Постановление ЕСПЧ от 09.02.2016 <Дело Шлучков (Shlychkov) против России> (жалоба N 40852/05) [англ.]

EUROPEAN COURT OF HUMAN RIGHTS
THIRD SECTION
CASE OF SHLYCHKOV v. RUSSIA
(Application no. 40852/05)
JUDGMENT <*>

(Strasbourg, 9.II.2016)
———————————

<*> This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Shlychkov v. Russia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Luis  Guerra, President,
Helena ,
George Nicolaou,
Johannes Silvis,
Dmitry Dedov,
Branko Lubarda,
Pere Pastor Vilanova, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having deliberated in private on 19 January 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE

 

  1. The case originated in an application (no. 40852/05) 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 Sergey Anatolyevich Shlychkov («the applicant»), on 16 September 2005.
  2. The applicant, who had been granted legal aid, was represented by Ms O. Preobrazhenskaya, a lawyer practising in Strasbourg. The Russian Government («the Government») were represented by Mr Georgy Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.
  3. The applicant alleged that he had been ill-treated in custody by the police, that there had been no effective investigation into the alleged ill-treatment and that his conviction had been based on a confession obtained under duress.
  4. On 26 February 2010 the application was communicated to the Government.

 

THE FACTS

  1. The circumstances of the case

 

  1. The applicant was born in 1955 and lives in Naro-Fominsk in the Moscow region. He is currently serving his sentence in IK-4 detention facility in the village of Udarnyy in the Republic of Mordovia.

 

  1. Background events

 

  1. At 8.20 p.m. on 6 March 2004 Ms E. was robbed in the street and was stabbed through the heart. She died of the wound shortly afterwards. The assailant took a mobile phone and 2,500 Russian roubles (RUB) from the victim’s purse.
  2. The Naro-Fominsk town prosecutor’s office («the town prosecutor’s office») instituted a criminal investigation into E.’s killing. Having obtained from the mobile phone operator the call logs in respect of the victim’s phone, the investigators established that at 9.50 p.m. on 6 March 2004 a phone call had been made to a number belonging to Ms A. from E.’s phone using the applicant’s SIM card.

 

  1. The applicant’s arrest
  1. The applicant’s account

 

  1. At 11 a.m. on 18 March 2004 the police arrived at the applicant’s flat and ordered him to follow them to the police station.
  2. Once at the police station, the applicant explained that on 6 March 2004 he had bought a used mobile phone from a stranger because a friend of his had earlier expressed an interest in purchasing a second-hand phone. In order to test the phone, he had inserted his SIM card and made a call to his then girlfriend, Ms A. He also claimed that on the same day he had played slot machines and won RUB 2,500. Then the officers questioning him showed him a call log from Ms E.’s phone, informed him of the killing and suggested that he confess to mitigate his sentence. The applicant refused to admit to the crime.
  3. The officers proceeded to hit and kick him on his head, chest and flanks. The applicant fainted several times. The beatings went on for twelve hours. Eventually the applicant gave in and agreed to write down a «statement of surrender and confession» (явка с повинной), as dictated by the officers, admitting to the robbery and murder of Ms E.
  4. An investigator of the town prosecutor’s office, Mr A., questioned the applicant as a suspect and later went to the applicant’s flat to seize a few items including the mobile phone contract for the applicant’s SIM card.
  5. The applicant was not provided with legal assistance on 18 March 2004.

 

  1. The Government’s account

 

  1. The applicant was brought to the police station at 10 p.m. on 18 March 2004. Upon arrival the police officers asked him how he had obtained Ms E.’s phone and then showed him the call log. The applicant looked at the log and then asked the officers to leave him alone in the room. He then wrote a statement of surrender and confession describing the circumstances of the crime. No physical force was applied to the applicant.
  2. In the Government’s submission, on 18 March 2004 the applicant complained to the town prosecutor’s office; however, he did not raise the issue of ill-treatment.
  3. At 12.30 p.m. on 19 March 2004 an arrest record was drawn up. It contained a handwritten note by the applicant that read as follows: «[I] agree with the arrest, rights are understood, [I have] no statement to make».
  4. A handwritten statement signed by the applicant and dated 19 March 2004 affirmed that the applicant’s rights had been explained to him; that he did not require legal assistance; that the «bodily injuries visible at [that] moment on [his] face and body [had been] inflicted on 11 March 2004 by [his] roommate Dima»; and that police officers had not used force against him.

 

  1. Criminal proceedings against the applicant and complaints about the alleged ill-treatment

 

  1. Between 12.40 a.m. and 2.55 a.m. on 19 March 2004 the applicant was questioned without a lawyer present.
  2. In the early morning on 19 March 2004 the applicant was placed in a temporary detention centre (Изолятор временного содержания, hereinafter «IVS»). According to the Government, when placed in the IVS, the applicant did not make any health-related complaints. He had a bruise under his right eye. An entry in the IVS logbook was made by an ambulance doctor stating that the applicant was «in a post-epileptic-fit state».
  3. Between 11.10 a.m. and 12.50 p.m. on 19 March 2004 the applicant was questioned in the presence of Mr B., a legal-aid lawyer. According to the Government, in the course of the interview he described how he had committed the crime. The record of the interview reads that the applicant found the knife used as the murder weapon at a market after a fire.
  4. On 20 or 22 March 2004 <*> the investigators carried out an investigative re-enactment. In the applicant’s submission, the re-enactment was limited to bringing him to the crime scene and photographing him there. According to the Government, during the visit the applicant confirmed his statement made in the presence of the lawyer in the course of the second interview of 19 March 2004. He also selected a knife similar to that used to stab Ms E. from a selection of four knives available at a local shop.

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<*> The parties disagree about the date.

 

  1. On 20 March 2004 a judge of the Naro-Fominsk Town Court («the Town Court») placed the applicant in custody. The applicant complained to the judge about his ill-treatment; she refused to take note of the allegations, however, stating that they could be examined in the course of the trial against the applicant.
  2. On 25 March 2004 the applicant was formally charged with murder and robbery. He retracted his confession.
  3. On 26 March 2004 the police transported the applicant to a remand prison. However, the staff on duty refused to admit the applicant as he had visible injuries. The applicant was returned to the IVS. On 29 March 2004 the police again tried to transfer him to the remand prison and were refused for the second time.
  4. On 30 March 2004 the police brought the applicant to the Naro-Fominsk polyclinic where he underwent an X-ray examination which showed that there were fractures to three ribs with signs that the bones were beginning to heal. The following day the applicant was admitted to the remand prison.
  5. According to the applicant, once in the remand prison, he complained about his ill-treatment to the town prosecutor’s office.
  6. According to the Government, the applicant raised the ill-treatment complaint on 17 June 2004. The town prosecutor’s office carried out a pre-investigation inquiry on the basis of the complaint.
  7. On 18 June 2004 Mr A., an investigator with the town prosecutor’s office, refused to initiate criminal proceedings into the alleged ill-treatment. He observed that upon arrival at the IVS the applicant had had a bruise under his right eye and yet had made no complaints about his state of health, and noted that, according to the IVS logbook, an ambulance had been called for the applicant on account of an epileptic fit.
  8. On an unspecified date the criminal case against the applicant was submitted for trial before the Moscow Regional Court («the Regional Court»).
  9. The applicant first took cognisance of the decision of 18 June 2004 on 29 June 2004 while studying the case file in the criminal case against him.
  10. The applicant complained about the town prosecutor’s office’s refusal of 18 June 2004 to the Russian Prosecutor General’s Office, which forwarded it for examination by the Prosecutor’s Office of the Moscow region. The latter forwarded the complaint to the town prosecutor’s office (against which the complaint was directed). The applicant received no reply.
  11. The applicant did not attempt to institute any judicial review proceedings, considering that they would be futile on account of the judge’s reply of 20 March 2004.
  12. On 27 July 2004 the Regional Court scheduled a trial hearing on 9 August 2004.
  13. The applicant raised the matter of ill-treatment before the Regional Court at his trial.
  14. On 20 October 2004 the Regional Court ordered an expert medical examination of the X-ray of 30 March 2004. It can be seen from the trial record of that date that N. informed the judge that he was not an expert in interpreting X-rays and asked for a period of two weeks to consult a colleague; the judge acceded to the request. On 4 November 2004 N. drew up a report stating that the rib fractures had been caused by blunt objects; by 30 March 2004 the knitting together of the fractures had commenced; the fractures had been «considerably old» and «no injuries corresponding to [those of] 11 and 18 March 2004 [had been] identified». The judge rejected the applicant’s request for another expert report.
  15. The Regional Court dismissed the record of the first interview of 19 March 2004 as inadmissible evidence for the reason that the interview had been conducted without a lawyer present.
  16. On 3 December 2004 the Regional Court convicted the applicant of robbery and murder and sentenced him to twenty years’ imprisonment. The court referred to the applicant’s pre-trial confession, the record of his questioning by the investigator, his statements at the investigative re-enactment and other physical evidence.
  17. The trial judge also examined in detail the evidence presented by the parties in relation to the allegation of ill-treatment, including the decision of 18 June 2004 and the expert medical report ordered in respect of the X-ray. The judge also heard evidence from an expert, N., as well as investigator Mr A. and several police officers. The judge refused to examine the IVS logbook which, according to the applicant, would support his assertion that there were injuries. Instead, the judge examined a letter from the deputy director of the IVS, according to which on his arrival there the applicant only had had a black eye which he had explained as having received before the arrest. The deputy director had also noted that the logbook entry concerning the call for an ambulance had been made for another person. The judge dismissed the applicant’s allegations of ill-treatment and declared the relevant evidence (the confession statement, the interview record and the investigative re-enactment record) admissible.
  18. On 6 December 2004 the applicant lodged an appeal reiterating the issue of his confession under duress without a lawyer present, as well as the weakness of the prosecution’s case against him. He insisted on his innocence.
  19. On 14 December 2004 the applicant lodged an additional appeal in which he claimed that the Regional Court had wrongly considered his previous conviction as an aggravating factor and yet had chosen to regard the surrender and confession as a mitigating factor. He asked for the first-instance judgment to be quashed on the grounds given in his appeal of 6 December 2004.
  20. On the same date the applicant (through his counsel) lodged an appeal in which he insisted that the statement of surrender and confession had not been genuine as he had been forcibly brought to the police station and detained there for twelve hours with no access to a lawyer.
  21. On 16 March 2005 the Supreme Court of Russia upheld the first-instance judgment in a summary fashion.
  22. The applicant further unsuccessfully sought supervisory review of his conviction.
  23. On 5 April 2005 the applicant sent another complaint to the Prosecutor General’s Office, which was forwarded to the town prosecutor’s office.
  24. On 12 May 2005 the deputy town prosecutor quashed the decision of 18 June 2004 and issued an instruction to carry out an additional pre-investigation inquiry.
  25. On 15 May 2005 S., an investigator with the town prosecutor’s office, refused to institute an investigation into the applicant’s allegations of ill-treatment. He found it established that on 12 March 2004 a police officer in Naro-Fominsk had received a report of a violent fight; on 13 March 2004 he had invited the applicant to come in for a «preventative talk» and had noticed two bruises under the applicant’s eyes. S. concluded that the bruise under the applicant’s right eye had been a result of the injury inflicted long before the arrest. He also pointed out that the Regional Court had «carefully examined» the applicant’s version of ill-treatment by police officers. The issue of the fractured ribs was not examined.

 

  1. Relevant domestic law

 

  1. For the summary of relevant domestic law see Lyapin v. Russia (no. 46956/09, §§ 96 — 102, 24 July 2014).

 

III. Relevant international materials

 

European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment («the CPT»)

 

  1. The CPT Standards 2002 (revised in 2011) (CPT/Inf/E (2002) 1-Rev. 2011) contain the following provisions (Extract from the 2nd General Report [CPT/Inf (92) 3]):

«36. The CPT attaches particular importance to three rights for persons detained by the police: the right of the person concerned to have the fact of his detention notified to a third party of his choice (family member, friend, consulate), the right of access to a lawyer, and the right to request a medical examination by a doctor of his choice (in addition to any medical examination carried out by a doctor called by the police authorities). <*> They are, in the CPT’s opinion, three fundamental safeguards against the ill-treatment of detained persons which should apply as from the very outset of deprivation of liberty, regardless of how it may be described under the legal system concerned (apprehension, arrest, etc.).

———————————

<*> This right has subsequently been reformulated as follows: the right of access to a doctor, including the right to be examined, if the person detained so wishes, by a doctor of his own choice (in addition to any medical examination carried out by a doctor called by the police authorities).

 

  1. Persons taken into police custody should be expressly informed without delay of all their rights, including those referred to in paragraph 36. Further, any possibilities offered to the authorities to delay the exercise of one or other of the latter rights in order to protect the interests of justice should be clearly defined and their application strictly limited in time. As regards more particularly the rights of access to a lawyer and to request a medical examination by a doctor other than one called by the police, systems whereby, exceptionally, lawyers and doctors can be chosen from pre-established lists drawn up in agreement with the relevant professional organisations should remove any need to delay the exercise of these rights.
  2. Access to a lawyer for persons in police custody should include the right to contact and to be visited by the lawyer (in both cases under conditions guaranteeing the confidentiality of their discussions) as well as, in principle, the right for the person concerned to have the lawyer present during interrogation.

As regards the medical examination of persons in police custody, all such examinations should be conducted out of the hearing, and preferably out of the sight, of police officers. Further, the results of every examination as well as relevant statements by the detainee and the doctor’s conclusions should be formally recorded by the doctor and made available to the detainee and his lawyer.»

  1. The relevant part of the CPT’s country report, following its visit to the Russian Federation of 21 May to 4 June 2012 (CPT/Inf (2013) 41), reads as follows:

«39. As repeatedly stressed by the CPT in the past, the prompt and proper medical examination of persons admitted to IVS establishments is essential, in particular in order to facilitate any subsequent investigative measures related to allegations of ill-treatment.

The Committee once again calls upon the Russian authorities to take immediate steps to ensure that:

— all persons admitted to IVS establishments are properly interviewed and physically examined by qualified health-care staff on the day of their admission or the following day; the same approach should be adopted each time a person returns to an IVS cell after having been taken out by operational officers (even for a short period of time);

— all medical examinations (whether they are carried out in hospitals or in law enforcement facilities) are conducted out of the hearing and — unless the health-care professional concerned expressly requests otherwise in a given case — out of the sight of law enforcement officials;

— the record drawn up following the medical examination of a detained person in a hospital or law enforcement establishment contains: (i) a full account of statements made by the person concerned which are relevant to the medical examination (including his/her description of his/her state of health and any allegations of ill-treatment), (ii) a full account of objective medical findings based on a thorough examination, and (iii) as far as possible, the health-care professional’s conclusions as to the consistency between injuries observed and any allegations of ill-treatment made by the person concerned;

— whenever injuries are recorded which are consistent with allegations of ill-treatment made by a detained person (or which, even in the absence of allegations, are indicative of ill-treatment), the record is systematically brought to the attention of the competent investigative authorities, regardless of the wishes of the person concerned. Detained persons and their lawyers should be entitled to receive a copy of that record at the same time.»

 

THE LAW

  1. Alleged violation of Article 3 of the Convention

 

  1. The applicant complained that on 18 March 2004 he had been ill-treated by police officers and that the domestic authorities had failed to conduct an effective investigation into the alleged ill-treatment. 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.»

  1. The Government submitted at the outset that the applicant had failed to exhaust the effective domestic remedies available to him as he had not challenged the town prosecutor’s office’s refusal to investigate the alleged ill-treatment of 18 June 2004 before a court. They further stated that the applicant’s allegations had not been supported by any medical certificates or other evidence and that the applicant had described the events in vague terms. The bruise under the applicant’s right eye noted upon arrival at the IVS on 19 March 2004 had been a result of the fight with «Dima». They concluded that the complaint was manifestly ill-founded.
  2. The applicant insisted that he had exhausted the domestic remedies available to him in the circumstances of the case referring to the following: firstly, he had learned of the refusal of 18 June 2004 on 29 June 2004 while studying the criminal case file shortly before the commencement of the trial against him; secondly, the Regional Court had examined the allegations of ill-treatment in detail — in particular, it had requested an expert medical report and had questioned several witnesses including the police officers allegedly involved; lastly, the issue of ill-treatment had been brought to the attention of the Supreme Court of Russia on appeal. The applicant further maintained his complaint about the ill-treatment and emphasised the lack of an effective investigation into it pointing out, in particular, that the investigative authorities had not even attempted to establish which injuries had been inflicted in the course of the fight with «Dima».

 

  1. Admissibility

 

  1. Turning to the Government’s plea of non-exhaustion, the Court observes that the applicant indeed failed to seek judicial review of the town prosecutor’s office’s refusal to investigate the alleged ill-treatment of 18 June 2004. It reiterates, however, that the rule of exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism (see Akdivar and Others v. Turkey, 16 September 1996, § 69, Reports of Judgments and Decisions 1996-IV).
  2. It has not been disputed between the parties that the applicant raised his complaints of ill-treatment before the Regional Court during the trial proceedings against him, complaining of police brutality and the prosecutor’s indifference to his claims. The Regional Court did not refuse to entertain his complaints for failure to comply with any formal requirements: it took cognisance of the merits of those complaints by examining the applicant, the police officers and other witnesses and examining the inquiry materials, and upheld the conclusions of the prosecutor’s office. The Supreme Court of Russia endorsed the Regional Court’s findings in that respect. The Government did not argue that in pursuing this avenue of judicial review, the applicant had removed from the domestic courts the option of examining the relevant issues. In those circumstances, where the courts have already embarked on the analysis of an applicant’s complaints, the Court does not find it unreasonable that the applicant did not lodge the same complaints with the same courts (see Akulinin and Babich v. Russia, no. 5742/02, §§ 31 — 32, 2 October 2008; Vladimir Fedorov v. Russia, no. 19223/04, §§ 47 — 49, 30 July 2009; and Lopata v. Russia, no. 72250/01, § 107, 13 July 2010). In such circumstances the Court dismisses the Government’s objection.
  3. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.

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