CASE OF LYAPIN v. RUSSIA

1. The case originated in an application (no. 46956/09) 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 Lyapin (“the applicant”), on 27 August 2009.
2. The applicant was represented by the Committee against Torture, an interregional non-governmental organisation based in Nizhniy Novgorod. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
3. The applicant alleged, in particular, that he had been tortured in police custody in order to force him to confess to crimes and that no effective investigation into his complaint of ill ‑ treatment had been carried out.
4. On 31 August 2011 the application was communicated to the Government.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1964 and lives in Nizhniy Novgorod.
6. In February 2008 a series of thefts from individual garages was committed in the Volodarskiy District of the Nizhniy Novgorod region. The Volodarskiy District police department ( ОВД по Володарскому району ) initiated a criminal investigation into the thefts.
A. The applicant ’ s alleged ill-treatment by police officers
1. The applicant ’ s apprehension
7. During the night of 24 to 25 April 2008 police officers U. and K. from the Volodarskiy District police department were patrolling an area of Ilyinogorsk in which there was a garage cooperative where some of the thefts had been committed. At 2. 30 a.m. they stopped the applicant, who had entered one of the garages.
8. According to the applicant, that night he had gone to Ilyinogorsk searching for abandoned scrap metal which he could then sell. He entered a garage, the door of which was allegedly open. He was then stopped by two police officers, who asked him to accompany them to a police station to check his identification documents. He explained that he had the documents with him and suggested that they check them right away. They insisted that he should go with them to the police station and he obeyed.
9. According to the reports of police officers U. and K. to the head of the Volodarskiy District police department of 25 April 2008 and their statements as witnesses to an investigator in the garage - thefts case of 26 April 2008, they were patrolling the garage cooperatives on the outskirts of Ilyinogorsk in order to detect persons involved in the garage thefts that had been committed previously. They heard metallic sounds and saw the applicant, who had opened and entered one of the garages. They apprehended him and took him to the Ilyinogorsk police station in order to check his identity and to establish whether he had been involved in the garage thefts. The applicant refused to accompany them to the police station, “swinging his arms” and trying to escape. Therefore they “ used physical force ” and handcuffs, in accordance with section 12 of the Police Act. At the Ilyinogorsk police station his identity was established and he was found to be in possession of homemade lock - picking tools.
10. According to the search record drawn up at the Ilyinogorsk police station, the police seized, in particular, six metal items made of screws which the applicant had on him.
2. The applicant ’ s alleged ill-treatment
11. According to the applicant, he was coerced by police officers into confessing to the garage thefts. He described his ill ‑ treatment as follows.
12. A police officer, who arrived after the applicant had been searched, took him to one of the offices and tied him up with a rope so that his head was between his legs while he was sitting on the floor with his legs crossed and his hands shackled behind his back. The police officer pressed on his back and legs. After about an hour of such treatment he was untied and placed in a cell for detainees.
13. About ten minutes later another police officer arrived and the applicant was taken to the same office and tied up again in the same way, with his hands shackled behind his back. The second police officer had a box with a handle and two wires, the last ten centimetres of which were bare. The police officers tied the wires to the applicant ’ s little fingers and the second police officer started rotating the handle. The applicant felt a sharp muscle contraction and screamed. The police officers gagged him. They took turns to rotate the handle. The wires kept falling off and the police officers had to attach them again and again. At some point they poured water over the applicant ’ s hands to exacerbate the electric shocks. The applicant lost consciousness several times. The electric shocks left burn wounds on his hands.
14. The police officers ’ first names were O. and V. Based on information which the applicant received later, he deduced that those police officers were operational officers K.O. and S.V. from the criminal investigation unit of the Volodarskiy District police department.
15. At about 7. 30 a.m. the applicant was placed back in the cell. At his request the officer on duty took him to a lavatory where he could hold his hands, which were swollen after the electric shocks, under cold water. He remained in the cell for several hours.
16. Then he was taken again to the same office, where he saw six police officers, each of whom asked him questions about the circumstances of different criminal cases. One of them kicked him in the chest and then punched him in the left ribs. That police officer took the applicant outside to participate in the examination of the applicant ’ s Gazelle truck conducted by a female investigator.
17. Thereafter the applicant was taken back inside the police station, where the police officers questioned him again, from time to time slapping him on the back of his head. When the applicant could no longer resist their pressure, they took him to some garages, where he acted in accordance with K.O. ’ s instructions, showing them the garages from which he had allegedly stolen certain property. That was recorded as an on-site verification of his statements.
18. The police officers took the applicant to the Justice of the Peace for an examination of an administrative charge against him (see paragraphs 19, 20 and 25 below). He confirmed before the judge that he had committed the administrative offence as alleged by the police. The police officers thereafter took him to the Volodarskiy District police department in Dzerzhinsk for questioning as a suspect in the garage-thefts case. The investigator gave him a ready ‑ to ‑ sign record of his examination with his confession to the garage thefts, which he signed.
3. Events after the applicant ’ s apprehension according to the police records
19. At 3 a.m. on 25 April 2008 the officer on duty at the Ilyinogorsk police station, K.S., drew up a record of the applicant ’ s administrative arrest. It stated that the applicant had been arrested in connection with his disobedience to police officers ’ lawful demands, and that a visual examination of the applicant had not revealed any injuries. According to the record, the applicant requested that his wife be notified about the place of his detention. However, the section of the record indicating who was notified about the applicant ’ s place of detention, and when, was not filled in.
20. At 3. 30 a.m. police officer U. drew up a record of the applicant ’ s administrative offence in which he described the circumstances of the applicant ’ s apprehension at 2. 30 a.m. in the same way as in his report (see paragraph 9 above). He also stated that the applicant had used coarse language and had not reacted to his and his colleague ’ s demands to stop his disorderly behaviour. The record contains the applicant ’ s explanation that on his way to the police station he had only stopped once and had not tried to break away from the police officers or to escape.
21. From 12. 45 p .m. to 2 p.m. a senior investigator, Ms M., of the investigation division of the Volodarskiy District police department carried out an examination of the applicant ’ s Gazelle truck in Ilyinogorsk.
22. From 2. 10 p.m. to 3. 20 p.m. in Ilyinogorsk investigator M. examined the applicant as a suspect in the presence of a lawyer on duty, Ya. According to the record of his examination, the applicant was suspected of having committed “ thefts from garage cooperatives in Volodarsk, Ilyinogorsk and Mulino ”. He confessed to having committed, starting from February 2008, thefts from five garages in Volodarsk, five garages in Ilyinogorsk and two garages in Mulino. No information was entered in the record about the specific garage which the applicant had entered immediately before his apprehension.
23. From 3. 30 p.m. to 3. 50 p.m., in the course of the on-site verification of the applicant ’ s statements, the applicant showed the police the garages in which he had committed the thefts.
24. At some point the head of the Ilyinogorsk police station ordered that the materials concerning the administrative case against the applicant (see paragraphs 19 and 20 above) be transferred to the Volodarskiy District Justice of the Peace for examination.
25. According to a judgment of 25 April 2008 of the Justice of the Peace of Court Circuit no. 2 of the Volodarskiy District, the applicant, who pleaded guilty, was found to have committed an administrative offence under Article 19.3 § 1 of the Code of Administrative Offences – disobedience to a police officer ’ s lawful demand ( in particular, on account of his having used coarse language and having ignored the police officers ’ requests to discontinue such behaviour ). He was sentenced to five days ’ administrative detention, to run from 2. 30 a.m. of that day.
26. Investigator M. thereafter ordered that the applicant, as a suspect in the garage ‑ thefts case, should be subjected to a measure of restraint in the form of an undertaking not to leave his place of residence and to behave properly. It was stated in that decision that the applicant had fully acknowledged his guilt.
27. A group of police officers took the applicant to Nizhniy Novgorod where they carried out a search of his flat, as ordered by investigator M. According to an official record, the search was carried out from 9. 55 p.m. to 10. 50 p.m. by operational agent V. of the criminal investigation unit of the Volodarskiy District police department in the presence of the applicant ’ s wife and two witnesses.
28. From 11. 05 p.m. to 12. 07 a.m. operational officer K.O. seized some items from the applicant ’ s other car found near his block of flats, in the presence of his wife and two witnesses.
29. After their return from Nizhniy Novgorod, police officers took the applicant to a detention facility for administrative offenders at police station no. 1 of the Dzerzhinsk Town police department to serve the five days ’ administrative detention (see paragraph 25 above). According to the detention facility records, he was placed there at 2 a.m. on 26 April 2008. The records did not mention any injuries on the applicant.
B. Medical evidence of the applicant ’ s injuries
30. In the morning of 26 April 2008 the applicant was visited by his wife and brother. At 10. 10 a.m. a police officer on duty called an ambulance at the applicant ’ s request.
31. According to the medical records, the applicant was examined by an ambulance doctor, Ms V., at 10.28 a.m. He complained of pain in the left side of his chest whenever he made the slightest movement or breathed, pain in the neck and heaviness in his head and explained that he had been beaten up and kicked. An examination revealed that he was suffering sharp pain around the eighth and ninth ribs on the left side, abrasions on his cheekbones and on one of his shoulders, and swelling and hyperaemia of both hands. The applicant was diagnosed with a closed fracture of the left ribs, abrasions on his face and back, and arterial hypertension. He was provided with first aid. The ambulance doctor considered that his condition was incompatible with detention and necessitated his further examination at a traumatology centre.
32. The applicant was therefore released from the detention facility and taken by ambulance to the Dzerzhinsk traumatology centre, where he was examined at 10. 55 a.m. and diagnosed with multiple soft - tissue bruises on his face, contusions of the rib cage and abrasions on his wrists. He explained that he had been beaten up by police officers.
33. The applicant ’ s brother then took him to a hospital in Nizhniy Novgorod. At 12. 55 p.m. he was admitted to the Avtozavodskoy District hospital no. 40. He was diagnosed with concussion, contusions of the rib cage and neck, and burns on his hands. The latter diagnosis was made on the basis of several circular lesions under scabs measuring about 0.5 cm in diameter on his hands.
34. On 1 May 2008 the applicant was examined by an expert in forensic medicine, Dr Ya. from the Nizhniy Novgorod Regional Forensic Medical Examination Bureau, in accordance with the Avtozavodskoy Investigative Committee ’ s decision of 30 April 2008 (see paragraph 5 1 below). The expert found the following injuries on the applicant: two circular abrasions on the back of each hand measuring 0.2 centimetres in diameter; similar abrasions on the right side of the lips, notably two on the upper and one on the lower lip; and an abrasion measuring 1.5 to 0.7 centimetres on the back of the left hand near the wrist. The above -mentioned wounds had similar characteristics. The applicant also had a circular bruise on his left wrist, a bruise measuring 5.5 to 7 centimetres on the left side of his rib cage and bruises on each side of his face, notably a bruise measuring between 2.5 and 5 centimetres on the right side and a bruise measuring 3 to 4 centimetres on the left side.
35. On 7 May 2008 the applicant was released from hospital and prescribed out ‑ patient treatment, which he underwent at polyclinic no. 37.
36. On 30 May 2008 the forensic expert, Dr Ya., issued report ( акт судебно ‑ медицинского освидетельствования ) no. 104-E on the basis of the applicant ’ s examination on 1 May 2008 and his medical records from hospital no. 40. The expert considered that, given the morphological characteristics of the injuries, they could have been inflicted as alleged by the applicant.
37. On 14 July 2008 the applicant was examined by another expert in forensic medicine, Dr S. from the Nizhniy Novgorod Regional Forensic Medical Examination Bureau. The applicant had several circular scars on both hands. Having also examined the applicant ’ s medical records from hospital no. 40, and relying on Dr Ya ’ s description of his injuries of 1 May 2008, Dr S. concluded in report ( акт судебно ‑ медицинского освидетельствования ) no. 2944- D of 23 July 2008 that the applicant ’ s injuries, notably the abrasions on his hands and lips, the bruises on his face, left hand and the left side of his chest, and his concussion, had been inflicted by a blunt object and could have originated as a result of his having been punched and kicked. It was not excluded that the injuries could have been inflicted on 25 April 2008. Based on the existing data, it could not be categorically confirmed that the applicant had been subjected to electric shocks. However, it was not excluded that the abrasions and scars on his hands could have been caused as a result of their contact with a current ‑ carrying conductor. Taking into account the nature of the scars, it was not excluded that the injuries (from which the scars had originated) could have been inflicted on 25 April 2008.
38. On 16 July 2008 a psychotherapist, M., examined the applicant and diagnosed post - traumatic stress disorder, complicated by reactive depression in connection with his alleged ill-treatment by police officers on 25 April 2008. In particular, his recollection of those events provoked involuntary crying. Following the doctor ’ s recommendation, the applicant received out ‑ patient psychotherapy. As of 31 October 2008 his condition improved and he refused further treatment.
39. On 11 October 2008 the applicant solicited an opinion from Dr L.M. about the origin of the injuries on his hands. Dr L.M. ’ s opinion, which was based on the applicant ’ s medical records, was similar to that of Dr S.
40. A letter of 22 June 2009, signed by the head of the organisational and methodological department of hospital no. 40, stated that the lesions on the applicant ’ s hands looked more like “old burns”.
41. Forensic medical expert opinion ( заключение специалиста, судебно ‑ медицинское исследование ) no. 189/09 of 25 November 2009 was prepared by an expert in forensic medicine, Dr Sh. from the Main State Centre of Forensic Medical and Criminalistic Examinations, on the basis of the previous forensic medical expert opinions of 30 May and 23 July 200 8, another expert opinion ( 28 May 2009, no. 2153- D ) and the applicant ’ s other medical records. It stated that the medical records did not contain the necessary objective clinical symptomatology to confirm the diagnosis of the closed fracture of the ribs, the contusion of the neck and the burns on the applicant ’ s hands. As regards the lesions on the applicant ’ s hands, they lacked objective morphological characteristics typical of lesions caused by electric current. The diagnosis could not, therefore, be the subject of forensic medical assessment. The applicant ’ s other injuries recorded in connection with the events of 25 April 2008, notably his concussion, the bruises on his face, the abrasions on his lips and on the back of his hands, the circular bruise on his left wrist and the contusion of the left side of his rib cage, were objectively supported by the medical documentation. The circular bruise on the left wrist could have been caused by a handcuff. The remaining injuries had been inflicted as a result of an impact with a blunt hard object. This could have been a fist, a shod foot or any other blunt hard object with a limited surface, given the form, small size and isolated character of the injuries. The lesions on the applicant ’ s face and hands could not have been caused as a result of the applicant ’ s rubbing his face with his denim jacket and sitting on his hands ( as had been suggested by police officers Sh. and M., see paragraphs 58 and 60 below). The injuries could have been inflicted on 25 April 2008. They had caused a short-term – not exceeding twenty-one days – health disorder and should therefore be classified as minor health damage.
C. Appeal against the judgment in the administrative proceedings
42. On 1 July 2008 the applicant lodged an appeal against the judgment of the Justice of the Peace of 25 April 2008 (see paragraph 25 above) and asked for an extension of the deadline for the appeal. He argued that the administrative case against him had been fabricated by the police.
43. On 5 August 2008 the Volodarskiy District Court heard the applicant, who recounted the events of 25 April 2008 and explained that he had pleaded guilty before the Justice of the Peace because he had been intimidated as a result of his ill-treatment at the Ilyinogorsk police station and because a police officer had been present at that hearing.
44. The District Court found no good reasons for the applicant ’ s failure to lodge his appeal earlier and rejected his request for an extension of the deadline for appealing.
D. Criminal proceedings against the applicant
45. On 4 June 2008 the applicant was charged with seven counts of theft from garages committed in February- March 2008. When questioned as an accused in the presence of a lawyer of his choice on 24 June 2008, he denied having committed the thefts and stated that his earlier self ‑ incriminating statements had been given as a result of ill ‑ treatment by the police.
46. At a hearing before the Volodarskiy District Court of the Nizhniy Novgorod Region, the victims asked the court to terminate the proceedings since the applicant had fully compensated them for the damage and apologised. The applicant pleaded guilty of seven counts of theft and asked that the victims ’ request be granted. On 27 August 2008 the District Court granted the victims ’ request and terminated the criminal proceedings against the applicant for reconciliation between the parties.
E. Investigative committee ’ s inquiry
47. At 11. 24 a.m. on 26 April 2008 the Dzerzhinsk traumatology centre reported to the Volodarskiy District police department about the medical assistance administered that morning to the applicant, who had allegedly been beaten up by police officers in Ilyinogorsk on the night of 25 April 2008 (see paragraph 32 above). The Volodarskiy District police department transferred the report to the Dzerzhinsk inter-district investigation division of the investigative committee at the Nizhniy Novgorod regional prosecutor ’ s office ( Дзержинский межрайонный следственный отдел следственного управления Следственного комитета при прокуратуре РФ по Нижегородской области, “the Dzerzhinsk Investigative Committee”) on 4 May 2008.
48. At 4. 15 p.m. on 26 April 2008, hospital no. 40 reported to the Avtozavodskoy District police department of Nizhniy Novgorod that the applicant had been hospitalised with injuries allegedly sustained as a result of beatings by police officers in the Volodarskiy District (see paragraph 33 above). On the same day the applicant, who resided in the Avtozavodskoy District, lodged an application with the head of the same police department requesting that criminal proceedings be brought against the police officers who had ill ‑ treated him at the Ilyinogorsk police station on the night of 25 April 2008.
49. On 28 April 2008 the Avtozavodskoy District police department transferred the materials concerning the applicant ’ s alleged ill-treatment to the Volodarskiy District police department, which in its turn transferred them to the Dzerzhinsk Investigative Committee on 19 May 2008.
50. In the meantime, on 30 April 2008 the Avtozavodskoy District investigation division of the investigative committee at the Nizhniy Novgorod regional prosecutor ’ s office also received the applicant ’ s complaint of ill ‑ treatment. The applicant stated that he could identify the police officers who had ill-treated him, including those who had done so on the instructions of the investigator in charge of the garage - thefts case.
51. On the same day an investigator of the Avtozavodskoy Investigative Committee started a pre-investigation inquiry into the applicant ’ s allegation and ordered his forensic medical examination ( судебно ‑ медицинское освидетельствование ). In her decision she stated that during the night from 25 to 26 April 2008 the applicant had allegedly been gagged, tied up with a rope, punched and kicked, and electric current had allegedly been applied to him leaving burns marks.
52. On 2 May 2008 the head of the Avtozavodskoy Investigative Committee granted the investigator ’ s request for an extension of the time ‑ limit for the pre ‑ investigation inquiry to ten days, in order to receive the applicant ’ s “ explanations ” (see paragraph 10 5 below).
53. The applicant ’ s wife and the applicant gave “explanations” to the investigator on 5 and 6 May 2008, respectively. In describing his ill ‑ treatment at the Ilyinogorsk police station the applicant stated, in particular, that police officers O. and V. had locked the door of the office from the inside. They had tied his legs with a rope, which they pulled over his shoulders to shackle his hands behind his back, and attached them to handcuffs, thereby bending his head below the level of and between his knees, which were pulled aside. O. had stepped and jumped on his knees, causing him severe pain. O. had also slapped him in the back of his head several times. They had demanded that he confess to the thefts which had been committed in the district. Later in the same office, he had been questioned about the thefts by O., V. and other police officers. One of them had kicked him in the chest and punched him under the left armpit, making it difficult for him to breath. They had mocked him, hit and slapped him. The applicant stated that he could identify police officers O., V. and the third police officer who had kicked and punched him. He described their appearance and how they had been dressed on 25 April 2008.
54. On 6 May 2008 “explanations” were also received from a neurosurgeon of hospital no. 40, who had supervised the applicant ’ s treatment. He confirmed the information in the hospital medical records.
55. On the same day the investigator ordered that the applicant ’ s allegation of ill-treatment by Volodarskiy District police department officers, whose actions revealed elements of a crime under Article 286 § 3 (a) of the Criminal Code, be transferred for investigation to the Dzerzhinsk Investigative Committee.
56. On 7 May 2008 an investigator of the Dzerzhinsk Investigative Committee received an “explanation” from police officer U., who stated, inter alia, that following the applicant ’ s refusal to accompany him and police officer K. to the police station, physical force had been applied to the applicant, notably his arms had been twisted behind his back and he had been handcuffed. U. denied using any other physical force.
57. On the next day the deputy head of the Dzerzhinsk Investigative Committee, like in the proceedings before the Avtozavodskoy Investigative Committee, granted the investigator ’ s request to extend the initial three ‑ day time ‑ limit for the pre-investigation inquiry to ten days in order to examine the applicant, to identify and examine the police officers who had allegedly beaten him up, and to carry out a medical examination of the applicant after his recovery.
58. On 11 May 2008 the investigator received “explanations” from senior operational officer Sh. from the criminal investigation unit of the Volodarskiy District police department, who had seen the applicant in a cell at the Ilyinogorsk police station. Sh. stated that the applicant “had been sitting on his hands and, therefore, when taken out of the cell his hands had been swollen”. Sh. further stated that the applicant “had been rubbing his face with his denim jacket”. According to Sh., this had caused an irritation to the skin on the applicant ’ s face. Sh. denied any violence or threats towards the applicant. In Sh. ’ s opinion the applicant had inflicted his injuries on himself in order to complain afterwards that police officers had used unlawful investigative methods.
59. On 12 May 2008 “explanations” were received from the investigator, Ms M. She stated that operational support in the garage - thefts case had been provided by officers K. O. and S. V. She had arrived at the Ilyinogorsk police station as a member of an investigative task force set up in connection with the series of thefts from garages, questioned the applicant and carried out an on ‑ site verification of his statements. The applicant had had no visible injuries. She denied that she had instructed the police officers to beat the applicant up and considered the applicant ’ s allegation a slander with a view to avoiding liability for his crimes.
60. On 16 May 2008 the head of the criminal investigation unit of the Volodarskiy District police department, Mr M., explained that a report had been received from the Volodarskiy District police department officer on duty about the apprehension of the applicant, who had forced open a garage door in Ilyinogorsk. As thefts in the proximity of Ilyinogorsk had become more frequent, an investigative task force had been sent to the scene of the incident. When Mr M. had arrived at the Ilyinogorsk police station, he had seen the applicant, who “had been sitting on his hands and, therefore, when taken out of the cell his hands had been swollen”. The applicant had had an irritation on the skin of his face as though he had rubbed it. The applicant had indeed been rubbing his face with his denim jacket. M. had rebuked the applicant for rubbing his face in order to injure himself. M. denied any violence or threats towards the applicant. He considered that the applicant had inflicted his injuries on himself in order to complain afterwards that police officers had used unlawful investigative methods.
61. On the same day the investigator ’ s request for an extension of the time ‑ limit to twenty days for the pre-investigation inquiry was granted. On 26 May 2008 the pre-investigation inquiry was extended for ten more days.
62. On 28 May 2008 “explanations” were received from operational officer K. O. He stated that he and operational officer S. V. had interviewed the applicant after his arrest on 25 April 2008. He alleged that the applicant had refused to communicate with them and had been placed back in a police cell. K.O. had taken the applicant to Nizhniy Novgorod to carry out a search of his flat. There had been no visible injuries on the applicant except for some redness around his temples.
63. On 29 May 2008 operational officer S. V. explained that on the night of 25 April 2008 he had been informed by phone about the applicant ’ s apprehension. He had gone to the Ilyinogorsk police station in order to check whether the applicant had been involved in thefts from garages committed recently in Mulino. After his arrival he had joined K.O., who had been interviewing the applicant. The applicant had had no visible injuries, except for some redness on his face. The applicant had denied his involvement in the crimes and had not wished to talk to them. He had therefore been placed in a police cell.
64. Both K.O. and S.V. denied any use of violence against the applicant at the Ilyinogorsk police station. They supposed that the applicant had either inflicted his injuries on himself in order to compromise the police and thereby avoid liability for his crimes, or could have sustained the injuries during his apprehension.
1. First refusal to open a criminal case and its revocation
65. Relying on the above “explanations” by the police officers and forensic medical report no. 104-E (see paragraph 36 above), the investigator of the Dzerzhinsk Investigative Committee concluded in his decision of 6 June 2008 that the applicant ’ s allegations had not been confirmed. He ordered, pursuant to Article 24 § 1 (2) of the Code of Criminal Procedure (“ CCrP ”), that no criminal case be opened for lack of the elements of a crime, under Articles 285 and 286 of the Criminal Code, in the acts of investigator M. and police officers U. and K., who had acted in accordance with the Police Act, and officers of the criminal investigation unit of the Volodarskiy District police department, K.O., S. V., Sh. and M.
66. The investigator stated that the time at which the applicant ’ s injuries had been inflicted, which the forensic medical expert had estimated in report no. 104 ‑ E as the night from 25 to 26 April 2008, did not match the time of the applicant ’ s apprehension and the ensuing investigative activities. The allegation concerning burns as a result of torture by electric current had not been confirmed by the applicant ’ s medical examination. Lastly, the investigator held that the applicant ’ s allegation of ill ‑ treatment by the police had been used as a defence aimed at avoiding liability for the crimes committed by him.
67. On 3 September 2008 the decision of 6 June 2008 was revoked as unfounded by an acting head of the Dzerzhinsk Investigative Committee. He ordered an additional pre-investigation inquiry, in particular another forensic medical examination of the applicant with a view to determining whether his injuries could have been caused in circumstances as suggested by police officers U., K. and M. The time-limit for the pre ‑ investigation inquiry was extended to ten days.
2. Second refusal to open a criminal case and its revocation
68. On 11 September 2008 an investigator of the Dzerzhinsk Investigative Committee issued a new decision refusing to open a criminal case on the grounds that it followed from “ explanations” received from Dr Ya. that the applicant could have sustained his injuries “ in circumstances as suggested by the Volodarskiy District police department officers, that is in the course of his apprehension ”. The decision did not quote or describe in detail either Dr Ya. ’ s “explanations” or “ the circumstances as suggested by the Volodarskiy District police department officers”. It referred to the initial reports and previously received explanations by U., K. and other police officers (see, in particular, paragraphs 9 and 56 above).
69. On 11 February 2009 the Dzerzhinsk Investigative Committee revoked its decision of 11 September 200 8 and ordered an additional pre ‑ investigation inquiry to rectify the defects identified in the Town Court ’ s decision of 29 December 2008 (see paragraph 8 4 below).
3. Seven subsequent refusals to open a criminal case and their revocation
70. There followed a series of refusals by investigators of the Dzerzhinsk Investigative Committee to open a criminal case on the same grounds and for the same reasons as those in the decision of 11 September 2008, with some new information added. Each time, the decisions were revoked by the investigative committee itself in view of the unsatisfactory and incomplete inquiry. They were delivered on the following dates:
- third refusal on 24 February 2009, revoked on 25 February 2009;
- fourth refusal on 4 March 2009 (“explanations” from the ambulance staff who examined the applicant on 25 April 2008, consistent with the relevant medical records, were added), revoked on 6 May 2009;
- fifth refusal on 8 June 2009, revoked on 15 June 2009;
- sixth refusal on 25 June 2009, revoked on 15 July 2009;
- seventh refusal on 15 July 2009 (a statement by Ms P., a witness during the search of the applicant ’ s flat on 25 April 2008, was added; she stated, in particular, that during the search the applicant had looked bad, his face had been “greenish” and he had asked for water), set aside by the main department of procedural control of the investigative committee at the General Prosecutor ’ s Office of the Russian Federation ( Главное управление процессуального контроля Следственного комитета при прокуратуре РФ ) on 3 September 2009;
- eighth refusal on 25 September 2009 ( information about the outcome of the criminal proceedings against the applicant added), set aside on 20 November 2009 by the main department of procedural control of the investigative committee at the General Prosecutor ’ s Office which noted, in particular, the following defects: the failure to question police officer K. and the police officers on duty at the Ilyinogorsk police station about the circumstances of the applicant ’ s apprehension; the inconsistencies between the applicant ’ s and the police officers ’ statements about the origin of the injuries; and the inconsistency between the forensic medical report, according to which the alleged ill-treatment had taken place during the night from 25 to 26 April 2008 (see paragraphs 34, 36 and 51), and the statements by the applicant and the police officers, according to which the incident had taken place during the night from 24 to 25 April 2008;
- ninth refusal on 14 December 2009 (it was added that no elements of crimes, under Articles 318 and 319 of the Criminal Code, had been established in the applicant ’ s actions during his arrest ), revoked on the same day.
4. Tenth refusal to open a criminal case
71. On 24 December 2009 the investigator of the Dzerzhinsk Investigative Committee took a new decision in which he held – as in the previous decisions – that pursuant to Article 24 § 1 (2 ) of the CCrP, no criminal case should be opened into the applicant ’ s allegation of ill ‑ treatment by police officers. The decision cited new “explanations” by some police officers about the events of 25 April 2008, which are summarised below. The decision cited the same “explanations” by police officer U. as before (see paragraph 56 above).
72. Police officer K. stated, in particular, that on their way to the police station the applicant had attempted to run away. K. had managed to grab him by the sleeve of his jacket. K. and U. had pushed him face down on the asphalt, twisted his hands behind his back and handcuffed him. They had retained him on the ground for about ten minutes until he had stopped resisting and insulting them. No other physical force had been used on him. At the police station the applicant had been unshackled and searched. Thereafter, operational agent K.O. had arrived at the police station and taken the applicant to his office. K. had not seen the applicant since then. Later operational agent S.V. had stayed with the applicant in that office, while K., U. and K.O. had searched for the applicant ’ s car.
73. Police officers M. and Sh. explained, in particular, that they had arrived in Ilyinogorsk together with the investigator, Ms M., and police officer P. from the Volodarskiy District police department in connection with the applicant ’ s arrest and their work on a series of unsolved garage thefts. They had arrived at the Ilyinogorsk police station at about 11.30 a.m. The applicant had been taken to K.O. ’ s office for questioning.
74. The decision also referred to police officer K.O., who had stated, in particular, that he had arrived at the Ilyinogorsk police station following a telephone call from an officer on duty, B., about the applicant ’ s apprehension. K. had told K.O. about the circumstances of the applicant ’ s apprehension. In particular, K. had seen, in the garage being opened by the applicant, some things that he had collected and was preparing to carry away. B. had said that the applicant had had a bunch of metal picklocks on him. K.O. had believed that the applicant had been involved in the series of garage thefts. The type of lock on the garage which the applicant had opened was the same as those on the other garages from which thefts had been committed. He had taken the applicant to his office and questioned him until 3 a.m. No one else had been present in his office. The applicant had stated that he had had no previous criminal convictions. K.O. had phoned the information centre of the Nizhniy Novgorod regional police department, which had informed him that the applicant had previously been convicted of garage thefts in the Avtozavodskoy District of Nizhniy Novgorod. According to the records of the information centre, the applicant ’ s mobile phone had been registered as missing in connection with a garage theft in Dzerzhinsk. At about 4 a.m. police officer S.V. had arrived and started interviewing the applicant in K.O. ’ s office. The applicant had not wished to communicate with them and they had taken him to the officer on duty.
75. K.O. had also explained that he, S.V., K. and U. had searched for the applicant ’ s car, which they had found in one of the streets in Ilyinogorsk. When looking inside K.O. had seen a spade resembling one which had been stolen from one of the garages. Afterwards they had returned to the police station and waited for the arrival of the investigative task force of the Volodarskiy District police department. The task force consisted of M., Sh. and P., investigator Ms M. and an expert criminologist, I. They had arrived at about midday and carried out investigative measures. In particular, investigator M. had questioned the applicant and then conducted the on ‑ site verification of his statements. The applicant was then taken to the Justice of the Peace.
76. Police officer S.V. ’ s new “explanations” were largely similar to those of K.O., with some discrepancies in respect of the time of the events. According to S. V., the investigative task force arrived at the Ilyinogorsk police station at about 10 a.m. The group that carried out the searches in Nizhniy Novgorod returned to Dzerzhinsk together with the applicant at about 1 a.m. on 26 April 2008, after which S. V. and another police officer took the applicant to the Dzerzhinsk detention facility to serve his administrative sentence.
77. B., an officer on duty at the Ilyinogorsk police station on 25 April 2008, explained that at about 1 a.m. police officers U. and K. had taken the applicant to the police station. He had not seen any injuries on the applicant. The applicant had been searched. B. had called K.O., who had arrived fifteen minutes later and had taken the applicant to his office. He had not heard any shouts or noise from K.O. ’ s office. B. did not remember the applicant being brought back and had left at 8 a.m. when his shift had ended.
78. The decision of 24 December 2009 also cited the forensic medical expert report no. 189/09 of 25 November 2009 (see paragraph 41 above). The investigator concluded that the applicant ’ s medical examination had not confirmed his allegation that he had sustained burns on his hands as a result of torture by electric current. His other injuries – the abrasions on his face, the bruise on his chest and concussion – could have been caused by police officers U. and K. in the course of his apprehension when they had pushed him face down on the asphalt and retained him in that position. The lesions on his wrists could have been caused by handcuffs, which had been used by U. and K. at the time of his arrest. The actions of U. and K. had not violated the provisions of the Police Act and, therefore, did not carry the elements of a crime under Articles 285 and 286 of the Criminal Code. The investigator concluded that the applicant ’ s allegation of ill ‑ treatment by the police officers from the criminal investigation unit had not been confirmed by the results of the pre-investigation inquiry.
F. Judicial review of the investigative committee ’ s decisions under Article 125 of the CCrP
1. Article 125 review of the first refusal to open a criminal case
79. The applicant appealed against the investigator ’ s decision of 6 June 2008 (see paragraph 65 above), arguing, in particular, that he had not been personally interviewed by the investigator, the origin of his injuries had not been established and detainees at the Ilyinogorsk police station on 25 April 2008 had not been identified and interviewed.
80. On 8 August 2008 the Dzerzhinsk Town Court dismissed the applicant ’ s appeal. It noted that a criminal case against the applicant on charges of garage thefts had been pending before the Volodarskiy District Court since 23 July 2008. The Town Court held that any assessment of the applicant ’ s allegation that physical force had been used against him during questioning would inevitably lead to an assessment of the evidence on which the indictment against him was based. The Town Court had no jurisdiction over that matter, which had to be dealt with at a hearing in the applicant ’ s criminal case.
81. On 24 October 2008 the Nizhniy Novgorod Regional Court rejected an appeal lodged by the applicant against the Town Court ’ s decision and fully endorsed the Town Court ’ s findings.
2. Article 125 review of the second refusal to open a criminal case
82. On 3 October 2008 the Dzerzhinsk Town Court dismissed an appeal lodged by the applicant against the investigator ’ s decision of 11 September 2008 (see paragraph 68 above). It held, in particular, that it had been established during the pre ‑ investigation inquiry that the police officers had used physical force and handcuffs lawfully in order to apprehend the applicant. It followed from Dr Ya. ’ s “explanations” that the applicant ’ s injuries could have been received in the course of his apprehension, as had been suggested by the Volodarskiy District police department officers.
83. On 9 December 2008 the Nizhniy Novgorod Regional Court granted an appeal lodged by the applicant against the Town Court ’ s decision. It found that the Town Court had failed properly to assess the applicant ’ s arguments about the investigative authority ’ s omissions in collecting evidence. Thus, by confirming that the forensic medical experts had not been questioned about the applicant ’ s burns, the Town Court had in fact acknowledged that the applicant ’ s version of events had not been properly assessed. It had also failed to assess the police officers ’ statements in respect of the applicant ’ s injuries and their origin, in particular his concussion. The Town Court ’ s finding that the applicant could have sustained the injuries during his apprehension had not been based on a proper assessment of Dr Ya. ’ s “ explanations ”. Those “ explanations ” did not contain any detailed information which would allow the court to come to such a conclusion.
84. On 29 December 2008 the Town Court declared the investigator ’ s decision of 11 September 2008 unfounded in view of the incomplete pre ‑ investigation inquiry, noting the same defects as those highlighted by the Regional Court. The decision came into force on 11 January 2009 and was served on the investigative committee on 19 January 2009.
3. Article 125 review of the eighth refusal to open a criminal case
85. On 14 October 2009 the Dzerzhinsk Town Court examined an appeal lodged by the applicant against the investigator ’ s decision of 25 September 2009 (see paragraph 70 above). The applicant argued that the pre ‑ investigation inquiry had not met the requirements of an effective investigation according to the Court ’ s case-law under Article 3 of the Convention. He also argued that the investigator ’ s repeated refusals to institute criminal proceedings were unlawful and lacked reasons (he referred to Aksoy v. Turkey, 18 December 1996, § 98, Reports of Judgments and Decisions 1996-VI; Aydın v. Turkey, 25 September 1997, § 106, Reports 1997 ‑ VI; and Mikheyev v. Russia, no. 7 7617/01, § 108, 26 January 2006 ). In particular, the investigator had not interviewed the applicant and his wife and had failed time and again to make a legal assessment of the applicant ’ s injuries, a failing which had been established by the courts in the course of a previous Article 125 review; the police officers ’ suggestions that the injuries had been self ‑ inflicted had been refuted by the expert conclusions in report no. 104 ‑ E; the allegation concerning the infliction of electric shocks had been found groundless despite the fact that the expert opinions had not excluded that possibility; the investigator had communicated the wrong time (the night of 25 to 26 April 2008 instead of 24 to 25 April 2008) of the alleged ill ‑ treatment to the medical experts; and Dr Ya. ’ s “explanation” that the applicant could have sustained his injuries in “circumstances as suggested by police officers K., U. and M.” was not precise and lacked information as to what those circumstances were and which injuries were concerned.
86. The applicant further argued that the facts of the case could only be established as a result of investigative measures within the framework of a criminal case, such as the identification of the police officers responsible for the ill ‑ treatment, a confrontation between him and the police officers and their questioning. The Volodarskiy District assistant prosecutor had submitted to the court that the applicant ’ s arguments were lawful and reasoned, and that the Dzerzhinsk Investigative Committee ’ s decision ought to be set aside as unlawful.
87. The Town Court found the applicant ’ s submissions well founded and the investigative committee ’ s decision unlawful and unreasoned. It ordered that the shortcomings revealed be corrected by the head of the Dzerzhinsk Investigative Committee.
4. Article 125 review of the tenth refusal to open a criminal case
88. On 8 February 2010 the Dzerzhinsk Town Court dismissed the applicant ’ s appeal against the investigator ’ s decision of 24 December 2009 (see paragraphs 71-7 8 above). It considered that all instructions for correcting the defects of the previous pre ‑ investigation inquiries, in particular those set out in the decision of the investigative committee ’ s main department of procedural control of 20 November 2009 (see paragraph 70 above), had now been fulfilled; the pre ‑ investigation inquiry had therefore been thorough and the decision lawful and reasoned.
89. The applicant appealed against the Town Court ’ s decision, relying on the Convention case-law and arguing, in particular, that in order to take a lawful and reasoned decision it was necessary to carry out investigative measures such as identification, confrontation, questioning of the police officers, investigative experiments and on-site verification of statements. That would only be possible within the framework of a criminal case, which the investigative committee had never opened.
90. On 16 April 2010 the Nizhniy Novgorod Regional Court rejected the applicant ’ s appeal. It stated that the examination of a refusal to institute criminal proceedings within the meaning of Article 125 of the CCrP required a court to examine whether the procedure for taking such a decision had complied with the legal requirements and whether an applicant ’ s rights and freedoms had been observed in the course of the collection of evidence which served as the basis for such a refusal. The assessment of that evidence fell outside the scope of the examination under Article 125. It endorsed the Town Court ’ s findings and upheld its decision.
G. Civil law action in respect of ineffective investigation
91. The applicant lodged a civil action for damages incurred as a result of the Dzerzhinsk Investigative Committee ’ s failure to conduct an effective investigation into his allegation of ill-treatment by the police, claiming compensation for non-pecuniary damage in the amount of 2,000 Russian roubles (RUB).
92. On 8 July 2009 the Sovetskiy District Court of Nizhniy Novgorod held that the investigative committee ’ s decisions refusing to institute criminal proceedings against the police officers, which were taken on the basis of incomplete inquiries and subsequently revoked by the investigative committee ’ s own officials or quashed by the courts, had violated the applicant ’ s right to an effective investigation under the Convention. The investigative committee ’ s decision of 22 September 2008 to refuse the applicant ’ s representative access to the materials of the pre-investigation inquiry had violated his constitutional rights. The District Court found that as a result of such actions and decisions on the part of the investigative committee, the applicant had suffered non-pecuniary damage.
93. It further noted, having regard to the investigative committee ’ s decision of 25 June 2009 (see paragraph 70 above), that the applicant ’ s allegations of ill-treatment had not been confirmed by the pre-investigation inquiry, despite its “thoroughness, completeness and length”. The District Court also stated that the applicant was also responsible for the revocation of the decisions not to institute criminal proceedings, which had been triggered by his complaints.
94. In its judgment of 8 July 2009 the District Court awarded the applicant compensation in the amount of RUB 500 for the non ‑ pecuniary damage suffered by him, to be paid by the federal treasury. The judgment came into force on 27 July 2009.
95. The applicant ’ s alleged ill-treatment in police custody and the investigative authority ’ s response to his complaint was reported by the Russian mass media. Information about his alleged ill-treatment by the police was included in Amnesty International ’ s report of 2009 on “The state of the world ’ s human rights ”.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Prohibition of torture and other ill-treatment
96. The relevant provisions of the Constitution of the Russian Federation read as follows:
“ Human and civil rights and freedoms shall be directly enforced. They shall determine the meaning, content and application of laws, the activities of the legislative and executive authorities, and local self-government and shall be ensured by the administration of justice. ”
“1. Human dignity shall be protected by the State. Nothing may serve as a basis for derogation therefrom.
2. No one shall be subjected to torture, violence or other severe or degrading treatment or punishment ...”
97. Article 9 of the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, “CCrP” ) prohibits violence, torture or any other cruel or degrading treatment of participants in criminal proceedings.
98. Article 286 § 3 of the Criminal Code of the Russian Federation provides that the actions of a public official which clearly exceed his authority and entail a substantial violation of an individual ’ s rights and lawful interests, committed with violence or the threat of violence, are punishable by three to ten years ’ imprisonment, with a prohibition on occupying certain posts or engaging in certain activities for a period of three years.
B. Procedure for examining a criminal complaint
99. The CCrP, as in force at the material time, provided as follows:
Article 140. Grounds for opening a criminal case
“ 1. A criminal case may be opened in the event of :
2. Sufficient data disclosing elements of a crime shall serve as grounds for opening a criminal case. ”
Article 144. Procedure for examining a report of a crime
“ 1. An inquiry officer, inquiry agency, investigator, or 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 the filing of the report ... [having] the right to order that the examination of documents or inspection be performed with the participation of experts. ...
3. A head of an investigation unit or head of an inquiry agency ... may extend the time period specified in paragraph (1) of this Article to up to ten days or, where the examination of documents or inspections are to be performed, up to 30 days ... ”
Article 145. Decisions to be taken following examination of a report of a crime
“ 1. An inquiry officer, inquiry agency, investigator or head of an investigation unit shall issue one of the following decisions as a result of the examination of a report of a crime:
1) to open a criminal case, in accordance with the procedure established by Article 146 of the present Code;
2) to refuse to open a criminal case;
3) to transfer the report of a crime [to a competent investigating authority ] with the relevant jurisdiction ... ”
Article 148. Refusal to open a criminal case
“ 1. In the event of the absence of grounds for opening a criminal case, a head of an investigation unit, an investigator, inquiry agency or inquiry officer shall issue a decision about a refusal to open a criminal case. ...
5. A refusal to open a criminal case may be appealed against to a prosecutor, head of an investigation unit or court in accordance with the procedures established by Articles 124 and 125 of the present Code.
6. ... Having declared a refusal by an investigator ... to open a criminal case unlawful or unfounded, a head of a relevant investigation unit shall set aside the decision and open a criminal case, or remit the materials for additional examination together with his or her instructions fixing a deadline for their execution.
7. Having declared a refusal to open a criminal case unlawful or unfounded, a judge shall issue a decision to that effect and transmit it for execution to a head of an investigation unit ... and duly notify the applicant. ”
Article 149. Referral of a criminal case
“After taking a decision to open a criminal case ... :
2) an investigator shall start a preliminary investigation; ... ”
Article 125. Judicial examination of complaints
“1. The decisions of an inquiry officer, investigator, or head of an investigation unit refusing to open a criminal case ... or any other decisions and acts (failure to act) which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede citizens ’ access to justice, may be appealed against to a district court ...
3. A judge shall examine the legality and the grounds of the impugned decisions or acts ... within five days of receipt of the complaint ...
5. Following examination of the complaint, the judge shall issue one of the following decisions:
(1) to declare the decisions or acts (failure to act) of the official unlawful or unfounded and order the official to rectify the breach committed;
(2) to dismiss the applicant ’ s complaint ...”
100. A criminal case should not be opened or should be discontinued if the alleged offence has not been committed (Article 24 § 1 (1) of the CCrP) or if the constituent elements of a criminal offence are missing (Article 24 § 1 (2) of the CCrP).
101. Preliminary investigation is regulated by Section VIII (Articles 150-226) of the CCrP. Investigative measures for establishing the facts of a criminal case and collecting evidence, which can be undertaken in the course of the preliminary investigation, include inter alia the questioning of a suspect, an accused, a victim or a witness; confrontation between persons whose statements are contradictory; on-site verification of statements; identification of a person or object; search of persons and premises; seizure of items and documents; phone ‑ tapping; and reconstruction of acts or circumstances. If, on the completion of a preliminary investigation, there is sufficient evidence to support charges against an accused, the investigating authority should prepare an indictment which, subject to prior approval by a prosecutor, is then forwarded to a court for trial.
102. Such investigative measures as the examination of a crime scene, examination of a dead body and physical examination of a suspect, an accused, a victim or a witness may be carried out, if necessary, before a criminal case is opened ( Articles 176 § 2, 178 § 4 and 179 § 1 of the CCrP).
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
103. The applicant complained that he had been subjected to torture at the Ilyinogorsk police station in order to make him confess to crimes and that there had been no effective investigation into his allegation of 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.”
104. The Government acknowledged that the applicant ’ s rights guaranteed by Article 3 of the Convention had been violated and that the domestic remedies of which the applicant availed himself had not been effective.
105. The Government submitted that in deciding whether to open a criminal case into the allegations of police officers ’ wrongdoings the investigating authority ’ s main concern was the protection of individuals ’ rights and lawful interests. Instances of ill-founded refusals to open criminal cases certainly occurred. Thus, during six months of 2010 about 41,000 ill ‑ founded refusals to open a criminal case had been revoked by the heads of investigative bodies ( they referred to Communication DD(2010)591 of the Russian Federation of 23 November 2010 concerning the Mikheyev group of cases for the 1100 th meeting of the Committee of Ministers of the Council of Europe). However, such instances received a fair assessment and were followed up with strict disciplinary measures against the guilty officials, as far as their dismissal from investigative organs. The Government further explained that the inquiry into a complaint of a crime under Article 144 of the Code of Criminal Procedure was not an “investigation” ( расследование ) within the meaning of the Code. Thus, for example, “ explanations” ( объяснения ) given in the course of such inquiry should be distinguished from “statements” ( показания ) in criminal proceedings. Individuals who gave “explanations” bore no liability for false statements or for a refusal to give “explanations”.
106. While acknowledging that the domestic remedies had not been effective in the applicant ’ s case, the Government stressed that the domestic legal system did, in principle, provide for effective remedies for victims of police ill-treatment. Firstly, there was an effective criminal-law remedy, notably a criminal investigation into the allegations of ill-treatment by police officers which could lead to the conviction of police officers. The Government referred to and submitted a series of judgments delivered by courts in 200 8 - 2010 in different regions ( the Astrakhan, Kemerovo, Lipetsk, Moscow, Rostov and Ryazan regions and the Republics of Tatarstan and Khakasiya ), in which police officers of criminal investigation units and other police staff had been convicted under Article 286 of the Criminal Code of crimes which could qualify as violations of Article 3. The Government submitted further that investigative authorities ’ acts and decisions, in particular refusals to open a criminal case, were amenable to judicial review under Article 125 of the Code of Criminal Procedure. Lastly, there were civil judicial remedies to complain about decisions and acts of State organs and their officials and to request compensation for the damage caused.
107. The applicant stated that the Government should have explicitly acknowledged that he had been subjected to torture. He disagreed with the Government that there existed effective domestic remedies for ill ‑ treatment in police custody. There were structural problems which prevented an effective investigation and prosecution in cases of ill ‑ treatment by the police. Those structural problems had been analysed in a memorandum by a group of Russian human-rights NGOs, including the applicant ’ s representative, the Committee against Torture, which had been submitted to the Committee of Ministers of the Council of Europe ( DD(2010)385 ). In particular, it was stressed that there was a common practice of replacing a full ‑ scale criminal investigation with pre ‑ investigation inquiries under Article 144 of the Code of Criminal Procedure. Such practice was an obstacle to the prompt and thorough investigation of torture cases. The short time -limits for a pre-investigation inquiry and the limited powers of an investigator within the framework of a pre ‑ investigation inquiry did not allow for establishment of the facts and circumstances of incidents. However, the prospect of an “unsuccessful” investigation not resulting in charges being brought against the alleged perpetrators, which was assessed as a professional failure, made investigators reluctant to open a criminal case. This cycle of a weak refusal to open a criminal case, its revocation, and the ensuing additional round of pre ‑ investigation inquiry was being repeated for an unlimited number of times and could last for years.
108. The Court notes that the Government ’ s acknowledgment of a violation of Article 3 in the present case, without affording the applicant appropriate and sufficient redress for that violation of the Convention, is not sufficient to deprive the applicant of his status as a “victim” for the purposes of Article 34 of the Convention (see, for example, Gäfgen v. Germany [GC], no. 22978/05, §§ 115-116, ECHR 2010). This complaint is not therefore incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) of the Convention. The Court further notes that this complaint is not manifestly ill ‑ founded and that it is not inadmissible on any other grounds. It must therefore be declared admissible.
1. The applicant ’ s alleged ill-treatment
109. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim ’ s behaviour (see Kudła v. Poland [GC], no. 30210/96, § 90, ECHR 2000 ‑ XI).
110. In order for ill-treatment to fall within the scope of Article 3 it must attain a minimum level of severity. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25).
111. Where allegations are made under Article 3 of the Convention the Court must apply a particularly thorough scrutiny. Where domestic proceedings have taken place, however, it is not the Court ’ s task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them. Although the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (see Gäfgen, cited above, § 93 ).
112. In assessing the evidence on which to base the decision as to whether there has been a violation of Article 3, the Court 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).
113. 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 persons within their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000 ‑ VII; and also Oleg Nikitin v. Russia, no. 36410/02, § 45, 9 October 2008; Gladyshev v. Russia, no. 2807/04, § 52, 30 July 2009; Alchagin v. Russia, no. 20212/05, § 53, 17 January 2012 ).
114. The Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering. Treatment has been held to be “degrading” when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or psychological resistance, or when it was such as to drive the victim to act against his will or conscience (see Gäfgen, cited above, § 89).
115. In determining whether a particular form of ill-treatment should be classified as torture, consideration must be given to the distinction, embodied in Article 3, between this notion and that of inhuman or degrading treatment. As noted in previous cases, it appears that it was the intention that the Convention should, by means of such a distinction, attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering.
( b ) Application of those principles to the present case
116. The Court notes that the applicant provided a clear and detailed account of his alleged ill ‑ treatment in police custody on 25 April 2008 (see paragraphs 11-1 8 ), consistent with his allegations before the domestic authorities (see paragraph 53 ). There is medical evidence of the applicant ’ s injuries following his release from police custody including reports by forensic medical experts, which corroborates his account (see paragraphs 31-41 above). The Court is mindful of the fact that in addition to the actual bodily injuries the applicant suffered from post ‑ traumatic stress disorder, complicated by reactive depression, for which he received psychotherapy (see paragraph 3 8 above). The applicant ’ s allegation that the police officers had subjected him to ill-treatment in order to extract his confession to the thefts appears to be consistent with the facts of the case, in particular the circumstances of the applicant ’ s arrest, the statements by those police officers who arrested him and those who questioned him following his arrest about the thefts which they were responsible for solving (see paragraphs 9, 59, 60, 63, and 74 - 7 6 above) and the applicant ’ s confession to the numerous counts of theft from garages. His confession was given after almost twelve hours spent by him at the hands of the police without being recognised as a suspect in the criminal proceedings and without being able to avail himself of the rights pertaining to that status, including access to a lawyer, notification of his detention to a third party or access to a doctor.
117. In view of the foregoing, the Court is satisfied that the applicant made a credible claim of his serious ill ‑ treatment by the police which falls to be examined under Article 3.
118. The Court further notes that the Government acknowledged that the applicant had suffered treatment at the hands of the police which amounted to a violation of Article 3.
119. Having regard to the material before it, the Court has no reason to hold otherwise. It observes that the applicant suffered various acts of physical violence including being tied up in a painful position, handcuffed, gagged, slapped, kicked, punched and subjected to electric shocks. Such treatment caused him actual bodily injury and intense physical and mental suffering. To have subjected the applicant to electric shocks by using a special device and tying him up in a painful position would have required a certain preparation and knowledge on the part of the police officers. The applicant – who was denied the rights of a person detained on suspicion of having committed a criminal offence – was entirely vulnerable vis ‑ à ‑ vis the police officers. He was intentionally subjected to the treatment described above with the aim of extracting his confession to the crimes which the police officers suspected him to have committed.
120. The Court finds that the treatment to which the applicant was subjected at the hands of the police amounted to torture.
121. There has accordingly been a violation of Article 3 under its substantive head.
2. State ’ s obligation to conduct an effective investigation
122. Turning to the State ’ s procedural obligation under Article 3 to carry out an effective investigation, the Court observes that the investigative authority dismissed the applicant ’ s allegations of his torture by police officers as manifestly ill-founded and refused to open a criminal investigation.
123. The Government acknowledged that there had been no effective investigation into the applicant ’ s complaint in breach of Article 3.
124. The Court, as with regard to the violation of Article 3 in its substantive aspect, has no reasons to hold otherwise. It considers, however, that it is required, in the circumstances of the present case and in view of the parties ’ submissions before it (see paragraphs 10 5 -10 7 above), to set forth the detailed reasons for which it comes to its conclusion.
(a) The principles established in the Court ’ s case-law
125. The Court reiterates that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State ’ s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. Such investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000 ‑ IV ).
126. The investigation into serious allegations of ill-treatment must be both prompt and thorough. The authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill ‑ founded conclusions to close their investigation or as the basis of their decisions. They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard (see, for example, Kopylov v. Russia, no. 3933/04, § 133, 29 July 2010 ). Thus, the mere fact that appropriate steps were not taken to reduce the risk of collusion between alleged perpetrators amounts to a significant shortcoming in the adequacy of the investigation (see, mutatis mutandis, Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 330, ECHR 2007 ‑ II, and Turluyeva v. Russia, no. 63638/09, § 107, 20 June 2013 ). Furthermore, the investigation must be independent, impartial and subject to public scrutiny (see Mesut Deniz v. Turkey, no. 36716/07, § 52, 5 November 2013). It should result in a reasoned decision to reassure a concerned public that the rule of law had been respected (see, mutatis mutandis, Kelly and Others v. the United Kingdom, no. 30054/96, § 118, 4 May 2001 ).
127. It falls to the State to have recourse to a procedure which would enable it to take all measures necessary for it to comply with its positive obligation of effective investigation imposed by Article 3 (see, mutatis mutandis, Sashov and Others v. Bulgaria, no. 14383/03, §§ 64, 68 and 69, 7 January 2010; see also Vanfuli v. Russia, no. 24885/05, § 79, 3 November 2011; Nechto v. Russia, no. 24893/05, § 87, 24 January 2012; and Nitsov v. Russia, no. 35389/04, § 60, 3 May 2012).
(b) Application of these principles to the present case
128. It was found above that the applicant ’ s allegation that he suffered treatment prohibited by Article 3 at the hands of the police was credible. The authorities had therefore an obligation to carry out an effective official investigation into his allegation.
129. The investigative committee carried out a pre ‑ investigation inquiry into the applicant ’ s complaint under Article 144 of the CCrP ( проверка по заявлению о преступлении ). The Court observes that a pre ‑ investigation inquiry serves as the initial stage in dealing with a criminal complaint under the Russian law on criminal procedure. It had to be carried out expediently – within three days, which could be extended to up to ten days or, if it was necessary to carry out the examination of documents, for example, up to thirty days – and should be followed by the opening of a criminal case and the carrying out of a criminal investigation if the information gathered disclosed elements of a criminal offence ( see paragraphs 9 9 - 100 above ).
130. In the present case, however, a year and almost eight months passed between the day the investigative committee received the applicant ’ s complaint of ill-treatment – 30 April 2008 – and the day it issued its latest decision on the matter, namely on 2 4 December 2009 (see paragraphs 50 and 71 above). Despite the credible evidence in support of the applicant ’ s complaint, in particular forensic medical evidence, the investigative committee refused to open a criminal case. In denying that the information gathered disclosed elements of a criminal offence the investigative committee put forward explanations as to how the applicant ’ s injuries had been caused, which cannot be considered plausible, satisfactory or convincing for the following reasons.
131. Firstly, the possibility that the applicant ’ s injuries were self ‑ inflicted ( see the police officers ’ statements, relied on by the investigative committee, that the applicant had sat on his hands and rubbed his face with his denim jacket, in paragraphs 58 and 60 above ) was excluded by the forensic medical expert (see paragraph 41 above).
Secondly, the conclusion that the injuries had been sustained in the course of the applicant ’ s apprehension (see paragraphs 68-70 above) was far ‑ fetched, as was acknowledged by the domestic courts (see paragraphs 8 3 -8 4 above). Furthermore, it did not clarify how the twisting of the applicant ’ s arms behind his back and his handcuffing – the only physical force used by police officers U. and K. according to the relevant decisions – could have explained the injuries to the applicant ’ s head and chest.
Thirdly, the latest explanation – that police officers U. and K. had pushed the applicant face down on the asphalt and retained him in that position until he had stopped resisting them – which apparently originated from the new “explanations” by police officer K., remained unsupported by police officer U. ’ s “explanations”, which maintained the original account: that the only force used was twisting the applicant ’ s arms behind his back and handcuffing him (see paragraphs 56 and 71 above). Furthermore, it was inconsistent with the opinion of the expert in forensic medicine, who considered that the applicant ’ s head, face and chest injuries could have been inflicted as a result of an impact with a blunt hard object with a limited surface, such as a fist or a shod foot, given the form, small size and isolated character of the injuries (see paragraph 41 above). Indeed, it was not supported by any medical opinion.
Lastly, in rejecting the allegation that the burns on the applicant ’ s hands were the result of electric shocks the investigative committee relied on the forensic medical report of 25 November 2009. That report stated that the description of the applicant ’ s injuries, as entered in his medical records, lacked either the morphological characteristics typical of lesions from contact with electrical current or the objective clinical symptomatology necessary to confirm the diagnosis of burns (see paragraph 41 above). The expert did not therefore find it possible to give forensic medical assessment of that diagnosis. The Court notes, however, that the above report was not the only medical opinion with respect to the injuries in question. The ambulance doctor, who saw the applicant on 26 April 2008, twenty ‑ seven hours after the alleged ill ‑ treatment, recorded the swelling and hyperaemia of both hands. Some hours later at hospital no. 40 the applicant was diagnosed with burns on his hands (see paragraphs 31 and 33 above). The possibility that the lesions and scars on his hands had been caused from contact with an electrical source was not excluded by the expert in forensic medicine, who examined the applicant in person and saw the scars on his hands on 14 July 2008, or by Dr L.M. (see paragraphs 37 and 3 9 above). The investigative committee did not explain why the 2009 expert opinion should have carried more weight. The expert who drew up the 2008 opinion had had the advantage of examining the applicant in person (notably the scars on his hands), whereas the one who drew up the 2009 opinion had not. Furthermore, the 2009 expert opinion stated that it was not possible to assess the diagnosis of the burns for lack of data in the medical records. It could not therefore be relied on as the basis for ruling out that possibility, especially in view of the other medical opinions in the case.
132. The deficiencies and poor reasoning of the investigative committee ’ s decisions were such as to cause its own hierarchical body to revoke them regularly in view of the unsatisfactory or incomplete inquiry (see paragraph 70 above). As a result of its refusal to open a criminal case, the investigative committee has never conducted a “preliminary investigation ” into the applicant ’ s alleged ill-treatment, that is, a fully fledged criminal investigation in which the whole range of investigative measures are carried out, including questioning, confrontation, identification parade, search, seizure and crime reconstruction (see paragraph 10 1 above), and which – according to the Government – constitutes an effective remedy for victims of police ill ‑ treatment under the domestic law (see paragraph 10 6 above).
133. The Court has found in previous cases against Russia concerning serious allegations of ill-treatment at the hands of the police that the belated commencement of the criminal proceedings had resulted in the loss of precious time, which could not but have had a negative impact on the success of the investigation (see Kopylov, cited above, § 137; Eldar Imanov and Azhdar Imanov v. Russia, no. 6887/02, § 99, 16 December 2010; and Shishkin v. Russia, no. 18280/04, § 100, 7 July 2011). In several cases where the authorities never instituted criminal proceedings and their investigative efforts were limited to a “pre ‑ investigation inquiry”, the Court regarded such a legal framework as inadequate, as it undermined the quality of evidence collected and the applicants ’ right to effective participation in the proceedings in the absence of the procedural status of “victim” (see, mutatis mutandis, Kleyn and Aleksandrovich v. Russia, no. 40657/04, §§ 56 ‑ 58, 3 May 2012; see further Buntov v. Russia, no. 27026/10, § § 132 ‑ 133, 5 June 2012; Savriddin Dzhurayev v. Russia, no. 71386/10, § 193, ECHR 2013 (extracts); and Beresnev v. Russia, no. 37975/02, § 98, 1 8 April 2013). In many other police ill-treatment cases in which a “pre ‑ investigation inquiry” was the only procedure employed by the investigative authority, the Court ’ s approach was to identify specific deficiencies and omissions on the part of the investigating authority in the course of the “pre ‑ investigation inquiry”, which led it to conclude that the State ’ s obligation under Article 3 to carry out an effective investigation had not been fulfilled (see Samoylov v. Russia, no. 64398/01, § § 34 ‑ 46, 2 October 2008; Valyayev v. Russia, no. 22150/04, § § 61-73, 14 February 2012; Ablyazov v. Russia, no. 22867/05, § § 58-60, 30 October 2012; Tangiyev v. Russia, no. 27610/05, § § 58-63, 11 December 2012; Markaryan v. Russia, no. 12102/05, § § 64-69, 4 April 2013; Davitidze v. Russia, no. 8810/05, §§ 110 ‑ 118, 30 May 2013; Ryabtsev v. Russia, no. 13642/06, §§ 78-84, 14 November 2013; Aleksandr Novoselov v. Russia, no. 33954/05, § § 72-78, 28 November 2013; and Velikanov v. Russia, no. 4124/08, § § 57-66, 30 January 2014).
134. The present case is another example of the investigative authority ’ s refusal to open a criminal case and to conduct a criminal investigation into credible allegations of police ill-treatment. As a result, those police officers who could have shed light on the circumstances of the applicant ’ s ill ‑ treatment were never questioned as witnesses. Some of them gave “explanations”, which did not commit them in the same way as in the context of criminal proceedings and did not entail the necessary safeguards inherent in an effective criminal investigation, such as criminal liability for perjury or for the refusal to testify (see paragraph 10 5 above). No confrontation was ever held between the applicant and the police officers who completely denied his allegations, or between the police officers whose statements were contradictory or vague. For example, operational officer K.O. stated that after his and S.V. ’ s failed attempts to interview the applicant, they had taken him to the officer on duty (see paragraph 74 above). According to the officer on duty, B., however, the applicant had been taken to K.O. ’ s office and had not been brought back (see paragraph 7 7 above). The Court observes further that the applicant informed the investigative committee shortly after the events, when his memory was still fresh, that he could identify the police officers who had allegedly ill ‑ treated him (see paragraphs 50 and 53 above). However, he was never given that possibility. As noted above in paragraph 132, the questioning of witnesses, confrontations and identification parades are among the investigative measures which can be carried out in the course of a criminal investigation only once a criminal case has been opened.
135. These shortcomings show the inability to establish, within the framework of the “pre ‑ investigation inquiry” (if it is not followed by a “preliminary investigation”), the facts of the case, in particular, the identity of the persons who could have been responsible for torturing the applicant. The “pre ‑ investigation inquiry ” alone is not capable of leading to the punishment of those responsible since the opening of a criminal case and a criminal investigation are prerequisites for bringing charges against the alleged perpetrators, which may then be examined by a court (see paragraph 10 1 above).
136. Confronted with numerous cases of this kind against Russia, the Court is bound to draw stronger inferences from the mere fact of the investigative authority ’ s refusal to open a criminal investigation into credible allegations of serious ill ‑ treatment in police custody. This is indicative of the State ’ s failure to comply with its obligation under Article 3 to carry out an effective investigation.
137. It follows that the investigative committee ’ s refusal to open a criminal case into the applicant ’ s credible allegations of torture at the hands of the police amounted to a failure to carry out an effective investigation, as required by Article 3. This conclusion makes it unnecessary for the Court to examine in detail the many rounds of the pre ‑ investigation inquiry conducted in the applicant ’ s case with a view to identifying specific deficiencies and omissions on the part of the investigative committee.
138. The investigative committee ’ s failure to discharge its duty to carry out an effective investigation was not remedied by the domestic courts which reviewed its decisions in the procedure under Article 125 of the Code of Criminal Procedure. In the first set of proceedings they declined to carry out a judicial review, referring to the pending criminal proceedings against the applicant (see paragraphs 80 -8 1 above). In another set of proceedings their decision was not executed by the investigative committee, which meant that the defect identified by the courts (see paragraphs 8 3 -8 4 above) continued to reappear in the committee ’ s seven subsequent decisions throughout the following year (see paragraphs 68 and 70 above ). Lastly, the domestic court upheld the investigative committee ’ s decision not to open a criminal case. In doing so, the court – without exercising its own independent scrutiny – satisfied itself that the defects identified by the investigative committee ’ s own hierarchy had been addressed in the committee ’ s latest decision (see paragraphs 8 8 - 90 above).
139. By failing in its duty to carry out an effective investigation, the State fostered the police officers ’ sense of impunity. The Court stresses that a proper response by the authorities in investigating serious allegations of ill ‑ treatment at the hands of the police or other similar agents of the State in compliance with the Article 3 standards is essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion or tolerance of unlawful acts (see, among other authorities, Gasanov v. the Republic of Moldova, no. 39441/09, § 50, 18 December 2012; Amine Güzel v. Turkey, no. 41844/09, § 39, 17 September 2013; and Mesut Deniz v. Turkey, no. 36716/07, § 52, 5 November 2013 ).
140. In view of the foregoing, the Court concludes that there has been a violation of Article 3, also under its procedural head.
II. ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION WITH ARTICLE 3 OF THE CONVENTION
141. The applicant complained, under Article 13 of the Convention in conjunction with Article 3, that the authorities had failed to carry out an effective investigation into his complaint of ill-treatment in police custody, and that their refusal to open a criminal case had made it impossible for him to be granted the status of “ victim ”, which could have entitled him to compensation for the alleged ill-treatment. Article 13 reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
142. The Government submitted that in view of the investigative and judicial authorities ’ decisions taken in the applicant ’ s case, the applicant ’ s right to an effective remedy had not been respected, in breach of Article 13 of the Convention in conjunction with Article 3.
143. The parties ’ other submissions were summarised in paragraphs 10 4 ‑ 10 7 above.
144. The Court notes that the complaint submitted under Article 13 of the Convention is closely linked to the issue raised under the procedural aspect of Article 3 of the Convention and that, therefore, this complaint should be declared admissible. However, having regard to the finding of a violation of Article 3 under its procedural head on account of the respondent State ’ s failure to carry out an effective investigation, it considers that it is not necessary to examine this complaint under Article 13 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
145. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
146. The applicant claimed 60,000 euros (EUR) in respect of non ‑ pecuniary damage suffered on account of the violations of the Convention in his case. He submitted that he had suffered severe emotional anguish and distress, anxiety and trauma. He had also suffered immense frustration, helplessness and injustice in the face of the indifference that the Russian authorities had demonstrated in his case by refusing to conduct an effective investigation into his complaint.
147. The Government submitted no comments.
148. The Court has found that the applicant had been subjected to torture by police officers and that the authorities had not carried out an effective investigation into his complaint. Making its assessment on an equitable basis, the Court awards the applicant EUR 4 5 ,000 in respect of non ‑ pecuniary damage, plus any tax that may be chargeable on that amount.
149. The applicant also claimed EUR 7,744.13 for legal costs and 4,516.15 Russian roubles (RUB) for postal expenses incurred before the Court.
150. The Government did not comment.
151. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,600 for the legal costs and EUR 115 for the postal expenses incurred in the proceedings before the Court, together with any tax that may be chargeable to him. The award is to be paid directly into the bank account of the applicant ’ s representative.