European Court of Human Rights

 

 

 

THIRD SECTION

 

 

 

CASE OF BURLAKOV v. RUSSIA

(Application no. 50495/07)

 

 

 

 

JUDGMENT

 

 

 

STRASBOURG

1 December 2020

 

This judgment is final but it may be subject to editorial revision.

In the case of Burlakov v. Russia,

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

          Darian Pavli, President,
          Dmitry Dedov,
          Peeter Roosma, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 50495/07) 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 Aleksandr Nikolayevich Burlakov (“the applicant”), on 4 October 2007;

the decision to give notice of the application to the Russian Government (“the Government”);

the parties’ observations;

Having deliberated in private on 3 November 2020,

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

INTRODUCTION

1.  The application concerns the applicant’s alleged ill-treatment during his unrecorded detention by police and the lack of an effective investigation into his complaints.

THE FACTS

2.  The applicant was born in 1984 and lives in Belgorod. He was represented by Mr E.I. Rozhkov, a lawyer practising in Belgorod.

3.  The Government were represented initially by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

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

I. The applicant’s arrest and alleged ill-treatment

5.  On 18 April 2007 officers of the Belgorod regional branch of the Federal Service for Drug Control (“the drugs police” or “the police”) arrested a certain Mr V.G., searched him and found 10.6 g of marijuana, which he said he had bought from the applicant. V.G. agreed to cooperate with the police and to participate in a “test purchase” (проверочная закупка - a kind of sting operation) of drugs from the applicant.

6.  Acting on the instructions of the police, V.G. called the applicant and asked him to sell him more drugs. At around 1 p.m. on 20 April 2007, after the attempted sale of 3.9 g of marijuana to V.G. as part of the test purchase conducted by the police, the applicant was arrested by the officers. Between 1.40 p.m. and 2.02 p.m. they conducted a body search of the applicant and between 2.05 p.m. and 2.25 p.m. they searched his car and seized, inter alia, 7 g of marijuana and the banknotes used for the test purchase. The applicant was taken to the regional office of the Federal Service for Drug Control.

7.  According to the applicant, the police officers beat him up and made him confess to drug dealing. They then drove him to his grandparents’ summer house, which is where the applicant said he had kept drugs. Finding no drugs, the officers, according to the applicant, put him in the police car and started making threats that they would shoot him in the legs; they allegedly punched him and hit him with a pistol and choked him with the collar of his clothes, demanding to know where he kept drugs. The applicant allegedly lost consciousness several times as a result of being choked.

8.  The applicant’s self-incriminating statements in the form of an “explanation” were signed by him and Officer A.D. They concerned, inter alia, his procuring drugs in 2006 and storing them, in particular near his grandparents’ summer house, and the attempted sale of drugs to V.G. on 20 April 2007. He also stated that on 19 April 2007 he had consumed drugs.

9.  On the same day the applicant was taken to the Belgorod regional drug dispensary, where he tested positive for drugs. At 6.10 p.m. the officers issued a record, according to which at 6.10 p.m. the applicant had been escorted to the regional office of the Federal Service for Drug Control in order for an administrative-offence record under Article 6.9 of the Code of Administrative Offences (consumption of drugs) to be drawn up. At 6.30 p.m. they drew up the applicant’s administrative-arrest record and an administrative-offence record (drugs consumption on 19 April 2007), and placed him in the temporary detention facility (IVS) of the Belgorod town police.

10.  On 21 April 2007 the Justice of the Peace of the Vostochniy Circuit of Belgorod found the applicant guilty of the administrative offence under Article 6.9 of the Code of Administrative Offences and ordered his detention for five days. The applicant was kept in the IVS.

11.  On 25 April 2007 the applicant was detained for forty-eight hours on suspicion of having committed, inter alia, the attempted sale of drugs on 20 April 2007 during the test purchase conducted by the police. On 26 April 2007 the applicant was examined as a suspect in the presence of a State‑appointed lawyer and charged with drug dealing, including for the episode of 20 April 2007. On 27 April 2007 he was released on bail.

II. The applicant’s injuries

12.  On 23 April 2007 an investigator of the Belgorod prosecutor’s office ordered a forensic medical examination of the applicant following his complaints of alleged ill-treatment. According to the applicant, on 23 April 2007, he was taken to the Belgorod regional forensic medical bureau by the same police officers who had allegedly ill-treated him, and that these officers talked in private with the expert before the examination. The expert issued a report (dated 23 April 2007), indicating a “dotted” haemorrhage in the eyelids and subconjunctival haemorrhages in both eyes.

13.  On 27 April 2007, after his release on bail, the applicant went to the traumatology department of Belgorod town hospital no. 1, where the doctor diagnosed him with a possible contusion of both kidneys, with a question mark next to the diagnosis. The traumatology department reported the applicant’s alleged ill-treatment to the Belgorodskiy district police.

14.  On 28 April 2007 the applicant was examined by a urologist, who diagnosed him with a contusion of the right kidney and a contusion of the lumbar region. On the same day he was examined by an ophthalmologist who diagnosed him with subconjunctival haemorrhages in both eyes.

15.  The applicant further provided his photograph, taken on 28 April 2007 at a photographer’s studio, which shows signs of blood effusion into both eyes. It is accompanied by the studio’s receipt and certified by the applicant’s lawyer.

16.  The applicant submitted that his contusions had been caused during the beatings by the officers on 20 April 2007 while the blood in his eyes had been caused by the officers choking him the same day.

III. PRE-investigation Inquiry into the applicant’s complaints

17.  The applicant complained of his alleged ill-treatment to the Belgorod police on 23 April 2007, while detained in the IVS. On 11 June 2007 he reiterated his grievances in an application lodged with the Belgorod town and regional prosecutor’s offices, as well as the Prosecutor General of the Russian Federation, stating that he had been arrested on 20 April 2007 on suspicion of having committed a criminal offence, without being informed of his rights as a suspect and without access to a lawyer. In support of his allegations that the police officers had tortured him in order to obtain his confession to a criminal offence and information about his drugs cache, the applicant referred to the forensic medical expert’s report, the traumatology department’s certificate and his photograph, taken after his release on 27 April 2007, which showed signs of blood effusion into both eyes. His parents also lodged complaints against the police officers.

18.  On the dates specified below, investigators of the Belgorod town prosecutor’s office issued successive refusals to open criminal proceedings against the officers. The refusals, except for the most recent one, were systematically annulled by their superiors for being unsubstantiated or unlawful, and the investigators were ordered to carry out additional pre‑investigation inquiries.

 

No.	issued on:	annulled on:
(i)	10 May 2007	21 May 2007
(ii)	26 May 2007	8 June 2007
(iii)	11 June 2007	21 August 2007
(iv)	26 August 2007	28 August 2007
(v)	3 September 2007

 

19.  According to the applicant, he did not receive copies of all the refusals to institute criminal proceedings against the officers.

20.  According to the refusal of 11 June 2007, police officers M., D., K., Sh., and B. denied ill-treating the applicant. They alleged that no physical force or special devices had been applied to him on 20 April 2007. After the applicant had given his explanation concerning his involvement in drug dealing, he was taken to his grandparents’ summer house, which the applicant had said had been a place where he had hidden drugs, while it was being searched.

21.  On 13 August 2007 the applicant’s case in the criminal proceedings against him was transferred to the Oktyabrskiy District Court of Belgorod for trial.

22.  The most recent refusal to open a criminal case against the police officers was issued on 3 September 2007 under Article 24 § 1 (2) of the Code of Criminal Procedure (“the CCrP”) on account of the absence of constituent elements of a crime in the officers’ actions. It referred in particular to the officers’ denial of the applicant’s ill-treatment. It also referred to the forensic medical expert report of 23 April 2007 and stated, without providing any further details, that the applicant’s injuries might have been caused by his own “imprudent actions”.

23.  On 25 September 2007 the applicant appealed against the refusal of 3 September 2007 to the Oktyabrskiy District Court in accordance with Article 125 of the CCrP. On 28 September 2007 his appeal was received by the District Court which admitted it to the case file for examination during the trial.

24.  On 9 November 2007 the applicant appealed to the Belgorod town prosecutor’s office against the refusal to institute criminal proceedings into his complaints against the police officers. Having received a negative reply from the prosecutor’s office, on 21 November 2007 the applicant lodged a court appeal complaining about the prosecutor’s inaction.

25.  The applicant’s other complaints, in particular that at 1 p.m. on 20 April 2007 he had been unlawfully arrested on suspicion of having committed the criminal offence of drug dealing and detained until 6.10 p.m., that he had not been informed of his rights as a suspect and had not received access to a lawyer, were not examined by the Oktyabrskiy District Court under Article 125 of the CCrP on the grounds that they could be examined during the applicant’s trial (the District Court’s decision of 4 December 2007 was upheld by the Belgorod Regional Court on 23 January 2008).

26.  On 11 December 2007 the Oktyabrskiy District Court convicted the applicant for the attempted sale of drugs to V.G. on 18 April 2007 and acquitted him of the remaining charges, in particular those related to the police operation of 20 April 2007, which it found to have been entrapment. It sentenced him to two years’ imprisonment. The trial court dismissed the applicant’s allegations of ill-treatment, endorsing the results of the investigating authority’s pre-investigation inquiry into his complaints and the most recent refusal, of 3 September 2007, to open a criminal case against the officers, which the court found to be lawful and well-founded.

27.  The applicant and the prosecution appealed against the judgment. On 27 February 2008 the Belgorod Regional Court allowed the prosecutor’s appeal and quashed the judgment of 11 December 2007, finding the trial court’s reasoning in acquitting the applicant and sentencing him flawed.

28.  On 14 April 2008 the Oktyabrskiy District Court dismissed the applicant’s appeal of 21 November 2007, holding that the pre-trial stage of the criminal proceedings against the applicant had been completed and his case was awaiting examination by the trial court, and that it would be open to the applicant to raise his complaints about the prosecutor’s inaction during the trial of his criminal case. That decision was upheld on appeal on 21 May 2008.

29.  On 7 May 2008 the Oktyabrskiy District Court, having established the facts as shown in paragraphs 5 and 6 above, convicted the applicant of sale of drugs to V.G. on 18 April 2007, attempted sale of drugs to V.G. on 20 April 2007 during the test purchase conducted by the police, and preparation for a sale of drugs in relation to the drugs found in his car on the same date, and sentenced him to two years and six months’ imprisonment. The applicant pleaded guilty to the charges on which he was convicted. He did not appeal against that judgment, which came into effect on 26 May 2008.

RELEVANT LEGAL FRAMEWORK

30.  Under Article 91 § 1 of the Code of Criminal Procedure (“the CCrP”), as in force at the material time, an investigating authority or a prosecutor could arrest a person on suspicion of a criminal offence punishable with a prison term in the following circumstances: (i) where the person had been arrested during or immediately after committing the offence; (ii) where a crime victim or an eyewitness had identified the person as the perpetrator of the crime; or (iii) where manifest evidence of the crime had been discovered on the person’s body, clothes, belongings or in his or her residence. In other situations disclosing suspicion against a specific person, it was possible to arrest him or her in a situation where he or she had attempted to flee; had no fixed place of residence; his or her identity had not been established; or where an application had been lodged for judicial authorisation to remand the suspect in custody (Article 91 § 2 of the CCrP).

31.  Following the escorting of the person before the investigating authority or the prosecutor, it was necessary to draw up, within three hours, an arrest record, noting that the arrestee had been apprised of his or her procedural rights. The arrest record had to indicate the time and date it had been drawn up; the time, date, place and grounds for the arrest; and other circumstances of the arrest. It had to be signed by the official who had drawn it up and the suspect (Article 92 §§ 1 and 2 of the CCrP). Written notice had to be given to a prosecutor within twelve hours and the suspect was to be given access to a lawyer and questioned (Article 92 §§ 3 and 4 of the CCrP).

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

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

33.  The applicant complained that, while he had actually been arrested on suspicion of having committed a criminal offence, his deprivation of liberty between 1 p.m. and 6.10 p.m. on 20 April 2007 had not been recorded as such. His deprivation of liberty had only been recorded from 6.10 p.m. in the administrative proceedings against him. He relied on Article 5 of the Convention, which reads in the relevant part 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:

(a)  the lawful detention of a person after conviction by a competent court;

(b)  the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation 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;

(d)  the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e)  the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f)  the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. ...”

34.  The Government disagreed, stating that the applicant’s detention had not fallen under Article 5 § 1 (c).

A.    Admissibility

35.  The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.     Merits

36.  The Court reiterates that any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law, but must equally be in keeping with the very purpose of Article 5, namely, to protect the individual from arbitrariness. What is at stake is both the protection of the physical liberty of individuals as well as their personal security in a context which, in the absence of safeguards, could result in subversion of the rule of law and place detainees beyond the reach of the most rudimentary forms of legal protection (see Kurt v. Turkey, 25 May 1998, § 123, Reports of Judgments and Decisions 1998‑III; and Fartushin v. Russia, no. 38887/09, § 50, 8 October 2015).

37.  It is not disputed by the Government that the reason for the applicant’s arrest at around 1 p.m. on 20 April 2007 was his attempted sale of drugs to V.G. during a test purchase operation organised by the police, that is to say a criminal offence with which he was subsequently charged and convicted. However, he was formally arrested as a suspect in those criminal proceedings only on 25 April 2007. The Court takes note of the relevant domestic law (see paragraphs 30-32 above), which expressly provided that a record of arrest had to be drawn up within three hours of the time the suspect was escorted by the authorities.

38.  With regard to the complaint as submitted by the applicant, the Court therefore concludes that between around 1 p.m. and 6.10 p.m. on 20 April 2007 the applicant was detained in police custody on suspicion of having committed a criminal offence without any record of his arrest.

39.  The foregoing considerations are sufficient for the Court to conclude that his detention was unlawful and amounted to a violation of Article 5 § 1 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

40.  The applicant complained that he had been subjected to torture by police officers of the Belgorod regional branch of the Federal Service for Drug Control, and that no effective investigation had been conducted 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.”

41.  The Government denied a violation of Article 3.

A.  Admissibility

42.  The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.  Merits

43.  The Court has found above that the applicant was unlawfully held in police custody between 1 p.m. and 6.10 p.m. on 20 April 2007. During this time he was allegedly subjected to ill-treatment by the police officers who interviewed him about his involvement in drug dealing and obtained his self-incriminating statements. He remained in detention until 27 April 2007. While still in detention he was examined by a forensic medical expert who recorded a “dotted” haemorrhage in the eyelids and subconjunctival haemorrhages in both eyes. After his release he was found to have sustained other bodily injuries confirmed by medical evidence. The Court considers that the injuries are consistent with the applicant’s allegations, notably the haemorrhages in both eyes could arguably have resulted from the applicant being chocked by the police officers and the contusions of the right kidney and the lumbar region from his being punched and hit by them. His allegations are also supported by the applicant’s photograph, taken on 28 April 2007 at a photographer’s studio, which shows signs of blood effusion into both eyes.

44.  The above factors are sufficient to give rise to a presumption in favour of the applicant’s account of events and to satisfy the Court that the applicant’s allegations of ill-treatment in police custody were credible.

45.  The fact that the alleged ill-treatment took place during the applicant’s unrecorded detention attests to the applicant’s particular vulnerability vis-à-vis the police officers and lends further credence to his story. The Court reiterates that it has dealt with many applications against Russia concerning ill‑treatment in police custody that have exposed a systemic problem of delay in documenting the arrest and the status of detained individuals as suspects, during which time detainees were interviewed without access to a lawyer, were denied other rights of suspects, and fell victim to police abuse (see Olisov and Others v. Russia, nos. 10825/09 and 2 others, §§ 78-79, 2 May 2017).

46.  The Court further observes that the applicant’s allegations of his injuries having been the result of the ill-treatment by police officers were dismissed by the investigating authority on the basis of the denial of the applicant’s ill-treatment by those same police officers. It offered no explanation regarding the applicant’s injuries, except for vaguely referring to his own “imprudent actions” as their possible cause without providing any details.

47.  The investigating authority based its 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). 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 the whole range of investigative measures may be carried out, including the questioning of witnesses, confrontations and identification parades (ibid., §§ 132-37).

48.  The Court has no reason to hold otherwise in the present case. It finds that the investigating authority failed to carry out an effective investigation into the applicant’s allegations of police ill-treatment, as required by Article 3 of the Convention.

49.  Given that the Government’s denial of the State’s responsibility for the applicant’s injuries was based on the results of superficial domestic pre-investigation inquiries, which fall short of the requirements of Article 3 of the Convention, the Court holds that the Government have failed to discharge their burden of proof and produce evidence capable of casting doubt on the applicant’s account of events, which it therefore finds established (see Olisov and Others, cited above, §§ 83-85, and Ksenz and Others v. Russia, nos. 45044/06 and 5 others, §§ 102-04, 12 December 2017).

50.  As regards the classification of the applicant’s treatment by the police officers, it observes that the applicant suffered various acts of physical violence including being choked, punched and hit. Such treatment caused him actual bodily harm, notably haemorrhages in both eyes and contusions of the right kidney and lumbar region, and intense physical and mental suffering. The applicant was intentionally subjected to the treatment described above with the aim of extracting his self-incriminating statements.

51.  The Court finds that the treatment to which the applicant was subjected at the hands of the police amounted to torture (see Gäfgen v. Germany [GC], no. 22978/05, § 90, ECHR 2010).

52.  The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 3 of the Convention under its substantive and procedural limbs.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

53.  Lastly, the applicant complained that the authorities had failed to carry out an effective investigation into his complaint, failing to provide him with an effective remedy as required by Article 13, which 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.”

54.  The Government argued that the applicant had availed himself of effective domestic remedies in respect of his complaint under Article 3.

55.  The Court notes that this complaint is linked to the issue raised under the procedural aspect of Article 3 of the Convention and must therefore likewise be declared admissible.

56.  In view of its finding of a violation of Article 3 under its procedural head (see paragraph 48 above), the Court does not find it necessary to examine separately, under Article 13 of the Convention, the applicant’s complaint concerning the lack of an effective investigation into his ill‑treatment on 20 April 2007.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

57.  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.”

58.  The applicant claimed 500,000 euros (EUR) in respect of non‑pecuniary damage. He also claimed EUR 7,300 in respect of legal costs and postal expenses in the proceedings before the Court, to be paid to the bank account of his representative.

59.  The Government stated that any decision should be made in accordance with Convention case-law.

60.  Having regard to the violations found, the Court awards the applicant EUR 30,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

61.  The Court further reiterates that under its case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award EUR 900 covering costs under all heads, plus any tax that may be chargeable to the applicant, to be paid to the bank account of the applicant’s representative.

62.  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 separately the complaint under Article 13 of the Convention;

5.      Holds

(a)   that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 30,000 (thirty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 900 (nine hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts 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 1 December 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova                                                                    Darian Pavli
Deputy Registrar                                                                       President