the related material had been destroyed after the expiry of the relevant storage period. During the pre-�investigation inquiry into an alleged crime the investigating authorities had at their disposal certain investigative activities and also a wide range of operational-search techniques provided for by the Operational-Search Activities Act (see paragraph 56 above). Those techniques were sufficient for establishing facts to indicate that the elements of a crime had been made out before the institution of criminal proceedings. As regards the identification of persons who had committed a crime and their prosecution, that was only possible within criminal proceedings instituted after a pre-investigation inquiry.

61. The Government pointed out that from the time of the applicant's arrest as a suspect all investigative activities had been carried out lawfully.

A. Admissibility

62. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

63. The Court reiterates that in assessing the evidence on which to base the decision as to whether there has been a violation of Article 3, it adopts the standard of proof "beyond reasonable doubt". However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006-�IX). Where an individual is taken into police custody in good health and is found to be injured on 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 (see Ribitsch v. Austria, 4 December 1995, § 34, Series A no. 336, and Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-�V). Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of individuals within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. The burden of proof is then on the Government to provide a satisfactory and convincing explanation by producing evidence establishing facts which cast doubt on the version of events given by the victim. In the absence of such an explanation, the Court can draw inferences which may be unfavourable for the Government. That is justified by the fact that those in custody are in a vulnerable position and the authorities are under a duty to protect them (Bouyid v. Belgium ([GC], no. 23380/09, § 83, ECHR 2015).

1. Substantive aspect

64. The thrust of the Government's submissions concerns the lack of any injuries on the applicant according to the records from remand centre SIZO-�1 relating to 9, 22 and 28 June 2004 and those from correctional colony IK-14.

65. The Court observes that it is disputed between the parties whether the applicant was actually placed in SIZO-1 on 9 June 2004. According to the applicant, he was placed there on 14 June 2004 after being held in the temporary detention facility of the Nizhniy Novgorod regional police department from 8 to 9 June 2004, and in the temporary detention facility of the Privolzhskiy Federal Circuit police department from 9 to 14 June 2004. These facts were not clarified by the investigating authorities. The Government have not submitted any records from SIZO-1 to reliably show that the applicant's detention there commenced on 9 June 2004. Nor have they submitted records from the above-mentioned temporary detention facilities as to whether or not the applicant was detained there.

66. As regards the applicant's medical records submitted by the Government, both extracts described in paragraph 33 above are dated 9 June 2004, even though one of them concerns a medical examination carried out several years later, on 9 April 2007. In the absence of any explanation by the Government, it cannot reliably be concluded that the applicant's medical examination in SIZO-1 took place on 9 June 2004. Even assuming that it did, the records contain no details of the examination, such as the parts of the applicant's body that were examined to allow for the conclusion that the "cutaneous coverings" were "clean". Furthermore, the Government have submitted no medical records to show that the applicant was examined on 22 and 28 June 2004, when he was placed in SIZO-1 after being taken to the police station by officers from the ORB police unit. The Court notes that his request to the staff of SIZO-1 to record his injuries was noted in his complaints to the domestic authorities of 29 and 30 June 2004.

67. The applicant, who had complained of contusions to the chest and abrasions and requested that his injuries be recorded, was examined by a doctor, Ch., at SIZO-1 on 29 June 2004. The doctor recorded circular abrasions on the lower third of both shins with a brown "wet" surface, 1.5 to 2 centimetres wide, and concluded that they had been inflicted the previous day. According to the applicant, the injuries had been inflicted on him as a result of the ill-treatment by officers from the ORB police unit. By the time the injuries were found on the applicant he had been held in detention uninterruptedly for twenty-one days. The Court considers that the injuries could arguably have resulted from the applicant's alleged ill-�treatment by the police.

68. The Court further notes that the applicant's injuries were not recorded when he was placed in SIZO-1 the previous day after being taken to the police station by officers from the ORB police unit. In the absence of any explanation from the Government regarding such a serious failing, this weakens their key argument about the lack of any injuries on the applicant according to the records from remand centre SIZO-1 relating to 9, 22 and 28 June 2004.

69. Turning to the other evidence produced by the applicant, the Court observes that his allegations of ill-�treatment at the police station on 8 June 2004 are supported by the coherent statements of his wife and sons who had seen him at the court hearing on 9 June 2004 (see paragraphs 32 (iii) to (iv) and 49 above).

70. The Court observes that at the time of the alleged ill-�treatment on 8 June 2004, that is between the search of the applicant's flat (ordered as a result of his suspected involvement in the robbery) and his official arrest by the investigator, the applicant was being held in police custody, was interviewed by officers in the absence of a lawyer and confessed to the robbery. His confession was recorded by the police in the form of a "statement of surrender and confession", allegedly given voluntarily after he had reported himself to the police station, whereas in reality he had been taken there by police officers after the search. The Court has previously found that obtaining a voluntary "statement of surrender and confession" from a de facto suspect without a lawyer needing to be present is a violation of the suspect's right to legal assistance, and the use of such a statement as evidence renders a trial unfair (see Turbylev v. Russia, no. 4722/09, §§ 94-�95, 6 October 2015). As in Turbylev, at the time of his confession the applicant was being held in police custody for the sole reason that he was suspected of committing the robbery (see paragraphs 6 and 7 above). Therefore, he should have been provided with access to a lawyer along with the other rights of a suspect.

71. The Court further observes that at the time of the alleged ill-�treatment on 22 and 28 June 2004 the applicant, an accused at that stage, was being held in police custody and was taken from his detention facility to the police station by officers from that unit. There is no indication that any investigative activities were carried out with him on those days and the purpose of those transfers remains unknown.

72. It can therefore be concluded that the applicant's alleged ill-�treatment took place in the context of arbitrary actions on the part of the police. This not only tends to favour the applicant's account of the events of 8, 22 and 28 June 2004, but also taints the police officers' subsequent involvement in the case, given that no criminal or disciplinary proceedings were opened to investigate the applicant's alleged ill-treatment and that the same police unit and even the same police officers were involved in the case until the end of the preliminary investigation.

73. As for the allegations of further ill-treatment of the applicant in IK-�14, the Court is mindful of the fact that his transfer there was initiated by officers from the ORB police unit and ordered by S., and that the alleged intimidation of his co-accused, which served as grounds for the transfer, was not subject to any proceedings in which he could challenge it.

74. The Government's conclusion that the applicant's allegations were unfounded was based on the lack of any injuries in the medical records from IK-14. The Court notes that the ill-�treatment allegedly took place with the connivance and participation of the administration of IK-14 (see paragraph 44 above). The lack of any medical records of injuries at IK-14 cannot therefore serve as grounds for dismissing the applicant's allegations, and other evidence should be thoroughly examined.

75. The Court observes that the applicant's allegations of being regularly beaten up and threatened by police officers and the convicts of IK-14 to make him confess to crimes are supported by the coherent statements of his wife, son, I.K. and G., which, inter alia, describe the applicant's condition and injuries, in particular abrasions and bruises on the visible parts of his body (his face, head and wrists), the difficulties he faced in moving on his own and his depressed state (see paragraphs 32 and 49 above). Noting that I.K. did not repeat all the initial statements he had given in February 2006 before the Nizhniy Novgorod Regional Court (as summarised in the judgment of 8 June 2006), the Court pays attention to the fears initially expressed by I.K. in relation to an eventual testimony in court. His latter testimony, however, corroborated the applicant's allegations.

76. The Government have not produced records from IK-14 concerning units or cells the applicant was held in and the details of all visits he received. The applicant's allegations that he was held together with convicted prisoners and received visits from officers of the ORB police unit are supported by the statements of his wife, G. and I.K. The Court also notes that the stamped envelopes of the letters sent by him to his family from IK-14 have written on them "unit no. 14", in which convicted prisoners were allegedly held, as the place of his detention (see paragraph 31 above).

77. Furthermore, during his detention in IK-14 the applicant, an accused at that stage, gave statements of surrender and confession in relation to six crimes (see paragraph 46 above). The records of those statements have not been submitted to the Court and it remains unclear whether they were collected during an interview by officers from the ORB police unit, as on 8 June 2004 (see paragraph 70 above). However, given the nature of those statements under domestic law, that is to say a voluntary confession to a crime collected by a law-enforcement official without a lawyer needing to be present (ibid.), the fact that, after pleading his innocence when officially questioned as a suspect and accused in the presence of his lawyer, the applicant made such confession statements at IK-14 in the absence of his lawyer and outside of an official interview with the investigator adds credibility to his account of events.

78. In the light of the foregoing, the Court has sufficient grounds to consider that the applicant's allegations of ill-treatment by the police and prisoners acting on their instructions were credible.

79. The Court finds that the repeated acts of violence during the applicant's detention between 8 June 2004 and 3 November 2004, to which he was subjected by the police and prisoners acting on their instructions, given their severity and the aim of obtaining confessions, amounted to torture (see Selmouni, cited above, §§ 96-105, and Gäfgen v. Germany [GC], no. 22978/05, § 90, ECHR 2010).

2. Procedural aspect

80. The Court observes further that the applicant's allegations of ill-�treatment by the police and prisoners acting on their instructions were dismissed by the domestic investigating authorities, which relied largely on the statements of the police officers and prisoners in question denying any wrongdoing and never ordered the applicant's forensic medical expert examination. The investigators based their findings on the results of the pre-�investigation inquiry, which is the initial stage in dealing with a criminal complaint under Russian law and should normally be followed by the opening of a criminal case and the carrying out of an investigation if the information gathered has disclosed elements of a criminal offence (see Lyapin v. Russia, no. 46956/09, § 129, 24 July 2014).

81. The Court reiterates its finding that the mere carrying out of a pre-�investigation inquiry under Article 144 of the Code of Criminal Procedure of the Russian Federation is insufficient if the authorities are to comply with the standards established under Article 3 of the Convention for an effective investigation into credible allegations of ill-�treatment in police custody. It is incumbent on the authorities to institute criminal proceedings and conduct a proper criminal investigation in which a full range of investigative measures are carried out (ibid., §§ 129 and 132-36).

82. The Court considers that the Government, which relied on the superficial domestic pre-�investigation inquiries, have failed to discharge their burden of proof and produce evidence capable of casting doubt on the applicant's account of events (see Olisov and Others v. Russia, nos. 10825/09 and 2 others, § 85, 2 May 2017).

83. The Court finds that the authorities failed to carry out effective investigations into the applicants' credible allegations of ill-�treatment, as required by Article 3 of the Convention.

3. Conclusion

84. There has accordingly been a violation of Article 3 of the Convention under its substantive limb in that the applicant was subjected to torture, and under its procedural limb on account of the lack of an effective investigation into his allegations.

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

85. The applicant complained that his conviction had been based on confession statements obtained from him as a result of torture. He relied on Article 6 § 1 of the Convention, which reads in the relevant part as follows:

"In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ..."

86. The Government contested that argument, referring to the findings of the domestic investigating and judicial authorities. In particular, they doubted that the impugned statements had "constituted the basis" for the judgment, noting that the applicant had been tried by jury and therefore the impugned statements, which had been presented to the jury along with the other evidence, had not been referred to in the Nizhniy Novgorod Regional Court's judgment.

A. Admissibility

87. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

88. The Court reiterates that the admission of confession statements obtained in violation of Article 3 renders the criminal proceedings as a whole automatically unfair, irrespective of the probative value of those statements and irrespective of whether their use was decisive in securing the defendant's conviction (see Gäfgen, cited above, §§ 166 and 173, and, among recent authorities, Turbylev, cited above, § 90).

89. The Court has found above that the applicant was subjected to torture by police officers and prisoners acting on their instructions to force him to make confession statements. It observes that on 8 June 2006 and on an unspecified date during his detention in IK-14 the applicant made statements of "surrender and confession", which he reiterated on 3 November 2004 during his questioning as an accused. Those statements formed part of the evidence adduced against him, which follows from the Nizhniy Novgorod Regional Court's decision of 19 October 2005 rejecting the applicant's request for the records of his questioning as an accused to be declared inadmissible evidence, and the judgment of 8 June 2006 sentencing the applicant to a less severe punishment on the grounds of his having given a "statement of surrender and confession" (see paragraphs 48-�52 above).

90. In rejecting the applicant's request for his confession statements to be declared inadmissible on the grounds that they had been obtained under duress the Regional Court failed to carry out a proper independent assessment of the relevant medical, witness and other evidence with a view to ascertaining whether there were reasons to exclude those statements, allegedly "tainted" by the applicant's ill-treatment, so as to ensure the fairness of the trial. Instead, it relied on the investigating authority's decision refusing to institute criminal proceedings into the applicant's alleged ill-treatment, which the Court has found to have been based on a pre-investigation inquiry which did not meet Article 3 requirements. The Regional Court's conclusion that the applicant's condition as a result of his alleged ill-�treatment, notably headaches and pain in his back and legs, was explained by his medical history was not based on any medical expert opinion. This lack of a careful assessment of the quality of the impugned evidence and the circumstances in which it was obtained was not remedied by the Supreme Court of the Russian Federation.

91. In such circumstances, the Court concludes that, regardless of the impact the statements obtained under duress had on the outcome of the criminal proceedings against the applicant, their use as evidence rendered the applicant's trial unfair.

92. There has, accordingly, been a violation of Article 6 § 1 of the Convention.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

93. As regards the applicant's remaining complaints under the Convention, having regard to all the material in its possession and in so far as they fall within the Court's competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

94. Article 41 of the Convention provides:

"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."

A. Damage

95. The applicant claimed 100,000 euros (EUR) in respect of non-�pecuniary damage suffered as a result of repeated acts of torture by the police and convicts, which had diminished his human dignity and caused him acute physical pain and moral suffering.

96. The Government considered the claims excessive and unsubstantiated.

97. The Court awards the applicant EUR 50,000, plus any tax that may be chargeable, in respect of non-�pecuniary damage.

98. Furthermore, the Court refers to its settled case-law to the effect that when an applicant has suffered an infringement of his rights guaranteed by Article 6 of the Convention, he should, as far as possible, be put in the position in which he would have been had the requirements of that provision not been disregarded, and that the most appropriate form of redress would, in principle, be the reopening of the proceedings, if requested (see, mutatis mutandis, Öcalan v. Turkey [GC], no. 46221/99, § 210 in fine, ECHR 2005-IV, and Popov v. Russia, no. 26853/04, § 264, 13 July 2006). The Court notes, in this connection, that Article 413 of the Code of Criminal Procedure of the Russian Federation provides a basis for the reopening of the proceedings if the Court finds a violation of the Convention.

B. Default interest

99. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaints concerning the applicant's alleged ill-treatment, the ineffectiveness of the ensuing investigation and the use at the trial of confession statements allegedly obtained under duress admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 3 of the Convention under its substantive limb in that the applicant was subjected to torture, and under its procedural limb on account of the lack of an effective investigation into his allegations;

3. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the use as evidence of the confession statements obtained as a result of torture;

4. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 50,000 (fifty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 15 May 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıHelena Jäderblom
Deputy RegistrarPresident

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You are here: BAILII >> Databases >> European Court of Human Rights >> SERGEY IVANOV v. RUSSIA - 14416/06 (Judgment : Article 3 - Prohibition of torture : Third Section) [2018] ECHR 392 (15 May 2018) URL: http://www.bailii.org/eu/cases/ECHR/2018/392.html Cite as: CE:ECHR:2018:0515JUD001441606, [2018] ECHR 392, ECLI:CE:ECHR:2018:0515JUD001441606