Last Updated on May 11, 2019 by LawEuro
Communicated on 19 November 2018
THIRD SECTION
Application no. 31236/17
Ruslan Khalilyevich VAKHAPOV and Others
against Russia
lodged on 26 April 2017
STATEMENT OF FACTS
The applicants, Mr Ruslan KhalilyevichVakhapov born in 1981(the first applicant), Mr Ivan AndreyevichNepomnyashchikh born in 1990 (the second applicant), and Mr YevgeniyAleksandrovich Makarov born in 1993 (the third applicant) are Russian nationals who were detained at the material time in a correctional colony no. IK-1 in the Yaroslavl Region (hereinafter “IK-1”). They are represented before the Court by Mrs I. Biryukova, a lawyer with the Moscow Bar.
The facts of the case, as submitted by the applicants, may be summarised as follows.
A. The applicants’ alleged ill-treatment
1. Events of 21 April 2017
At around 9 a.m. on 21 April 2017 routine searches were performed in IK-1 in the course of which the penitentiary officers and the officers of the specialised unit (“спецназ”, hereinafter “unit officers”) beat the applicants and other detainees with truncheons, kicked and punched them. The applicants provided the following specific allegations concerning their beatings.
Mr Vakhapov as part of one of the colony’s units came to the drill ground where a search was to be performed. At the drill ground he saw that there were no penitentiary officers, but only unit officers. One unit officer drew him aside to the fence and leaned him spread-eagled against it. Then another unit officer came and the two of them turned him around, put his hands behind his back and hit him in the stomach twice with the handle of his truncheon. Then the unit officers brought Mr Vakhapov to IK-1’s school building, his hands still behind his back, pushed him onto the concrete steps and kicked his back, legs, chest, left ear, as a result of which Mr Vakhapov struck his head against the concrete steps. Then his hands were handcuffed behind his back, and the unit officers dragged him by his wrists to a duty unit. There he was pushed on the floor and the same two unit officers beat his legs and hips with their truncheons. Then a penitentiary officer came and ordered the unit officers to stop the beatings.
Mr Nepomnyashchikh was held in the punishment cell when penitentiary officers came and gave several orders. He complied and then went into the corridor. There he was told to run along the corridor. He considered this order unlawful and refused to comply. In response the penitentiary officers slapped his neck several times. Mr Nepomnyashchikh was made to walk along the corridor three times. After that he was brought to a store room with his hands bent behind his back, and was pushed against the wall. Several penitentiary officers entered the room. One, who was wearing a mask, punched the left side of Mr Nepomnyashchikh’s face. Other penitentiary officers beat him with truncheons and punched him all over his body. Then they lifted him up by his hands and legs with his head down, beat him with truncheons and kicked the insides of his thighs. Then he was brought to a search room where he was searched before being taken into the corridor and spread-eagled against the wall. The penitentiary officers kicked his right foot several times, his legs slid apart and he pulled his groin muscles. Then he was brought to the search room again, and a second search was performed. On the way back to his cell a penitentiary officer hit him in the stomach with his truncheon, other penitentiary officers beat him with truncheons and kicked the small of his back and buttocks.
Mr Makarov was pushed on the floor by unit officers who kicked and beat him with truncheons, stepped on his neck and face, lifted his legs and beat his buttocks with their truncheons.
According to the information provided by the Government on 4 May 2017 in response to the Court’s request for information of 28 April 2017, the applicants resisted lawful orders of the administration of IK-1 and prevented the officers from carrying out a search, and special means and physical force were applied lawfully.
2. Medical evidence
It results from the medical certificates established on 21 April 2017 by the medical assistants of the IK-1 that the following injuries were found on the applicants:
– on Mr Vakhapov: a 2 cm by 2 cm hematoma on the right side of the forehead, abrasions on both wrists and a 25 cm by 30 cm hematoma on the upper part of the left hip. As indicated in the medical certificate the applicant’s examination was conducted after the application of the special means and physical force to him. Painkillers were prescribed to the applicant.
– on Mr Nepomnyashchikh: a hematoma on the back side of the left wrist, an abrasion on the left cheekbone and a hematoma on the upper side of the right hip. No circumstances leading to the applicant’s injuries were indicated in the medical certificate.
– on Mr Makarov: hematomas on the back sides of both hips and cuts on both forearms. As indicated in the medical certificate the applicant’s examination was conducted after the application of the special means to him. Aseptic bandages were applied on the cuts.
3. The applicants’ request for interim measures
On 24 April 2017 the applicants’ representatives including Mrs Biryukova, visited them in IK-1, but were not allowed to have a confidential meeting with them and to make video and photo recordings of them.
On 26 April 2017 Mrs Biryukova requested the Court under Rule 39 of the Rules of Court:
– to conduct the applicants’ urgent medical examination by medical doctors from outside the correctional colony;
– to allow lawyers to use video and photo equipment;
– to order immediate and effective investigation into the allegations of ill‑treatment; and
– to take measures to ensure the applicants’ safety.
On 27 April 2017 the Court decided to indicate to the Russian Government, under Rule 39, that the applicants be immediately (within 48 hours) examined by medical doctors independent from the Russian Federal Penal Authority, that the Russian Government provide the Court with a medical certificate describing the applicants’ current state of health issued by these medical doctors, and that they ensure that the applicants have effective and unhindered access to the Court and their lawyers, in particular, Mrs Biryukova, Mr Iontsev and Mr Sharov. The Court also asked the Government to submit factual information whether the applicants underwent medical examination following the search in the correctional colony on 21 April 2017 and whether the applicants filed any complaints as regards their ill-treatment on the same day.
On 28 April 2017 the applicants were examined by a commission of three doctors (physician, surgeon and ophthalmologist) from different hospitals of Yaroslavl. No injuries were found on Mr Vakhapov (medical examination certificate no. 30) and Mr Nepomnyashchikh (medical examination certificate no. 29), the following injuries were found on Mr Makarov: cuts on both forearms, according to the applicant self-inflicted on 21 February 2017, and minor hypodermic hematomas on the back of his hips (medical examination certificate no. 31).
According to Mr Vakhapov and Mr Nepomnyashchikh, the doctors did not ask them to undress from the waist down and consequently did not examine all their injuries they had.
B. Investigations into the applicants’ allegations of ill-treatment
On 28 April 2017 the applicants’ lawyer, Mrs Biryukova, complained to the prosecutor’s office about the applicants’ ill-treatment during the search carried out on 21 April 2017.
The Zavolzhskiy investigative department of the Investigative Committee of the Yaroslavl Region started a pre-investigation inquiry.
On 25 October 2017 the latest refusal to institute criminal proceedings in respect of the applicants’ allegations of ill-treatment was delivered. According to the investigator, the force used by penitentiary officials was proportionate to the applicants’ behaviour; the latter continued to resist the lawful orders of the penitentiary officers and did not react to the warning that force and special means could be used against them.
The applicants challenged the investigator’s decision of 25 October 2017 before the Zavolzhskiy District Court. They complained, inter alia, that the investigator had not taken into account their testimonies that they had been ill-treated not only by the penitentiary officers but also by the officers of the specialised unit, that he had not questioned all the officers identified by them and by other inmates present during their ill-treatment, that he had not established whether the officers had had portable video recording devices during the search, whether the prosecutor had been immediately informed about the use of special means and physical force against the applicants and had been shown the data from the potable video recording devices, and that the medical experts had not established possible relation between the applicants’ injuries and the description of the beatings contained in the testimony of the penitentiary officers.
On 29 December 2017 the District Court dismissed the applicants’ complaint on the grounds that the refusal to institute criminal proceedings was reasoned and was delivered by a competent authority.
On 1 March 2018 the Yaroslavl Regional Court upheld the decision of the District Court on appeal. It noted, inter alia, that according to the information provided by the Department of the Federal Service on the Execution of Sentences in the Yaroslavl Region the officers of the specialised unit had not used special means and physical force in the course of the search of 21 April 2017 in IK-1.
C. Latest developments
It appears that the applicants were released on 9 June 2018, on unspecified date in August 2017 and on 2 October 2018, respectively.
D. Relevant domestic law
1. Code on Execution of Punishments (no. 1-FZ of 8 January 1997)
Detainees and the premises where they live may be searched (Article 82 §§ 5 and 6).
Physical force, special means or weapons may be used against detainees if they offer resistance to the officers, persistently disobey lawful demands of the officers, engage in riotous conduct, take part in mass disorders, take hostages, attack individuals or commit other publicly dangerous acts, escape from the penitentiary institution or attempt to harm themselves or others (Article 86 § 1). The procedure for application of these security measures is determined in the Russian legislation (Article 86 § 2).
2. Penitentiary Institutions Act (no. 5473-I of 21 July 1993)
When using physical force, special means or weapons, the penitentiary officers must:
(1) state their intention to use them and afford the detainee(s) sufficient time to comply with their demands unless a delay would imperil life or limb of the officers or detainees;
(2) ensure the least possible harm to detainees and provide medical assistance;
(3) report every incident involving the use of physical force, special means or weapons to their immediate superiors (section 28).
Rubber truncheons may be used for:
(1) putting an end to assaults on officers, detainees or civilians;
(2) repressing mass disorders or group violations of public order by detainees, as well as for apprehension (задержание) of offenders who persistently disobey or resist the officers (section 30).
COMPLAINTS
The applicants complain under Articles 3 and 13 of the Convention that they were ill-treated in IK-1 on 21 April 2017, and that the authorities failed to conduct an effective investigation in that respect.
QUESTIONS TO THE PARTIES
1. Were the applicants subjected to treatment contrary to Article 3 of the Convention in IK-1 on 21 April 2017?
As regards the Government’s burden of proof
(a) have the domestic authorities discharged their burden of proof by providing a plausible or satisfactory and convincing explanation on how the applicants’ injuries had been caused (see Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999‑V, and Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000‑VII)? In particular,
– did the penitentiary officers report to their supervisor about the use of physical force and special means during the search activities (see Shamardakov v. Russia, no. 13810/04, § 133, 30April 2015)?
– if so, did the reports provide detailed explanation about the circumstances of the applicants’ behaviour and the penitentiary officers’ response, including the use of physical force and special means against them (see Türkan v. Turkey, no. 33086/04, § 48, 18 September 2008)?
The Government are invited to produce documentary evidence, including the reports drawn up by penitentiary officers about the circumstances of their use of physical force and special means against the applicants.
As regards the necessity and the proportionality of the force used
(b) was the recourse to physical force made strictly necessary by the applicants’ own conduct (see Dedovskiy and Others v. Russia, no. 7178/03, §§ 82-83, ECHR 2008 (extracts); Gladović v. Croatia, no. 28847/08, §§ 53‑54, 10 May 2011; and Rizvanov v. Azerbaijan, no. 31805/06, § 49, 17 April 2012)? In particular,
– did the penitentiary officers plan the search activities in advance?
– did they have sufficient time to evaluate the possible risks and to take all necessary measures for carrying out the applicants’ search (see Tali v. Estonia, no. 66393/10, § 76, 13 February 2014;Rehbock v. Slovenia, no. 29462/95, § 72, ECHR 2000‑XII;Grigoryev v. Russia, no. 22663/06, § 83, 23 October 2012; Davitidze v. Russia, no. 8810/05, § 90, 30 May 2013; and Minikayev v. Russia, no. 630/08, §§ 59-60, 5January 2016)?
2. Did the authorities carry out an effective official investigation into the applicants’ allegations of ill-treatment on 21 April 2017 as required by Article 3 of the Convention (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000‑IV, and Lyapin v. Russia, no. 46956/09, §§ 125-40, 24 July 2014)?
In particular, in cases in which the applicants’ searches were carried out by masked officers, did they display visibly some anonymous signs allowing their identification and questioning in the event of challenges to the manner in which the search was conducted (see Hristovi v. Bulgaria, no. 42697/05, § 92, 11 October 2011, andAnzheloGeorgievand Others v. Bulgaria, no. 51284/09, § 73, 30 September 2014)?
3. Did the applicants have at their disposal an effective domestic remedy or a combination of remedies for their complaints under Article 3 of the Convention, as required by Article 13 of the Convention?
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