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JUDGMENT
STRASBOURG
15 May 2018
This judgment will become final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
SERGEY IVANOV v. RUSSIA JUDGMENT 1
PROCEDURE
1. The case originated in an application (no. 14416/06) 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 Vladimirovich Ivanov
(“the applicant”), on 17 February 2006.
2. The applicant was represented by Mr D.V. Mosenkov, a lawyer
practising in Nizhniy Novgorod. The Russian Government (“the
Government”) 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.
3. The applicant alleged, in particular, that he had been subjected to
ill-treatment by the police and convicted prisoners acting on their
instructions, that no effective investigation into his complaints had been
carried out, and that confession statements obtained as a result of his
ill-treatment had been used as evidence for his conviction.
4. On 14 March 2013 the application was communicated to the
Government.
2 SERGEY IVANOV v. RUSSIA JUDGMENT
THE FACTS
jumped on him. When the applicant lost consciousness they poured water
on him. He heard the officers tell each other not to leave any marks on his
body. The investigator entered the room several times and demanded that
the applicant write a confession.
10. According to the applicant, his ill-treatment lasted for several hours
until he wrote a confession statement as requested.
11. According to the police records, the applicant confessed to
committing the robbery with three other individuals at 9.30 a.m. on 8 June
2004. His confession was recorded in the form of a voluntary “statement of
surrender and confession” (явка с повинной) by operational officer P. in
room no. 329. The record stated that at 9.30 a.m. on 8 June 2004 the
applicant had turned himself in to the police and reported that he had
committed the crime.
12. According to a record of the applicant’s arrest as a suspect in the
robbery case, drawn up by S., the applicant was arrested at 9.40 a.m. on
8 June 2004, and the record was drawn up at the same time. Between 5.05
and 5.30 p.m. he was questioned as a suspect in the presence of a lawyer
appointed by S. The applicant refused to give statements, relying on his
constitutional right not to incriminate himself. He was then placed in the
temporary detention centre of the Nizhniy Novgorod regional police
department.
13. On 9 June 2004 the applicant was brought before Judge D. of the
Nizhegorodskoy District Court, who granted the investigator’s request for
the applicant to be remanded in custody. According to the applicant, at the
hearing in the presence of a lawyer appointed by his family, he complained
to the judge that he had been ill-treated by police officers and had signed a
confession statement as a result, but the judge did not take any action.
14. According to the applicant, after the court hearing he was not placed
in a remand centre as was normal practice. He was instead detained in the
temporary detention centre of the Privolzhskiy Federal Circuit police
department for five days, before being placed in a remand centre,
SIZO-1. According to the Government, the applicant was held in SIZO-1
from 9 June 2004.
15. On 15 June 2004 the applicant was charged with robbery and
questioned as an accused by S. in the presence of his lawyer. The applicant
pleaded his innocence and again refused to give statements.
16. On 22 June 2004 the applicant was taken from SIZO-1 to the police
station. According to him, police officers, in particular Ch., K., P. and Pr.,
again subjected him to ill-treatment to force him to give confession
statements.
17. On 24 June 2004 the applicant, through his lawyer, lodged
complaints with the head of the remand centre, the Nizhniy Novgorod
regional prosecutor, the Prosecutor General’s Office and the Presidential
Human Rights Committee. He described suffering acts of violence at the
4 SERGEY IVANOV v. RUSSIA JUDGMENT
hands of the police officers on 8 and 22 June 2004 (see paragraphs 9 and 16
above). He requested that action be taken and that he be placed under
protection, adding that he could identify the police officers concerned. He
stated that as a result of the violence he had confessed to a crime which he
had never committed in a “statement of surrender and confession” which
had been dictated to him by the police officers and S.
47. The applicant lodged appeals against the decision of 8 April 2005,
which were dismissed by various levels of prosecutor’s office, as stated in a
letter from an assistant Prosecutor General of the Russian Federation of
20 February 2006, and letters from the Nizhniy Novgorod regional
prosecutor’s office dated 9 March and 10 April 2006.
48. The applicant was tried by jury before the Nizhniy Novgorod
Regional Court. At a preliminary hearing on 19 October 2005 he requested
that the records of his questioning as an accused and some other records of
investigative activities conducted in his case be excluded as evidence
because the self-incriminating statements recorded therein had been
obtained from him under duress by police officers and convicts of IK-14.
49. At the applicant’s request the trial court heard two witnesses. The
applicant’s son S.I. stated that at his custody hearing, the applicant had been
in a “delirious state”, had had a swollen face, had been limping a lot and had
been helped by others to move around. When S.I. had visited his father in
IK-14 at the end of August 2004 he had had a bruise near one of the eyes, a
cut lip, bluish hands and bruises and abrasions on his wrists. The applicant
had written to his family in September or October 2004, asking them to
lodge an official complaint regarding the beatings. However, he had then
changed his mind and asked them not to do so.
50. I.K. stated that he had served a sentence of imprisonment in IK-14.
The day after his arrival the applicant had been admitted to the medical unit
with complaints of pain in his back and leg. He had had bruises on his face
which, according to him, had been inflicted on him by other convicts. The
applicant had been taken out of the unit for visits regularly, about three
times a month. I.K. had learnt from the applicant that the visitors had been
the police. After the visits the applicant had been unable to walk up the
stairs and had complained of pain in his head and back.
51. The trial court found that the witness statements did not support the
applicant’s allegations. It noted that the disputed records had been signed by
a lawyer and contained information about the applicant’s procedural rights.
In the court’s opinion, the applicant’s medical history, notably
post-traumatic encephalopathy, osteochondrosis of the cervical spine and a
form of dystonia, which he had been diagnosed with in 1991, explained his
complaints of headaches and pain in his back and legs. The court also relied
on statements by S., who denied the applicant’s allegations, and on the
Sukhobezvodnenskiy prosecutor’s decision refusing to institute criminal
proceedings into the applicant’s alleged ill-treatment. It held that the
applicant’s allegations that his confession statements had been given under
duress were not based on fact and rejected his requests to have the
impugned evidence declared inadmissible.
SERGEY IVANOV v. RUSSIA JUDGMENT 11
52. On 8 June 2006 the applicant and his co-accused were convicted of
theft and a series of armed robberies committed in 1998, 1999, 2002 and on
24 April 2004 by a criminal group led by two of the applicant’s co-accused.
The applicant was sentenced to nineteen years’ imprisonment. In sentencing
the applicant the court applied Article 61 § 1 (i) of the Criminal Code,
which provided that a “statement of surrender and confession”, active
cooperation in investigating a crime and exposure of other participants in a
crime were extenuating circumstances which warranted a less severe
punishment.
53. The applicant appealed. He stated that after his arrest he had been
beaten up by police officers and had given a “statement of surrender and
confession” under duress, which he had revoked at trial. His injuries had
been confirmed by medical evidence. On 21 July 2004 he had been
unlawfully transferred to correctional facility IK-14 under the pretext that he
had intimidated his co-accused, which he had never done. He had been held
in a punishment cell and then in a unit together with convicted prisoners
who had subjected him to beatings as a result of which he had given
self-incriminating statements. This had been confirmed by witness I.K.
54. On 22 February 2007 the Supreme Court of the Russian Federation
reduced the applicant’s sentence to sixteen years’ imprisonment, correcting
calculation errors by the trial court, and upheld the remainder of the
judgment. Relying on the Sukhobezvodnenskiy prosecutor’s decision
refusing to institute criminal proceedings, it upheld the trial court’s findings
in relation to the applicant’s allegations of police violence and his request
for the evidence allegedly obtained under duress to be excluded.
55. On 25 November 2013 the Varnavinskiy District Court of the
Nizhniy Novgorod region reduced the applicant’s sentence to fifteen and a
half years’ imprisonment following amendments to the Criminal Code.
THE LAW
who had committed a crime and their prosecution, that was only possible
within criminal proceedings instituted after a pre-investigation inquiry.
61. The Government pointed out that from the time of the applicant’s
arrest as a suspect all investigative activities had been carried out lawfully.
A. Admissibility
62. The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It further notes
that it is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
63. The Court reiterates that in assessing the evidence on which to base
the decision as to whether there has been a violation of Article 3, it adopts
the standard of proof “beyond reasonable doubt”. However, such proof may
follow from the coexistence of sufficiently strong, clear and concordant
inferences or of similar unrebutted presumptions of fact (see Jalloh
v. Germany [GC], no. 54810/00, § 67, ECHR 2006-IX). Where an
individual is taken into police custody in good health and is found to be
injured on release, it is incumbent on the State to provide a plausible
explanation of how those injuries were caused, failing which a clear issue
arises under Article 3 (see Ribitsch v. Austria, 4 December 1995, § 34,
Series A no. 336, and Selmouni v. France [GC], no. 25803/94, § 87, ECHR
1999-V). Where the events in issue lie wholly, or in large part, within the
exclusive knowledge of the authorities, as in the case of individuals within
their control in custody, strong presumptions of fact will arise in respect of
injuries occurring during such detention. The burden of proof is then on the
Government to provide a satisfactory and convincing explanation by
producing evidence establishing facts which cast doubt on the version of
events given by the victim. In the absence of such an explanation, the Court
can draw inferences which may be unfavourable for the Government. That
is justified by the fact that those in custody are in a vulnerable position and
the authorities are under a duty to protect them (Bouyid v. Belgium ([GC],
no. 23380/09, § 83, ECHR 2015).
1. Substantive aspect
64. The thrust of the Government’s submissions concerns the lack of any
injuries on the applicant according to the records from remand centre
SIZO-1 relating to 9, 22 and 28 June 2004 and those from correctional
colony IK-14.
14 SERGEY IVANOV v. RUSSIA JUDGMENT
65. The Court observes that it is disputed between the parties whether
the applicant was actually placed in SIZO-1 on 9 June 2004. According to
the applicant, he was placed there on 14 June 2004 after being held in the
temporary detention facility of the Nizhniy Novgorod regional police
department from 8 to 9 June 2004, and in the temporary detention facility of
the Privolzhskiy Federal Circuit police department from 9 to 14 June 2004.
These facts were not clarified by the investigating authorities. The
Government have not submitted any records from SIZO-1 to reliably show
that the applicant’s detention there commenced on 9 June 2004. Nor have
they submitted records from the above-mentioned temporary detention
facilities as to whether or not the applicant was detained there.
66. As regards the applicant’s medical records submitted by the
Government, both extracts described in paragraph 33 above are dated 9 June
2004, even though one of them concerns a medical examination carried out
several years later, on 9 April 2007. In the absence of any explanation by
the Government, it cannot reliably be concluded that the applicant’s medical
examination in SIZO-1 took place on 9 June 2004. Even assuming that it
did, the records contain no details of the examination, such as the parts of
the applicant’s body that were examined to allow for the conclusion that the
“cutaneous coverings” were “clean”. Furthermore, the Government have
submitted no medical records to show that the applicant was examined on
22 and 28 June 2004, when he was placed in SIZO-1 after being taken to the
police station by officers from the ORB police unit. The Court notes that his
request to the staff of SIZO-1 to record his injuries was noted in his
complaints to the domestic authorities of 29 and 30 June 2004.
67. The applicant, who had complained of contusions to the chest and
abrasions and requested that his injuries be recorded, was examined by a
doctor, Ch., at SIZO-1 on 29 June 2004. The doctor recorded circular
abrasions on the lower third of both shins with a brown “wet” surface, 1.5 to
2 centimetres wide, and concluded that they had been inflicted the previous
day. According to the applicant, the injuries had been inflicted on him as a
result of the ill-treatment by officers from the ORB police unit. By the time
the injuries were found on the applicant he had been held in detention
uninterruptedly for twenty-one days. The Court considers that the injuries
could arguably have resulted from the applicant’s alleged ill-treatment by
the police.
68. The Court further notes that the applicant’s injuries were not
recorded when he was placed in SIZO-1 the previous day after being taken
to the police station by officers from the ORB police unit. In the absence of
any explanation from the Government regarding such a serious failing, this
weakens their key argument about the lack of any injuries on the applicant
according to the records from remand centre SIZO-1 relating to 9, 22 and
28 June 2004.
SERGEY IVANOV v. RUSSIA JUDGMENT 15
69. Turning to the other evidence produced by the applicant, the Court
observes that his allegations of ill-treatment at the police station on 8 June
2004 are supported by the coherent statements of his wife and sons who had
seen him at the court hearing on 9 June 2004 (see paragraphs 32 (iii) to (iv)
and 49 above).
70. The Court observes that at the time of the alleged ill-treatment on
8 June 2004, that is between the search of the applicant’s flat (ordered as a
result of his suspected involvement in the robbery) and his official arrest by
the investigator, the applicant was being held in police custody, was
interviewed by officers in the absence of a lawyer and confessed to the
robbery. His confession was recorded by the police in the form of a
“statement of surrender and confession”, allegedly given voluntarily after he
had reported himself to the police station, whereas in reality he had been
taken there by police officers after the search. The Court has previously
found that obtaining a voluntary “statement of surrender and confession”
from a de facto suspect without a lawyer needing to be present is a violation
of the suspect’s right to legal assistance, and the use of such a statement as
evidence renders a trial unfair (see Turbylev v. Russia, no. 4722/09,
§§ 94-95, 6 October 2015). As in Turbylev, at the time of his confession the
applicant was being held in police custody for the sole reason that he was
suspected of committing the robbery (see paragraphs 6 and 7 above).
Therefore, he should have been provided with access to a lawyer along with
the other rights of a suspect.
71. The Court further observes that at the time of the alleged
ill-treatment on 22 and 28 June 2004 the applicant, an accused at that stage,
was being held in police custody and was taken from his detention facility
to the police station by officers from that unit. There is no indication that
any investigative activities were carried out with him on those days and the
purpose of those transfers remains unknown.
72. It can therefore be concluded that the applicant’s alleged
ill-treatment took place in the context of arbitrary actions on the part of the
police. This not only tends to favour the applicant’s account of the events of
8, 22 and 28 June 2004, but also taints the police officers’ subsequent
involvement in the case, given that no criminal or disciplinary proceedings
were opened to investigate the applicant’s alleged ill-treatment and that the
same police unit and even the same police officers were involved in the case
until the end of the preliminary investigation.
73. As for the allegations of further ill-treatment of the applicant in
IK-14, the Court is mindful of the fact that his transfer there was initiated by
officers from the ORB police unit and ordered by S., and that the alleged
intimidation of his co-accused, which served as grounds for the transfer,
was not subject to any proceedings in which he could challenge it.
74. The Government’s conclusion that the applicant’s allegations were
unfounded was based on the lack of any injuries in the medical records from
16 SERGEY IVANOV v. RUSSIA JUDGMENT
IK-14. The Court notes that the ill-treatment allegedly took place with the
connivance and participation of the administration of IK-14 (see
paragraph 44 above). The lack of any medical records of injuries at IK-14
cannot therefore serve as grounds for dismissing the applicant’s allegations,
and other evidence should be thoroughly examined.
75. The Court observes that the applicant’s allegations of being regularly
beaten up and threatened by police officers and the convicts of IK-14 to
make him confess to crimes are supported by the coherent statements of his
wife, son, I.K. and G., which, inter alia, describe the applicant’s condition
and injuries, in particular abrasions and bruises on the visible parts of his
body (his face, head and wrists), the difficulties he faced in moving on his
own and his depressed state (see paragraphs 32 and 49 above). Noting that
I.K. did not repeat all the initial statements he had given in February 2006
before the Nizhniy Novgorod Regional Court (as summarised in the
judgment of 8 June 2006), the Court pays attention to the fears initially
expressed by I.K. in relation to an eventual testimony in court. His latter
testimony, however, corroborated the applicant’s allegations.
76. The Government have not produced records from IK-14 concerning
units or cells the applicant was held in and the details of all visits he
received. The applicant’s allegations that he was held together with
convicted prisoners and received visits from officers of the ORB police unit
are supported by the statements of his wife, G. and I.K. The Court also
notes that the stamped envelopes of the letters sent by him to his family
from IK-14 have written on them “unit no. 14”, in which convicted
prisoners were allegedly held, as the place of his detention (see
paragraph 31 above).
77. Furthermore, during his detention in IK-14 the applicant, an accused
at that stage, gave statements of surrender and confession in relation to six
crimes (see paragraph 46 above). The records of those statements have not
been submitted to the Court and it remains unclear whether they were
collected during an interview by officers from the ORB police unit, as on
8 June 2004 (see paragraph 70 above). However, given the nature of those
statements under domestic law, that is to say a voluntary confession to a
crime collected by a law-enforcement official without a lawyer needing to
be present (ibid.), the fact that, after pleading his innocence when officially
questioned as a suspect and accused in the presence of his lawyer, the
applicant made such confession statements at IK-14 in the absence of his
lawyer and outside of an official interview with the investigator adds
credibility to his account of events.
78. In the light of the foregoing, the Court has sufficient grounds to
consider that the applicant’s allegations of ill-treatment by the police and
prisoners acting on their instructions were credible.
79. The Court finds that the repeated acts of violence during the
applicant’s detention between 8 June 2004 and 3 November 2004, to which
SERGEY IVANOV v. RUSSIA JUDGMENT 17
2. Procedural aspect
80. The Court observes further that the applicant’s allegations of
ill-treatment by the police and prisoners acting on their instructions were
dismissed by the domestic investigating authorities, which relied largely on
the statements of the police officers and prisoners in question denying any
wrongdoing and never ordered the applicant’s forensic medical expert
examination. The investigators based their 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).
81. The Court reiterates its finding that 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 a full range of
investigative measures are carried out (ibid., §§ 129 and 132-36).
82. The Court considers that the Government, which relied on the
superficial domestic pre-investigation inquiries, have failed to discharge
their burden of proof and produce evidence capable of casting doubt on the
applicant’s account of events (see Olisov and Others v. Russia,
nos. 10825/09 and 2 others, § 85, 2 May 2017).
83. The Court finds that the authorities failed to carry out effective
investigations into the applicants’ credible allegations of ill-treatment, as
required by Article 3 of the Convention.
3. Conclusion
84. There has accordingly been a violation of Article 3 of the
Convention under its substantive limb in that the applicant was subjected to
torture, and under its procedural limb on account of the lack of an effective
investigation into his allegations.
18 SERGEY IVANOV v. RUSSIA JUDGMENT
85. The applicant complained that his conviction had been based on
confession statements obtained from him as a result of torture. He relied on
Article 6 § 1 of the Convention, which reads in the relevant part as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a
fair ... hearing ... by [a] ... tribunal ...”
86. The Government contested that argument, referring to the findings of
the domestic investigating and judicial authorities. In particular, they
doubted that the impugned statements had “constituted the basis” for the
judgment, noting that the applicant had been tried by jury and therefore the
impugned statements, which had been presented to the jury along with the
other evidence, had not been referred to in the Nizhniy Novgorod Regional
Court’s judgment.
A. Admissibility
87. The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It further notes
that it is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
A. Damage
B. Default interest
99. 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.
4. Holds
(a) that the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 50,000 (fifty thousand euros),
plus any tax that may be chargeable, in respect of non-pecuniary
damage, to be converted into the currency of the respondent State at the
rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amount at a rate
equal to the marginal lending rate of the European Central Bank during
the default period plus three percentage points;