THIRD SECTION
\nCASE OF KONYAYEV v. RUSSIA
\n(Application no. 9759\/09)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n26 March 2019<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Konyayev v. Russia,<\/strong><\/p>\n The European Court of Human Rights (Third Section), sitting as a Committee composed of:<\/p>\n Alena Pol\u00e1\u010dkov\u00e1, President, Having deliberated in private on 5 March 2019,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 9759\/09) against the Russian Federation lodged with the Court under Article\u00a034 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a stateless person, Mr Sergey Nikolayevich Konyayev (\u201cthe applicant\u201d), on 31 December 2008.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mr D.A. Yershov, a lawyer practising in Ryazan. The Russian Government (\u201cthe Government\u201d) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.<\/p>\n 3.\u00a0\u00a0On 29\u00a0September 2016 notice of the complaints concerning the applicant\u2019s alleged ill-treatment in police custody and the authorities\u2019 failure to carry out an effective investigation into his complaints were given to the Government and the remainder of the application was declared inadmissiblepursuant to Rule\u00a054\u00a0\u00a7\u00a03 of the Rules of Court.<\/p>\n THE FACTS<\/strong><\/p>\n THE CIRCUMSTANCES OF THE CASE<\/strong><\/p>\n 4.\u00a0\u00a0The applicant was born in 1969 and is currently serving a prison sentence.<\/p>\n A.\u00a0\u00a0The applicant\u2019s arrest and alleged ill-treatment in police custody<\/strong><\/p>\n 5.\u00a0\u00a0At around 5 a.m. on 13 May 2006 the applicant was arrested on suspicion of robberies by officers of the police unit for combating organised crime in the Ryazan region (\u0423\u0411\u041e\u041f \u043f\u0440\u0438 \u0423\u0412\u0414 \u043f\u043e\u0420\u044f\u0437\u0430\u043d\u0441\u043a\u043e\u0439\u043e\u0431\u043b\u0430\u0441\u0442\u0438 \u2013 \u201cthe organised crime unit\u201d), assisted by officers of the special rapid response unit of the Ryazan region (\u0421\u041e\u0411\u0420 (\u041e\u041c\u0421\u041d) \u0423\u0412\u0414 \u0420\u044f\u0437\u0430\u043d\u0441\u043a\u043e\u0439\u043e\u0431\u043b\u0430\u0441\u0442\u0438 \u2013 \u201cthe rapid response unit\u201d).<\/p>\n 6.\u00a0\u00a0The applicant\u2019s account of subsequent events is the following. He was taken to the Moskovskiy district police station of Ryazan, where the (unnamed) police officers beat him for an hour, forcing him to confess to carrying weapons.\u00a0He was then taken to the organised crime unit, located at a different address, where police officers N.A. and I.O. physically assaulted him and subjected him to electric shocks in a gym. Two other (unnamed) police officers of the rapid response unit then continued physically assaulting him, chained his handcuffs to some exercise equipment, pinched his nose and sprayed tear gas into his mouth to force him to confess to robberies and assaults.\u00a0On the evening of 13 May 2006 the applicant was taken to the Zheleznodorozhnyy district police station of Ryazan.<\/p>\n 7.\u00a0\u00a0At 7.40 p.m. on 13 May 2006 investigator A.A. from the investigation unit of the Zheleznodorozhnyy district police department drew up a record of the applicant\u2019s arrest. The record indicates that the applicant was arrested at 7\u00a0p.m. that day.<\/p>\n 8.\u00a0\u00a0According to the applicant, during his time at the Zheleznodorozhnyy police station, he was allegedly driven to the organised crime unit several more times and subjected to various forms of ill-treatment. This allegedly included beatings, electric shocks and having a plastic bag placed over his head so that he lost consciousness.<\/p>\n 9.\u00a0\u00a0At 2 p.m. on 15 May 2006 the Zheleznodorozhnyy District Court of Ryazan extended the applicant\u2019s arrest until 6 p.m. on 16\u00a0May 2006.<\/p>\n 10.\u00a0\u00a0According to the applicant, on the evening of 15 May 2006 he was physically assaulted again at the Zheleznodorozhnyy police station by an unknown police officer, who tried to force him to confess to different unsolved crimes concerning weapons, thefts and drugs.<\/p>\n 11.\u00a0\u00a0On 16 May 2006 the District Court remanded the applicant in custody. He was placed in a Ryazan pre-trial detention facility (IZ 62\/1).<\/p>\n B.\u00a0\u00a0The applicant\u2019s injuries allegedly received as a result of police ill\u2011treatment<\/strong><\/p>\n 12.\u00a0\u00a0According to records from IZ 62\/1 dated 16 May 2006, on his arrival at 4.20 p.m. that day the applicant was examined by a medical assistant (feldsher). He had the following injuries: (i) multiple abrasions covered in brown scabs on his forehead and the back and top of his head; (ii) swelling on the inner surface of the lips; (iii) multiple large purple and blue bruises on his chest, abdomen, left side, forearms and shoulders; (iv) purple and yellow bruises on his knee joints; and (v) abrasions covered in brown scabs on the back of the toes of his left foot.<\/p>\n C.\u00a0\u00a0Pre-investigation inquiries and refusals to institute criminal proceedingsinto the applicant\u2019s alleged ill-treatment<\/strong><\/p>\n 1.\u00a0\u00a0First set of pre-investigation inquiries<\/em><\/p>\n (a)\u00a0\u00a0Investigative committee<\/strong><\/p>\n 13.\u00a0\u00a0On 18 May 2006 the material concerning the applicant\u2019s injuries was forwarded from the pre-trial detention facility to the Zheleznodorozhnyy district prosecutor\u2019s office of Ryazan. It was registered on 25\u00a0May 2006.<\/p>\n 14.\u00a0\u00a0On 25 May 2006 the applicant lodged a complaint with the Zheleznodorozhnyy district prosecutor against the police officers, requesting that they be prosecuted. His complaint was registered that day.<\/p>\n 15.\u00a0\u00a0On 30 May 2006 the material in both files concerning the applicant\u2019s alleged ill-treatment were joined.<\/p>\n 16.\u00a0\u00a0On 5 June 2006, 20 December 2006 and 10 June 2008 officials at the prosecutor\u2019s office, and later the Zheleznodorozhnyy inter-district investigation unit of the investigative committee for Ryazan (\u201cthe investigative committee\u201d) issued refusals to initiate criminal proceedings against the police officers.<\/p>\n 17.\u00a0\u00a0The two earlier refusals were overruled by the higher authority within the investigative committee on 25 September 2006 and 9 June 2008 respectively, and the investigation authorities were ordered to carry out additional inquiries. The most recent refusal of 10 June 2008 was issued in accordance with Article\u00a024\u00a0\u00a7\u00a01\u00a0(2) of the Code of Criminal Procedure (\u201cthe CCrP\u201d) on the grounds that none of the elements of crimes under Articles 285 and\u00a0286 of the Criminal Code (abuse of powers) were present in respect of the police officers\u2019 actions.<\/p>\n 18.\u00a0\u00a0Police officer A.S. from the organised crime unit stated in an explanation of 8 June 2006 that on 13 May 2006 eight officers from the rapid response unit had carried out the applicant\u2019s arrest. As the applicant and three other individuals were armed and refused to get out of their car, physical force (unspecified \u201csambo\u201d wrestling techniques) and special devices (handcuffs) were used on them. A.S. could not remember whether those arrested had received any injuries. According to him, they were then taken to the Moskovskiy police station. A.S. referred to a report on the arrest.<\/p>\n 19.\u00a0\u00a0According to the report on the arrest, signed by the head of division no.\u00a01 of the rapid response unit on 13\u00a0May 2006, the arrest operation had been carried out between 5.00 a.m. and 5.30 a.m. on 13\u00a0May 2006 by eight officers from the rapid response unit. The applicant and four other suspects had been in a car. Two guns had been found during the search. It was stated in the report that the police officers had used \u201cphysical force\u201d and handcuffs, and that \u201cno incidents had happened\u201d.<\/p>\n 20.\u00a0\u00a0Police officers of the rapid response unit (T.D., M.A., O.S., K.D., K.A. and Ch.D.) stated that they had carried out the applicant\u2019s arrest at around 6 a.m. on 13 May 2006. They arrested four individuals (including the applicant), who all resisted arrest. They used physical force and special devices (handcuffs).<\/p>\n 21.\u00a0\u00a0Police officer P.V. from the organised crime unit stated that, after the applicant\u2019s arrest in the early hours of 13 May 2006, he had searched him in the presence of attesting witnesses. He denied subjecting him to any physical or verbal abuse.<\/p>\n 22.\u00a0\u00a0Police officers R.A. and B.A. of the Moskovskiy police denied subjecting the applicant to any ill-treatment.<\/p>\n 23.\u00a0\u00a0Investigator A.A. stated in an (undated) explanation that the applicant had been arrested in the early hours of 13 May 2006 by police officers of the organised crime unit. During his arrest the applicant resisted, and physical force was used on him. A.A.\u00a0did not know whether the applicant had been subjected to any ill\u2011treatment by the police officers of the Zheleznodorozhnyy police station. At 7 p.m. on 13 May 2006 the applicant was taken to his room. A.A.\u00a0arrested him on suspicion of organised robbery pursuant to Article\u00a091 of the CCrP. A.A. denied subjecting the applicant to any physical or psychological pressure.<\/p>\n 24.\u00a0\u00a0In its most recent refusal to open a criminal case against the police officers dated 10 June 2008, the investigative committee briefly concluded that the applicant\u2019s injuries had resulted from the use of force and special devices (handcuffs) by police officers of the rapid response unit during the applicant\u2019s arrest, as the applicant had resisted arrest.<\/p>\n (b)\u00a0\u00a0Judicial review of the investigators\u2019 decisions<\/strong><\/p>\n 25.\u00a0\u00a0Relying on Article 125 of the CCrP, the applicant appealed against two of the refusals to open a criminal case against the police officers to the courts, namely those of 20 December 2006 and 10 June 2008.<\/p>\n 26.\u00a0\u00a0On 10 June 2008 the Zheleznodorozhnyy District Court of Ryazan ruled that the applicant\u2019s appeal against the refusal of 20\u00a0December\u00a02006 should not be examined, and terminated the proceedings on the grounds that on 9\u00a0June 2008 the investigative committee had already revoked the refusal.<\/p>\n 27.\u00a0\u00a0On 16 December 2008 the same court dismissed the applicant\u2019s appeal against the refusal of 10 June 2008, holding that it was lawful and well-grounded. In particular, the court noted that the applicant\u2019s arguments concerning his alleged ill-treatment in police custody from 13 to 15\u00a0May 2006 had been examined during his criminal trial and on appeal and dismissed as unconfirmed. On 5 February 2009 the Ryazan Regional Court fully endorsed that decision on appeal.<\/p>\n 2.\u00a0\u00a0Second set of pre-investigation inquiries<\/em><\/p>\n 28.\u00a0\u00a0On 26 May 2006 a copy of the applicant\u2019s complaint of ill-treatment was forwarded to the Sovetskiy district prosecutor\u2019s office of Ryazan for a separate inquiry in relation to the police officers of the organised crime unit.<\/p>\n 29.\u00a0\u00a0On 2 June 2006 and 24 February 2009 respectively, in accordance with Article\u00a024\u00a0\u00a7\u00a01\u00a0(1) of the CCrP, officials at the Sovetskiy prosecutor\u2019s office and Moskovskiy inter-district investigation unit of the investigative committee for Ryazan issued refusals to initiate criminal proceedings against the police officers as none of the elements of crimes under Articles\u00a0285 and 286 of the Criminal Code (abuse of powers) were present in respect of their actions. On 25 December 2008 the first refusal was overruled by the higher authority within the investigative committee as unsubstantiated, and the investigation authorities were ordered to carry out an additional inquiry.<\/p>\n 30.\u00a0\u00a0In its most recent refusal to open a criminal case against the police officers dated 24 February 2009, the investigative committee briefly noted the outcome of the applicant\u2019s criminal case and concluded that there was no objective information showing that any crimes had been committed against the applicant by the police officers.<\/p>\n 3.\u00a0\u00a0Third set of pre-investigation inquiries<\/em><\/p>\n (a)\u00a0\u00a0Investigative committee<\/strong><\/p>\n 31.\u00a0\u00a0In December 2006 and May 2008 respectively the applicant lodged two more complaints with the Prosecutor General\u2019s Office and the investigative committee against the police officers, investigators and other State officials, requesting that they be prosecuted for unlawful arrest, detention and abuse of power in connection with the events of 13 to 16 May 2006 and his criminal case.<\/p>\n 32.\u00a0\u00a0On 16 January 2007, 12 April 2007 and 26 May 2008, officials at the Zheleznodorozhnyy prosecutor\u2019s office and the Zheleznodorozhnyy inter\u2011district investigative committee issued refusals to initiate criminal proceedings against the police officers.<\/p>\n 33.\u00a0\u00a0The two earlier refusals were overruled by the higher authority within the investigative committee on an unspecified date and 14 May 2008 respectively, and the investigation authorities were ordered to carry out additional inquiries. The most recent refusal of 26 May 2008 was issued in accordance with Article\u00a024\u00a0\u00a7\u00a01\u00a0(2) of the CCrP, because none of the elements of crimes under Articles 285, 286 and 301 of the Criminal Code (abuse of powers and unlawful arrest and detention respectively) were present in respect of the police officers\u2019 actions, as the applicant\u2019s allegations had not been confirmed in the course of the inquiry.<\/p>\n (b)\u00a0\u00a0Judicial review of the investigators\u2019 decisions<\/strong><\/p>\n 34.\u00a0\u00a0Under Article 125 of the CCrP, the applicant appealed against all three of the refusals mentioned above.<\/p>\n 35.\u00a0\u00a0On 2 April 2007 the Zheleznodorozhnyy District Court of Ryazan examined the applicant\u2019s appeal against the refusal of 16 January 2007 and concluded that it had been unlawful and unsubstantiated because not all of the applicant\u2019s arguments had been examined concerning, in particular, his allegedly unlawful arrest and detention. The investigation authority was ordered to rectify those deficiencies. It appears that the refusal was subsequently overruled by the investigative committee, and an additional inquiry was ordered.<\/p>\n 36.\u00a0\u00a0On 14 May 2008 the same court ruled that the applicant\u2019s appeal against the investigator\u2019s refusal of 12 April 2007 should not be examined, and terminated the proceedings on the grounds that on 14 May 2008 the investigative committee had already overruled it.<\/p>\n 37.\u00a0\u00a0On 10 December 2008 the court dismissed the applicant\u2019s appeal, holding that the refusal of 26 May 2008 was lawful and well-grounded. It also endorsed the findings of the trial and appellate courts in the applicant\u2019s criminal case. On 22 January 2009 the Ryazan Regional Court upheld that decision on appeal.<\/p>\n D.\u00a0\u00a0Criminal proceedings against the applicant<\/strong><\/p>\n 38.\u00a0\u00a0On 28 April 2008 the Ryazan Regional Court convicted the applicant of organised banditry, illegal possession of firearms and armed robbery, and sentenced him to fifteen years\u2019 imprisonment and a fine.<\/p>\n 39.\u00a0\u00a0At trial, the applicant complained that the investigative measures carried out during the preliminary investigation of his criminal case had been unlawful, and that he had been coerced into making a confession.<\/p>\n 40.\u00a0\u00a0The trial court dismissed the applicant\u2019s allegations as unconfirmed. It referred mainly to the results of the pre-investigation inquiry into the applicant\u2019s allegations of ill\u2011treatment, which had resulted in the (subsequently overruled) refusal of 20 December 2006 to open a criminal case against the police officers.<\/p>\n 41.\u00a0\u00a0On 7 August 2008 the Supreme Court of Russia upheld that judgment on appeal, finding the conclusions of the trial court duly reasoned.<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION<\/p>\n 42.\u00a0\u00a0The applicant complained that he had been subjected to ill-treatment by the police and that the State had failed to conduct an effective investigation into his complaints. He relied on Article 3 of the Convention, which reads as follows:<\/p>\n \u201cNo one shall be subjected to torture or to inhuman or degrading treatment or punishment.\u201d<\/p>\n 43.\u00a0\u00a0The Government argued that the applicant\u2019s injuries had been inflicted as a result of the lawful use of force by the police during the applicant\u2019s arrest in order to overcome the applicant\u2019s resistance and to prevent his escape. Such force had not attained the threshold for it to be considered inhuman or degrading treatment.<\/p>\n 44.\u00a0\u00a0The Government underlined that the applicant had not complained about his alleged ill-treatment to the investigator during his arrest on 13\u00a0May 2006, to his lawyer and the investigator during his questioning as a suspect the next day, to the judge at the hearing concerning his remand in custody on 16 May 2006 or to the doctor of IZ 62\/1 when he was placed there. He had only lodged his complaint on 25 May 2006. Furthermore, he should have received more serious injuries as a result of the ill-treatment described by him. However, no evidence of his being suffocated by a plastic bag or subjected to electric shocks had been found. The applicant had not suffered even minor harm to his health.<\/p>\n 45.\u00a0\u00a0The Government submitted no observations in relation to the State\u2019s obligation to carry out an effective investigation, stating that the materials of the pre\u2011investigation inquiry into the applicant\u2019s alleged ill-treatment had been destroyed on 12\u00a0March 2010 due to the expiration of the time-limit for their storage. They argued that it would be incorrect for the Court, which had delayed the examination of the application, to carry out its assessment on the basis of the documents submitted by the applicant. They noted that the applicant\u2019s allegations of ill-treatment had been carefully examined by the domestic courts in the proceedings initiated by the applicant to appeal against the investigating authority\u2019s decisions and in the criminal proceedings against him.<\/p>\n 46.\u00a0\u00a0The applicant submitted that he had been unable to lodge his criminal complaint earlier because before his placement in IZ 62\/1 he had been under the full control of the police officers who had ill\u2011treated him, fearing for his life and risking physical retaliation. He had needed time to recover after the violence and to consult his lawyer.<\/p>\n 47.\u00a0\u00a0The applicant noted that according to the police officers\u2019 explanations, his resistance during his arrest had only manifested itself in the refusal to come out of the car. He had not attempted to flee. The injuries which had been found on him at IZ 62\/1 had not been received during his arrest. They had been inflicted on him as a result of the police violence during more than fourteen hours until his official arrest by the investigator and during the period which had followed until his placement in IZ 62\/1. The applicant argued that he had been subjected to inhuman and degrading treatment.<\/p>\n
\nDmitry Dedov,
\nJolienSchukking, judges,
\nand Fato\u015f Arac\u0131, Deputy Section Registrar,<\/p>\n