Last Updated on May 24, 2019 by LawEuro
Communicated on 7 September 2018
THIRD SECTION
Application no. 32901/15
Aleksey Viktorovich SHINDYASOV
against Russia
lodged on 15 June 2015
STATEMENT OF FACTS
The applicant, Mr Aleksey Viktorovich Shindyasov, is a Russian national, who was born in 1991 and lives in Saransk.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The applicant’s arrest and alleged ill-treatment
According to the applicant, at around 1.30 a.m. on 1 December 2013 his friend was arrested outside the night club by the police officers, and the applicant decided to accompany his friend to the police station in a police car.
According to the police report of 1 December 2013, at around 1.30 a.m. on 1 December 2013 the applicant was arrested outside the night club without identity documents.
At around 2.00 a.m. on the same day the applicant was brought to the police station no. 3 of the Leninskiy District of Saransk (отдел полиции № 3 УМВД России по Ленинскому району городского округа Саранска). There he was handcuffed.
Then still at around 2.00 a.m. the police officer Mr B. took the applicant to a room where he punched him in the nose and kicked all over his body. The same police officer took the applicant to the cell for administrative offenders, continuing to beat him on the way to the cell.
At around 5.30 a.m. the same police officer took the applicant from the cell out and took a photo of him.
At around 5.40 a.m. the applicant was taken by the police officer Mr L. to a narcological dispensary where he was examined for a state of intoxication and his injuries were recorded. Then the applicant was brought back to the police station.
At around 11 a.m. the applicant was brought to the investigative committee of the Leninskiy District of Saransk (следственный отдел по Ленинскому району г. Саранска).
At 9.40 p.m. an arrest record was drawn up.
Between 10.05 p.m. on 1 December 2013 and 3.00 a.m. on 2 December 2013 the investigator Mr S. interviewed the applicant as a suspect into the fact of him using violence against police officers. During the interview the applicant stated that he had been beaten up by the police officer.
According to the applicant, he asked the police officers many times to call an ambulance, but his requests were ignored.
At around 3.00 a.m. on 2 December 2013 the applicant was taken to a temporary detention facility (IVS) of the Ministry of Interior of the Republic of Mordovia. On his placement to the IVS a police officer on duty recorded his injuries.
At 11.20 a.m. on 3 December 2013 the applicant was taken to a forensic medical examination bureau where he underwent a forensic medical examination ordered by the investigator on the same day in the course of the inquiry into the applicant’s use of violence against the police officers.
On the same day the applicant was taken to the Leninskiy District Court of Saransk that ordered the applicant be placed under home arrest. The applicant complained orally to the judge that he had been beaten up by a police officer.
On 5 December 2013 the applicant made a written complaint to the police about the incident of beatings.
Between 5 December 2013 and 14 December 2013 the applicant underwent an inpatient treatment in the hospital.
2. Medical evidence
At 5.50 a.m. on 1 December 2013 the applicant was examined in the narcological dispensary for a state of intoxication. The following injuries on his body were recorded: a fresh bruise of the nose, nasal septum deviation to the right, displacement of occlusion to the right. According to the applicant, he told the medical personnel that he had been beaten up by the police officer.
At 3.25 a.m. on 2 December 2013 the following injuries were recorded on the applicant by the police officer on duty before the applicant’s placement to the IVS: bruises on the wrists, abrasions on the back of the head, swelling of the bridge of nose. The applicant explained to the police officer on duty that he had been beaten up when in police custody.
At 11.20 a.m. on 3 December 2013 the applicant underwent a forensic medical examination. The expert was asked whether the applicant had any injuries, and if so, what were their location, mechanism of formation, degree of damage to health and time they were inflicted.
According to the forensic medical examination report no. 1988 (ОЖЛ) established on 11 December 2013, the applicant told the expert that he had been punched in the face and kicked in the body at around 1.00 a.m. on 1 December 2013, there is no indication in the report as to who had beaten the applicant. The following injuries on his body were recorded: an abrasion on the back of his head and a bruise on the dorsum of the nose that were not considered as causing damage to health. The injuries were caused by hard blunt objects, and could have been inflicted on 1 December 2013.
According to the extract from the applicant’s medical card, he underwent inpatient treatment at the hospital between 5 December 2013 and 14 December 2013 with a diagnosis of closed fracture of the nose. On 9 December 2013 the applicant had an operation on the nose.
3. Pre-investigation inquiry and refusal to institute criminal proceedings
(a) Pre-investigation inquiry
Over a period of 2013-2014 investigators of the investigative committee of the Leninskiy District of Saransk carried out a pre-investigation inquiry into the alleged ill-treatment of the applicant and issued four refusals to open a criminal case. These refusals were revoked by the prosecutor’s office and domestic courts as based on incomplete inquiry.
The most recent refusal to open a criminal case was issued by the investigator Mr Sh. on 10 November 2014. The investigator questioned the applicant, his friend whom he had accompanied to the police station, the police officers who arrested him, police officer Mr B. who allegedly had beaten the applicant, police officers of the IVS, doctor of the narcological dispensary, referred to the IVS records and to the medical examination report according to which the applicant sustained injuries on 1 December 2013. The investigator found that the applicant was arrested and brought to the police station as he had assaulted the police officers, that the applicant had already had injuries when he had been brought to the police station, which he could have sustained in a fight with unknown persons before his arrest. The investigator also referred to the explanation given by the doctor of the narcological dispensary that the applicant told him that he had been injured in a fight on the street, and to the criminal case opened on 16 June 2014 against unknown persons into the applicant being beaten up outside the night club on 1 December 2013.
(b) Judicial review of the investigators’ decisions under Article 125 of the Code of Criminal Procedure
The applicant appealed against the refusal to open a criminal case of 10 November 2014 to the District Court.
On 1 December 2014 the District Court upheld the refusal to open a criminal case. The District Court endorsed the reasoning of the refusal, held that the investigator had carried out all the necessary investigative actions in time, questioned all the interested persons, and thus the refusal to open a criminal case of 10 November 2014 was lawful and well-grounded.
On 19 January 2015 the Supreme Court of the Republic of Mordovia upheld the decision of the District Court. It held that the refusal to open a criminal case was issued by an authorized person, was well-founded and lawful.
4. Criminal proceedings against the applicant
On 1 December 2013 criminal proceedings were instituted against the applicant into the fact of him using violence against police officers. The applicant did not provide information on the outcome of the criminal proceedings.
B. Relevant domestic law and practice
Article 144 of the Code of Criminal Procedure, as amended by Federal Law no. 23-FZ of 4 March 2013, reads in the relevant part as follows:
Article 144. Procedure for examining a report of a crime
“1. [A pre-investigation] inquiry officer, [an] agency [responsible for such an inquiry], [an] investigator, or [a] head of an investigation unit shall accept and examine every report of a crime … and shall take a decision on that report … no later than three days after [receiving] the report … [They have] the right to receive explanations, samples for comparative examination, request documents and objects, seize them …, order forensic examinations, participate in the carrying out [of such examinations] and receive an expert’s report within a reasonable time, carry out an inspection of a crime scene, documents, objects, [and/or] dead bodies, physical examination, request documentary inspections, revisions, examination of documents, objects, dead bodies, engage specialists in carrying out these actions, give an inquiry agency mandatory written instructions on carrying out operative and investigative measures …
3. A head of an investigation unit or head of an [pre-investigation] inquiry agency … may extend the time period specified in paragraph (1) of this Article to [a maximum of] ten days. Where the documentary inspections, revisions, forensic examinations, examination of documents, objects or dead bodies, as well as operative and investigative measures are to be performed, a head of an investigation unit … or a prosecutor … may extend this period [to a maximum of] thirty days …”
Section VIII of the Code of Criminal Procedure, which regulates preliminary investigation, provides, inter alia, (after amendments by Federal Law no. 23-FZ of 4 March 2013) that such investigative measures as an inspection of a crime scene, documents and/or objects, a forensic examination and receipt of samples for a comparative examination may be ordered and/or carried out, as applicable, before a criminal case is opened (Articles 176 § 2, 195 § 4 and 202 § 1 of the Code).
The Instruction on the police officers’ execution of their obligations and rights in the police departments of the Ministry of the Interior after the persons are taken to the police custody (approved by the order no. 389 of the Ministry of the Interior of the Russian Federation on 30 April 2012) provides that
– a police officer on duty in the police custody shall inform his superior about all the cases when a person arrested and taken to the police custody has visible wounds, injuries or is in the state that requires urgent medical intervention;
– a police officer shall call an ambulance or take a person to a nearby hospital;
– a police officer shall find out the reasons and circumstances of the injuries sustained by the person concerned. In case the person concerned reports about violent actions that resulted in his injuries then the police officer shall receive a criminal complaint from the person, if not, then he shall draw up a reasoned report and register it in the Register of the criminal complaints.
The Instruction on health-care provision of the detainees in the temporary detention facilities (IVS) of the Ministry of Interior (approved by the joint order no. 1115/475 of the Ministry of the Interior and the Ministry of Health of the Russian Federation on 31 December 1999) provides that
– an initial medical inspection of the detainees in the IVS shall be carried out within the first twenty-four hours to determine those in need of medical care;
– the inspection shall be carried out by the medical staff in the medical room, in the absence of the medical staff the inspection shall be carried by a police officer on duty;
– the results of the inspection shall be recorded in a medical register;
– in case the detainee complains about the state of his health and has signs of injuries, diseases a police officer on duty shall call the medical staff of the IVS or ambulance.
COMPLAINTS
The applicant complains under Articles 3 and 13 that he was beaten up by the police officer while in police custody on 1 December 2013 and that the authorities failed to conduct an effective investigation in this respect.
QUESTIONS TO THE PARTIES
1. Having regard to the injuries found on the applicant after the time spent by him in State custody, has the applicant been subjected to torture, or inhuman or degrading treatment, in breach of Article 3 of the Convention (see, among other authorities, Razzakov v. Russia, no. 57519/09, 5 February 2015; Gorshchuk v. Russia, no. 31316/09, 6 October 2015; Turbylev v. Russia, no. 4722/09, 6 October 2015; Fartushin v. Russia, no. 38887/09, 8 October 2015; Aleksandr Andreyev v. Russia, no. 2281/06, 23 February 2016; and Leonid Petrov v. Russia, no. 52783/08, 11 October 2016)?
2. Have the authorities discharged their burden of proof by providing a plausible or satisfactory and convincing explanation of how the applicant’s injuries were caused (see Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999‑V; Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000‑VII; and Bouyid v. Belgium [GC], no. 23380/09, § 83 and further, ECHR 2015)? In particular,
– does the Russian legislation and/or regulatory framework provide for an obligation to take an apprehended person without delay before a medical professional, notably with a view of recording the injuries sustained by an apprehended person prior or during the arrest (Türkan v. Turkey, no. 33086/04, §§ 41-42, 18 September 2008, and Korobov v. Ukraine, no. 39598/03, § 70, 21 July 2011)?
– if so, was this obligation complied with in the present case, especially taking into account the police officers’ statements in the refusal to open a criminal case of 10 November 2014 that the applicant had had visible bruises on his face and blood on his clothes at the moment of arrest (Mammadov v. Azerbaijan, no. 34445/04, § 65, 11 January 2007)?
3. Did the authorities carry out an effective official investigation into the applicant’s allegations of ill-treatment in police custody 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, was the forensic medical examination of the applicant carried out on 3 December 2013 in compliance with the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment’s (CPT) standards, which are regularly taken into account by the Court in its examination of cases concerning ill-treatment (see Özgür Uyanık v. Turkey, no. 11068/04, § 36, 23 March 2010; Barabanshchikov v. Russia, no. 36220/02, §§ 48, 59, 8 January 2009; and Ochelkov v. Russia, no. 17828/05, § 103, 11 April 2013).
The Government are invited to produce documentary evidence, including the reports drawn up by police officers about the circumstances of the applicant’s arrest, certificates or extracts from the records of the detention facilities on medical examinations of the applicant on arrival at police custody, IVS, SIZO, records of medical facilities (including the act no. 1422 (M) of 30 December 2013), the investigator’s decision to order the applicant’s forensic medical examination, the applicant’s and the police officers’ explanations of the origin of the applicant’s injuries which formed the basis of the experts’ assessments, and so forth.
4. Did the applicant have at his disposal an effective domestic remedy or a combination of remedies for his complaints under Article 3 of the Convention, as required by Article 13 of the Convention?
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