LEONID PETROV v. RUSSIA - 52783/08 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2016] ECHR 855 (11 October 2016)

In the case of Leonid Petrov v. Russia,

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

          Luis López Guerra, President,
          Helena Jäderblom,
          Dmitry Dedov,
          Branko Lubarda,
          Pere Pastor Vilanova,
          Alena Poláčková,
          Georgios A. Serghides, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 20 September 2016,

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

PROCEDURE

1. The case originated in an application (no. 52783/08) 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 Leonid Vladislavovich Petrov (“the applicant”), on 25 July 2008.

2. The applicant was represented by Mr A.V. Glukhov, a lawyer practising in Novocheboksarsk. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.

3. The applicant alleged, in particular, that he had been unlawfully deprived of his liberty and ill-treated in police custody, and that no effective investigation into his ill-treatment had been carried out.

4. On 16 March 2015 the complaints concerning the applicant’s deprivation of liberty, alleged ill-treatment by the police and lack of an effective investigation were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1978 and lived in Cheboksary before his conviction. He is currently serving a sentence in Novocheboksarsk.

A. The applicant’s arrest and subsequent events

6. In April 2006 a criminal case was opened into the theft of money belonging to the applicant’s cousin, Ms G.

7. On 8 September 2006 G. was found dead in her flat with several gunshot wounds. On 9 September 2006 a criminal case was opened into her murder.

8. On 14 September 2006 the applicant, who was suspected of the theft and whose whereabouts were unknown, was placed on a police wanted list.

9. At around 10 p.m. on 6 October 2006 the applicant was arrested on the street. He was handcuffed and taken to the police station of the Moskovskiy district police department of Cheboksary (Московский РОВД г. Чебоксары - “the district police”). According to Ms P. and two other female witnesses, the applicant had no injuries before his arrest.

10. The applicant was escorted to the police station at around 11 p.m. He was taken in handcuffs to room no. 217 on the first floor (“second floor” in Russian) and interviewed by operative police officers Ch. and F. about the theft and murder. He gave a partial confession, stating that he had stolen less money from the victim, but denied murder.

11. The parties provided different accounts of the events at the police station.

12. According to the applicant, police officers Ch. and F., who were drunk at the time, demanded that he confess to the theft and murder. They allegedly beat him up, delivering blows to his head, ears, body and legs, and threatened him with rape. At about 3 a.m. they shackled a 40 kg weight to his hands, which he was made to hold while they continued to physically assault him. At about 4 a.m. they made him stand on the windowsill of an open window and threatened to throw him out and make it look as if he had attempted to flee or commit suicide if he did not confess to the murder. After refusing to do so, one of the police officers allegedly pushed him out of the window.

13. According to the Government, in the course of the police interview the applicant, who was drunk when he was taken to the police station, suddenly climbed on a table and jumped out of the window. This course of events was reported by police officers Ch. and F. to their superior on 7 October 2006. They stated that they had taken the applicant for an interview in room no. 217 in handcuffs as he had been drunk, had had a strong smell of alcohol coming from his mouth, had behaved aggressively and inadequately and had used obscene and threatening language towards them.

14. Shortly before 6 a.m. on 7 October 2006 the applicant was given first aid by the ambulance service, which diagnosed him with a closed head injury, concussion and bruises of the soft tissue on the face and on both feet. According to the paramedic and his assistant, they found the applicant lying on the tarmac conscious; he was handcuffed without any weight shackled to him.

15. At 6.15 a.m. the applicant was taken to the Cheboksary Town Emergency Hospital handcuffed on a stretcher, accompanied by police officers Ch. and F. After surgery his right foot was in plaster and his left foot had a weight fixed to it. The applicant was shackled to the bed by one of his hands and guarded by a police officer.

16. From 11.20 to 11.55 a.m. on 7 October 2006 an investigator from the district police questioned the applicant in hospital as a suspect in the theft case, in the presence of a lawyer. He reiterated his confession (see paragraph 10 above). From 7 to 8.30 p.m. that evening an investigator from the Moskovskiy district prosecutor’s office questioned him as a witness in the murder case.

17. According to Ms P. and the applicant’s mother, who visited the applicant in the hospital, the applicant’s eyes were both bruised (which is also evident on photographs of the applicant in hospital), his left ear was swollen, his teeth were loose and he could hardly talk. According to his mother, his left ear was unresponsive and he could not hear, his head and chin were badly bruised, and he had bruises and cuts on his wrists. The applicant told his mother that he had been beaten up and threatened with rape by two police officers, who had shackled a 40 kg weight to him and threatened to throw him out of a window if he did not confess to the crimes. He could not remember what had happened next.

18. At 1.10 p.m. on 10 October 2006 an investigator from the district police drew up a record of the applicant’s arrest at 1 p.m. that day as a suspect in the theft case. On 11 October 2006 the Moskovskiy District Court of Cheboksary (“the District Court”) dismissed the investigator’s request to have the applicant remanded in custody on the grounds that he had been hospitalised and could not participate in the hearing himself.

19. At 2.15 p.m. on 13 October 2006 an investigator from the Moskovskiy district prosecutor’s office drew up a record of the applicant’s arrest at 2.10 p.m. that day on suspicion of the murder. On the same day the District Court extended his arrest until 16 October 2006.

20. On 16 October 2006 the criminal cases concerning the theft and murder were joined and the applicant was charged with both crimes. The District Court remanded him in custody.

21. On the same day the applicant, who had been undergoing continuous inpatient treatment in hospital since 7 October 2016, was transferred to the Cheboksary pre-trial detention facility.

22. By an order of 21 October 2006 the Ministry of Internal Affairs of Chuvashiya held police officers Ch. and F. liable in disciplinary proceedings for failing to properly guard the applicant and leaving him without permanent surveillance on 7 October 2006. They were issued with a severe warning. The order stated that in the course of the applicant’s interview the police officers, who had failed to carry out their duties in accordance with the service regulations and to take into account the applicant’s personality, had opened a window thereby creating conditions for the applicant to jump out of it.

23. On 22 November 2006 the applicant confessed to the murder of G. in the course of his questioning as an accused, in the presence of his lawyer.

24. On 8 February 2007 the District Court convicted him of theft, murder and possession of a firearm, and sentenced him to fourteen years’ imprisonment. The period of his arrest and remand in custody from 10 to 12 October 2006 and from 13 October 2006 onwards was counted towards his sentence. The judgment entered into force on 5 April 2007.

B. The applicant’s medical records

25. The following injuries were recorded during the applicant’s initial examination at the Cheboksary Town Emergency Hospital on 7 October 2006: a soft tissue injury to the head, scratches on the face and knees, swelling and bruises on the left hip, a fractured left foot and a dislocated right foot. He was diagnosed with a closed head injury, concussion, bruises and scratches on the head soft tissue and left hip and knee joints, and fractures to both feet.

26. On 8 October 2006, during his inpatient treatment in hospital, the applicant, who had complained that one of his teeth was loose and painful, was examined by a dentist and diagnosed with a “contusion of tooth 41” (lower tooth on the right side). On 11 October 2006 an otolaryngologist examined him in connection with the impaired hearing in his left ear and diagnosed him with otitis.

27. From 22 October to 12 November 2006 the applicant received inpatient treatment in the medical facility of Chuvashiya correctional colony no. 4 (IK-4).

28. It appears from a report by a panel of forensic psychiatrists dated 24 November 2006 that the applicant suffered from a personality disorder which did not require medical treatment or exclude his criminal responsibility. The experts did not assess the applicant’s fall from the window of the police station.

29. On 11 December 2006 an investigator of the Moskovskiy district prosecutor’s office ordered a forensic medical examination of the applicant. The investigator stated that at about 5 a.m. on 7 October 2006 the applicant had fallen from office no. 217 on the first floor of the police station and received injuries to both feet. The investigator asked whether on 7 October 2006 the applicant had had any injuries other than those to both of his feet, and if so, how and when they had been received, whether they could have been received as a result of a fall onto tarmac from the first floor, where they were located and how serious they had been.

30. Following an examination of the applicant’s hospital records, a forensic medical expert concluded on 14 December 2006 that the information concerning the applicant’s initial examination in hospital on 7 October 2006 was undetailed. Information on the exact location, number and morphological characteristics of the injuries was missing, and was insufficient to determine the time and order they had been inflicted to distinguish them and determine which could have been as a result of the applicant being punched and kicked and which could have been as a result of his fall from the first floor. It was stated in the expert’s report that the applicant had not attended the examination, after asking in writing to carry it out in his absence.

C. Pre-investigation inquiry into the applicant’s allegations of police ill-treatment and unlawful deprivation of liberty

1. Refusal to open a criminal case

31. On 11 October 2006 the applicant’s mother lodged a complaint with the Chuvashiya prosecutor’s office concerning her son’s alleged ill-treatment and unlawful deprivation of liberty from 6 to 10 October 2006.

32. On 8 November 2006 the applicant lodged a complaint with the Moskovskiy district prosecutor’s office concerning his alleged ill-treatment by the police officers, requesting that criminal proceedings be opened against them.

33. The Moskovskiy district prosecutor’s office and subsequently the Cheboksary inter-district investigation department of the investigative committee at the Chuvashiya prosecutor’s office refused to open a criminal case into the applicant’s alleged ill-treatment and unlawful deprivation of liberty twenty-four times, pursuant to Article 24 § 1 (2) of the Code of Criminal Procedure (“CCrP”), because none of the elements of the offences provided for in Articles 127, 285, 286, 299 and 301 of the Criminal Code (unlawful deprivation of liberty, abuse of powers, criminal prosecution of persons known to be innocent and unlawful arrest and detention respectively) were present in respect of the actions of the police officers. They concluded that the applicant’s allegations could not be confirmed by a pre-investigation inquiry.

34. The pre-investigation inquiry was resumed twenty-three times as the decisions refusing to open a criminal investigation were set aside by higher authorities within the prosecutor’s office and subsequently the investigative committee as unsubstantiated, unlawful or based on an incomplete inquiry.

(i) A refusal on 21 October 2006 was overruled on 5 December 2006 on the grounds, inter alia, that nothing had been done to establish whether there had been a 40 kg weight in office no. 217. Moreover, police officers Ch. and F. had carried out non-investigative actions involving the applicant, a suspect in the criminal case, from 11 p.m. to 5.42 a.m. on the night of 6 October 2006, and no assessment of the lawfulness of those actions had been carried out.

(ii) A refusal on 12 December 2006 was overruled on 13 December 2006. It was noted that office no. 217 had been inspected and no weights had been found.

(iii) Twenty further decisions refusing to open a criminal case taken between 18 December 2006 and 9 October 2008 were overruled. In particular, a refusal on 22 May 2008 was overruled on 5 June 2008 on the grounds that instructions by the deputy head of the investigative committee of Chuvashiya given on 22 November 2007 had still not been fulfilled. A refusal on 16 June 2008 was overruled on 16 June 2008 on the grounds that deficiencies identified by the deputy head of the prosecutor’s office of Chuvashiya on 5 December 2006, the Moskovskiy District Court of Cheboksary on 6 March 2007 and the Supreme Court of Chuvashiya on 12 April 2007 had still not been corrected.

(iv) A refusal on 27 October 2008 was overruled on 28 October 2008 on the grounds that the investigative committee of Chuvashiya acknowledged that investigator S. had been found liable in disciplinary proceedings for stalling the inquiry and issuing unlawful and unsubstantiated decisions based on an incomplete inquiry.

(v) A refusal on 2 December 2008 was upheld by the courts as a result of a review under Article 125 of the CCrP (see paragraph 40 below).

35. In the most recent refusal issued on 2 December 2008 investigator A. from the Cheboksary investigative committee found that the applicant, who had been wanted in the theft case, had been arrested and taken to the police station and remained there on suspicion of committing it. His being held in room no. 217 for five hours had been necessary for carrying out operational-search measures. Police officers Ch. and F. had handcuffed him lawfully in order to guard him and prevent him from escaping or harming himself or others. His hospitalisation had made it impossible for him to be arrested as a suspect on 7 October 2006. He had been handcuffed in hospital to prevent him from attempting to escape again.

36. The investigator also found that the applicant had jumped out of the window himself in order to flee, without any coercion by the police officers. His allegations that he had been subjected to physical violence had not been confirmed. The investigator stated that injuries other than those to both feet had been found on the applicant at the time of his admission, as set out in the forensic medical expert’s report of 14 December 2006. However, the lack of any detailed description of those injuries in the applicant’s medical records had made it impossible to establish when and how they had been received, in particular whether they had been received as a result of him falling from the first floor or being beaten up.

37. The investigator’s decision of 2 December 2008 referred, inter alia, to statements by police officers Ch. and F. They said that after the applicant’s arrest on 6 October 2006 they had interviewed him in room no. 217 about the theft and the murder of G. of which he had been suspected. The applicant had given a partial confession to the theft but had denied murder. He had been convicted of a criminal offence in the past and had tried to escape from a police station by jumping out of a toilet window. The incident had prompted the police to install iron bars on it. In September 2006, after the murder of G., the applicant had been hospitalised for a drug overdose, but had not been arrested because after the hospital had alerted the police he had managed to escape. During the interview on 6 October 2008 the applicant, who had been drunk and had smelled of alcohol, had behaved provokingly and insulted them with obscene words. They had therefore handcuffed him (placing his hands in front) to avoid any attempts to escape or commit suicide. At about 5 a.m., as F. had been leaving the room, the applicant had jumped on a table adjacent to an open window and jumped out. Ch. claimed that he had been putting documents into a safe at the time, while F. said that Ch. had been sitting at the table and the applicant had been sitting on a chair near the table immediately before jumping out of the window. Access to the window had been blocked by the table. It had been possible to reach and open it while sitting at the table. They had taken the applicant to hospital and guarded him there to prevent him attempting to flee again.

38. The decision of 2 December 2008 also referred to the applicant’s statements that immediately before his arrest he had been drinking, and to statements by the investigator from the district police and a police officer who had guarded the applicant at the hospital on 9 October 2006 that the applicant had allegedly stated off the record that he had jumped out of the window himself trying to flee, without any influence by the police officers. It also relied on statements by duty police officer T. that in the early morning of 7 October 2006 he had seen on a monitor (no video recordings had been made) that somebody had fallen out of the window of the police station. He had been the first to go near the applicant lying on his back with his hands handcuffed to his front. Nothing had been attached to his hands. In his earlier statements set out in the refusal to open a criminal case of 21 October 2006, T. explained that at around 5 to 6 a.m. on 7 October 2006 he had seen on a monitor that somebody was lying near the entrance of the police station. Police officers and ambulance staff approached him. T. had not gone near him himself and had neither seen him nor whether there had been any objects near him.

2. Judicial review of the investigating authority’s decisions

39. Refusals of 17 February 2007 and 25 April 2007, as well as the refusal of 2 December 2008, were reviewed by the domestic courts in accordance with Article 125 of the CCrP. The applicant’s complaints concerning the two 2007 refusals were allowed. In decisions of 6 March and 13 September 2007 the District Court found that they were unlawful and lacked reasoning. The decision of 6 March was upheld on appeal on 12 April 2007 by the Supreme Court of Chuvashiya, which noted that it was necessary to assess the lawfulness of the handcuffing and guarding of the applicant in hospital before his detention in the criminal proceedings. The decision of 13 September 2007 also found the Moskovskiy district prosecutor’s failure to enforce the District Court’s previous decision of 6 March 2007 unlawful.

40. On 3 November 2009 the District Court dismissed the applicant’s appeal against the most recent refusal to open a criminal case, finding that the investigating authorities had carried out all the measures necessary for establishing the relevant facts fully, objectively and thoroughly, and had taken a reasoned decision on the basis of a full and comprehensive inquiry in accordance with the law. On 10 December 2009 the Supreme Court of Chuvashiya upheld that decision on appeal, noting that in disagreeing with the District Court’s findings, the applicant’s representative had misinterpreted the relevant domestic law.

II. RELEVANT DOMESTIC LAW

41. Article 22 § 2 of the Constitution of the Russian Federation stipulates that no one can be arrested for more than forty-eight hours without a court order. The same principle is set out in Article 10 of the Code of Criminal Procedure (“the CCrP”), which was in force at the material time.

42. Under Article 91 of the CCrP, an investigating authority can arrest a person on suspicion of a criminal offence punishable by imprisonment (i) at the time of the offence or immediately thereafter; (ii) if eyewitnesses have identified him as the perpetrator of the crime; or (iii) if evidence of the crime has been found on the suspect, on his clothes or at his home. The suspect may also be arrested if he or she has tried to abscond (Article 91 § 2 of the CCrP).

43. A record of arrest is to be drawn up within three hours of the time the suspect is brought to the investigating authorities. The record of arrest must indicate the time and date as well as the time, date, place and grounds for the arrest and other relevant information. It must be signed by an official of the investigating authority and the suspect (Article 92 §§ 1 and 2 of the CCrP). Written notice must be given to a prosecutor within twelve hours and the suspect is to be given access to a lawyer and questioned (Article 92 §§ 3 and 4 of the CCrP).

44. If no court order to place the person in custody or to extend his arrest is issued or received within forty-eight hours, the detained suspect is to be immediately released (Article 94 §§ 2 and 3 of the CCrP).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

45. The applicant complained that he had been unlawfully deprived of his liberty on 6 October 2006, as he had been held at the police station and subsequently in hospital, in handcuffs and in the presence of a police officer, before his formal arrest. He relied on Article 5 § 1 of the Convention. The relevant part reads as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...”

46. The Government submitted that on 6 October 2006 the applicant had been arrested on suspicion of theft and murder, but denied that there had been a violation of Article 5 § 1. It had been impossible to draw up a record of the applicant’s arrest as a suspect because he had jumped out of the window and been hospitalised. As soon as he had been discharged he had been remanded in custody in the criminal proceedings concerning the theft and murder and placed in a detention facility.

47. They also claimed that the applicant had not properly raised his complaints of a delay in drawing up the record of his arrest and the unlawfulness of his detention before the domestic authorities. They considered that his request to institute criminal proceedings had not been a proper remedy because there had actually been grounds for his arrest and detention. His complaint was therefore inadmissible.

48. The applicant submitted that the officers had failed to promptly draw up the record of his arrest after taking him to the police station. He argued that because the criminal case had been opened before his arrest and he had been placed on the police wanted list as a suspect in the case, he should have been questioned as a suspect as opposed to being “interviewed” by the police officers. He would have had the benefit of the relevant procedural guarantees, including access to a lawyer. Moreover, his “interview” at the police station had not been documented and his procedural status had remained unclear. He argued that his criminal complaint had been sufficient for an inquiry to be carried out into the lawfulness of his detention.

A. Admissibility

49. The Court observes at the outset that the applicant, who was on the police wanted list, was de facto arrested on suspicion of theft on 6 October 2006, that a record of his arrest as a suspect in the theft case was drawn up on 10 October 2006, that his mother had lodged a complaint concerning the lawfulness of his detention from 6 to 10 October 2006 (see paragraph 31 above) and that the authorities had carried out an inquiry into that complaint. The inquiry found that on 6 October 2006 the applicant had been arrested on suspicion of theft, that he had subsequently been interviewed by police officers Ch. and F. for five hours in room no. 217 on the first floor of the police station, that he had been handcuffed, that he had jumped out of the window, that he had been handcuffed in hospital and that his hospitalisation had made it impossible for him to be formally arrested as a suspect (see paragraphs 35 and 36 above). The inquiry resulted in the decision not to institute criminal proceedings, in particular because none of the elements of the offences provided for in Articles 127 and 301 of the Criminal Code (unlawful deprivation of liberty and unlawful arrest and detention respectively) were present in respect of the actions of the police officers (see paragraph 33 above). That decision was upheld by the domestic courts (see paragraph 40 above).

50. The authorities had been made aware of the alleged unlawfulness of the applicant’s detention by way of the criminal-law complaint which prompted the inquiry by the investigative authorities, whose outcome was upheld by the domestic courts. The Government’s non-exhaustion objection should therefore be dismissed (see Aleksandr Sokolov v. Russia, no. 20364/05, § 66, 4 November 2010).

51. 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

52. The Court is not convinced by the Government’s argument that, while having lawful grounds for the applicant’s arrest and detention, the authorities had had a reason not to record his arrest as a suspect in a timely manner because he had jumped from the window and been subsequently hospitalised.

53. It notes that there were at least five hours between the applicant’s actual arrest on suspicion of theft and his fall from the window. During that time he was interviewed by the police officers, while handcuffed, about the circumstances of the theft and murder. It also notes that the prosecutor’s office expressed concerns about the lawfulness of the police interviews in view of the applicant’s actual status as a suspect in the criminal case (see paragraph 34 (i) above).

54. The Court found a violation of Article 5 § 1 in the case of Fartushin v. Russia (no. 38887/09, §§ 49-54 8 October 2015), which raised an identical problem, namely the unrecorded detention of a suspect in a criminal case by the police. In the present case, as in Fartushin, the applicant’s unrecorded detention at the hands of the police led to his being deprived of access to a lawyer and all other rights of a suspect, which meant that he was left completely at the mercy of those holding him. As such, he was vulnerable not only to arbitrary interference with his right to liberty but also to ill-treatment.

55. The Court concludes that he was deprived of his liberty within the meaning of Article 5 while being held at the police station.

56. As regards the subsequent period, the Court observes that after his fall from the first floor window the applicant, who was conscious, was taken to hospital in handcuffs, accompanied by police officers Ch. and F. He was shackled to the bed by one of his hands and guarded by a police officer, the lawfulness of which raised a concern for the domestic courts (see paragraph 39 above). The Court considers that the applicant was also deprived of his liberty during this period within the meaning of Article 5 (see Aleksey Borisov v. Russia, no. 12008/06, § 85, 16 July 2015).

57. The Court also notes that the applicant’s condition was not an obstacle to the authorities carrying out investigative measures on the day of his hospitalisation. He was questioned twice, first in the theft case and then in the murder case. The Government’s argument that the applicant’s hospitalisation made it impossible for the authorities to draw up a record of his arrest is therefore not made out.

58. The Court takes note of the relevant domestic law (see paragraphs 41-44 above), which expressly stipulated that a record of arrest had to be drawn up within three hours of the time the suspect was brought to the investigating authorities, and that the period of arrest could not be more than forty-eight hours without a court order.

59. It finds the applicant’s unrecorded detention from the time of his actual arrest on 6 October 2006 until his formal arrest on 10 October 2006 a negation of the fundamentally important guarantees contained in Article 5 and incompatible with the requirement of lawfulness and the very purpose of that Article.

60. There has therefore been a violation of Article 5 § 1 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

61. The applicant complained that he had been subjected to ill-treatment by officers at the police station and that no effective investigation into his complaint had been carried out. 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.”

62. The Government disputed the applicant’s allegations, relying on the investigating authority’s most recent decision. They submitted that he had not provided evidence in support of his account of events, while the investigating authority had carried out a comprehensive inquiry in accordance with the domestic law.

63. The applicant maintained his complaint, noting in particular that the Government’s version that he had jumped out of the window in an attempt to abscond was unreasonable: it had been cold outside; he had been handcuffed and he would have had to jump on the table in front of the window unnoticed, which would have been hard to accomplish with two police officers in the room. Furthermore, he maintained that the investigation into his complaint of police ill-treatment had been ineffective. The forensic medical expert review had been carried out two months after the incident and in his absence. The Government had not provided any evidence to show that he had refused to participate in his forensic medical examination in person. Moreover, the inquiry into his complaint of ill-treatment had not been prompt, which had resulted in the loss of evidence.

A. Admissibility

64. 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

1. Substantive aspect of the complaint

65. The relevant general principles were recently summarised by the Court’s Grand Chamber in the case of Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-88, ECHR 2015). In particular, 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 account 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 (ibid., § 83).

66. The Government did not dispute that for at least five hours during the night the applicant was interviewed while handcuffed by two police officers in a room on the first floor of the police station about the circumstances of the theft and murder of which he was suspected, until he fell out of the window.

67. The Government did dispute, however, the applicant’s allegations that during the police interviews he was subjected to ill-treatment in order to make him confess to the crimes.

68. The Court acknowledges that the witness statements suggest that the applicant had no injuries before his arrest (see paragraph 9 above). It also notes that after the time spent in police custody he had medically diagnosed injuries. While the fractures to both feet were, according to the official version of events, the result of the applicant falling out of the window (see paragraphs 29-30 above), the remaining injuries on different parts and sides of his body - the eyes, face, left ear, right tooth, knees and left hip - could arguably have been received, at least partially, as a result of being punched and kicked in addition to falling from the first floor (see the forensic medical expert’s opinion in paragraph 30 above). The above factors are sufficient to create a presumption in favour of the applicant’s account of events. The fact that he was deprived of his liberty arbitrarily makes this presumption stronger.

69. The Government suggested little to dispute the applicant’s account of events. They submitted that he had refused to participate in the forensic medical examination, as was stated in the expert’s report (see paragraph 30 above); that he had allegedly told the police officers that he had jumped out of the window himself in order to flee; that the forensic expert had been unable to establish the exact time and order of the injuries, but had considered that they could have been received as a result of a fall from the first floor; and that the allegation of a 40 kg weight shackled to his hands had been refuted by the examination of the police station and the explanations given by the police officers and ambulance staff. They further pointed to the applicant being drunk, suffering from a psychiatric disorder according to the experts’ report of 24 November 2006, his criminal record, as well as his practising diving at a young age.

70. Even though the factors relied on by the Government are of a secondary nature and not capable of casting doubt on the applicant’s account of events, the Court will address them. It notes that the Government did not produce any written refusal by the applicant to participate in the forensic medical examination and that the circumstances of that alleged refusal were never clarified. Given the authorities’ duty to take all reasonable steps available to them to secure evidence concerning alleged ill-treatment, including, inter alia, forensic evidence (see, for example, Vladimir Fedorov v. Russia, no. 19223/04, § 67, 30 July 2009), the Court cannot lend credence to the Government’s statement. Nor can it lend any credence to the police officers’ explanations that the applicant allegedly told them off the record that he had jumped out of the window himself in order to flee without any influence by the police officers (see paragraph 38 above). The forensic medical expert, as noted above, did not exclude the possibility that the injuries (other than those to the feet) could have been received as a result of a fall from the first floor just as much as being punched and kicked.

71. As to the Government’s argument that the allegation of a heavy weight being shackled to the applicant’s hands in office no. 217 was refuted by evidence, the Court notes that the paramedic and his assistant explained that they had found the applicant lying on the tarmac handcuffed, without any weights shackled to him. However, the exact order of events, including the time and witnesses to the applicant’s fall, was never established. The investigating authority thus referred to explanations by police officer T. that he had been the first to see the applicant and go near him after his fall from the window and that nothing had been shackled to his hands. However, in his earlier statements the same officer had asserted that he had not gone near the applicant and had not seen him or whether there had been any objects nearby (see paragraph 38 above). No explanation to the change in his statements was given in the domestic inquiry. Furthermore, office no. 217 was not examined immediately after the incident, which was one of the grounds for the annulment of the investigator’s refusal to open a criminal case (see paragraph 34 (i) and (ii) above). It was examined more than two months after the incident, which makes it impossible to conclude that there had been no weight there.

72. Lastly, the Court observes that the psychiatric experts’ report did not examine the applicant’s fall from the window and cannot therefore be relied on to argue that his psychiatric disorder had caused him to jump out of the window himself without any connection to the police officers’ actions.

73. The Court considers that the Government failed to discharge their burden of proof and to produce evidence capable of casting doubt on the applicant’s account of events, which it therefore finds established.

74. The Government did not claim that the recourse to physical force the applicant complained of had been made strictly necessary by his own conduct; they simply denied that any force had been used. The Court finds that the acts of violence the applicant was subjected to during the police interviews amounted to inhuman and degrading treatment.

75. Accordingly, there has been a violation of the substantive aspect of Article 3.

76. This finding makes it unnecessary to resolve the parties’ dispute as to the immediate cause of the applicant’s fall from the window, the applicant asserting that he was pushed by a police officer and the Government claiming that he jumped out of the window himself. The Court notes, however, that even assuming that the applicant, after enduring ill-treatment for five hours and in order to stop it, could have himself jumped out of the window - which was opened by the police officers despite the risk of him fleeing or committing suicide according to their own assessment (see paragraphs 13, 22 and 37 above) - this would not absolve the State from responsibility given the authorities’ duty to protect the physical well-being of persons in custody and take certain basic precautions in order to minimise any potential risk (see, mutatis mutandis, Lykova v. Russia, no. 68736/11, §§ 114-15 and 128-31, 22 December 2015).

2. Procedural aspect of the complaint

77. It is not disputed by the Government that the State was under a procedural obligation, arising from Article 3 of the Convention, to carry out an effective investigation into the applicant’s allegations of ill-treatment.

78. The Court has previously found that in the context of the Russian legal system in cases of credible allegations of treatment proscribed under Article 3 of the Convention, it is incumbent on the authorities to open a criminal case and conduct a proper criminal investigation in which the whole range of investigative measures are carried out and which constitutes an effective remedy for victims of police ill-treatment under domestic law. The mere fact of an investigating authority’s refusal to open a criminal investigation into credible allegations of serious ill-treatment in police custody is indicative of the State’s failure to comply with its obligation under Article 3 to carry out an effective investigation (see Lyapin v. Russia, no. 46956/09, §§ 129 and 132-36, 24 July 2014 and subsequent cases, in many of which the Government acknowledged a violation under the procedural aspect of Article 3, such as Razzakov v. Russia, no. 57519/09, §§ 57-61, 5 February 2015; Gorshchuk v. Russia, no. 31316/09, §§ 35-38, 6 October 2015; Turbylev v. Russia, no. 4722/09, §§ 67-72, 6 October 2015; Fartushin, cited above, §§ 44-45; and Aleksandr Andreyev v. Russia, no. 2281/06, §§ 63-65, 23 February 2016).

79. The Court has no reason to hold otherwise in the present case, involving credible allegations of ill-treatment of which the authorities were promptly made aware. The investigating authority carried out the pre-investigation inquiry and decided that there was nothing to show that the elements of a crime were present in respect of the actions of the police officers. On that basis they refused to open a criminal investigation. In total, they took twenty-four such decisions. The decisions were so poorly reasoned that the higher domestic authorities repeatedly set them aside as unsubstantiated, unlawful or based on an incomplete inquiry, sometimes on the same or next day. Those authorities noted on several occassions that their instructions, issued between half a year to a year and a half earlier, had never been fulfilled by the investigators responsible for dealing with the applicant’s complaint, one of whom was found liable in disciplinary proceedings for stalling the inquiry. This makes it all the more surprising that such an inquiry was concluded two years later by the domestic courts, finding that the investigating authority had carried out all measures necessary for establishing the relevant facts fully, objectively and thoroughly, and had taken a reasoned decision on the basis of a full and comprehensive inquiry in accordance with the law (see paragraph 40 above). In assessing whether the investigating authority’s refusal to open a criminal case was lawful and well founded, in the proceedings under Article 125 of the Code of Criminal Procedure, the domestic courts applied strikingly low standards which fell short of the requirements of Article 3.

80. In view of the above, the Court finds that the refusal to open a criminal case into the applicant’s credible allegations of ill-treatment at the hands of the police amounted to a failure to carry out an effective investigation as required by Article 3 of the Convention.

81. There has therefore been a violation of Article 3 of the Convention under its procedural head.

III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

82. The applicant complained, under Article 13 of the Convention in conjunction with Article 3, that the authorities had failed to carry out an effective investigation into his complaint of ill-treatment in police custody. Article 13 reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

83. The Government submitted that the applicant had availed himself of an effective domestic remedy with respect to his complaint under Article 3 of the Convention.

84. The applicant argued that he had been denied an effective remedy for his complaint, since the pre-investigation inquiry, without a criminal case being opened against the police officers, had not secured an effective investigation into his complaint. He further submitted that there had been no effective supervision by the prosecutor’s office over the refusals to open a criminal case, and that the five-year term for keeping the pre-investigation inquiry material had resulted in evidence being destroyed before the expiration of the relevant time-limits for prosecution.

85. The Court notes that this complaint is closely linked to the issue raised under the procedural aspect of Article 3 of the Convention and that it should therefore be declared admissible.

86. Having regard to the finding of a violation of Article 3 under its procedural aspect on account of the respondent State’s failure to carry out an effective investigation, the Court considers that it is not necessary to examine this complaint under Article 13.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

87. 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

88. The applicant claimed 200,000 euros (EUR) in respect of non-pecuniary damage.

89. The Government contested the claim, arguing that the amount claimed should be significantly reduced. In particular, they noted that the applicant had not sustained any serious injuries, and that there had been no serious consequences for his health.

90. Making its assessment on an equitable basis and having regard to the nature of the violations found, the Court awards the applicant EUR 23,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

B. Costs and expenses

91. The applicant did not claim any amount in respect of pecuniary damage.

C. Default interest

92. 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 application admissible;

2. Holds that there has been a violation of Article 5 § 1 of the Convention;

3. Holds that there has been a violation of Article 3 of the Convention under its substantive and procedural limbs;

4. Holds that there is no need to examine the complaint under Article 13 of the Convention;

5. 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 23,000 (twenty-three thousand euros) 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, plus any tax that may be chargeable;

(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;

6. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 11 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Luis López Guerra
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> LEONID PETROV v. RUSSIA - 52783/08 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2016] ECHR 855 (11 October 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/855.html Cite as: ECLI:CE:ECHR:2016:1011JUD005278308, CE:ECHR:2016:1011JUD005278308, [2016] ECHR 855