European Court of Human Rights

FIRST SECTION

Application no. 8049/07
by Sergey Anatolyevich NEKRASOV
against Russia
lodged on 10 February 2007

STATEMENT OF FACTS

THE FACTS

The applicant, Ms Sergey Anatolyevich Nekrasov, is a Russian national who was born in 1967 and who is currently serving a sentence of imprisonment.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1.  The applicant’s alleged ill-treatment, his arrest, medical assistance and investigation of the alleged ill-treatment

(a)  Alleged ill-treatment between 17 November and 23 November and on 29 November 2004

On 17 November 2004 the applicant was abducted, allegedly by the police. He was first brought to the premises of the Tyumen police Organised Crime Department and subsequently to a private cottage, where he was allegedly subjected to various forms of torture until 23 November 2004. He was forced to do the splits, was suffocated with a plastic bag, a book was held on top of his head and hit with a mallet, causing him to suffer head injuries, he had his arms twisted and stretched out and was given nothing to eat.

Subsequently, on 24 November 2004 the applicant was taken to the Organised Crime Department’s premises to be interrogated and was subsequently put in a temporary detention facility. He was examined by a medical assistant and discovered to have large bruises on both thighs, abrasions in the area of the nasal septum and limitation of movement in the left hand and both legs.

On 25 November 2004 the applicant was admitted to detention facility SIZO-72/2 in Zavodoukovsk, the Tyumen Region. Upon admission the applicant was discovered to have a bruise on the upper third of the left inner shoulder up to 3 cm in diameter, large bruises on the surface of his inner thighs and a large bruise on the upper third of the right inner shin. He was treated with antibiotics, vitamins, and analgesic and vascular medications.

Charges were brought against the applicant on 29 November 2004. He alleged that he had been beaten up by officers of the Organised Crime Department for his refusal to testify against himself.

On the same date the investigator ordered a review of the applicant’s medical file by a forensic medical expert.

From 30 November to 7 December 2004 the applicant was again held in the temporary detention facility. Upon his admission he could not walk unassisted, explaining that his legs hurt. No physical injuries were discovered on him. The applicant made no requests for medical assistance.

In the meantime, on 1 December 2004 the forensic medical expert concluded that it was impossible to carry out a review in the absence of the relevant documents.

On 9 December and 14 December 2004 the applicant’s lawyer complained about the beatings of 17 November - 23 November 2004 to the Prosecutor for the Leninskiy District of Tyumen and the Tyumen Regional Prosecutor respectively. Outlining the circumstances of the beatings and their consequences on the applicant’s health, he requested the institution of criminal proceedings against the perpetrators and the applicant’s urgent hospitalisation.

From 12 December to 23 December 2004 the applicant underwent hospital treatment for his injuries. An extract from his medical records indicates that he was referred to the hospital with a diagnosis of post-traumatic femoral and paroneal nerve damage, and that he was released with a diagnosis of simulating the symptoms of a number of neurological conditions.

On 27 January 2005 the investigator again ordered a review of the applicant’s medical file by a forensic medical expert.

On 28 January 2005 the forensic medical expert reported that the abrasions on the bridge of the applicant’s nose, in the region of his left elbow, left forearm, right shin and left thigh would not cause harm to the applicant’s health and had been inflicted by the impact of blunt objects, which had not left traces suitable for identification, within eight to thirteen days prior to the applicant’s examination (apparently, the report referred to the applicant’s examinations on 24 November and 25 November 2004) (report no. 691).

From 20 February to 7 April, from 16 May to 28 June, from 22 October to 7 November and from 29 November to 5 December 2005, from 27 January 2006 to an unspecified date and from 28 February to 21 March 2006 the applicant underwent hospital treatment for a variety of neurological conditions (neuropathy of the sciatic nerve, neuritis of the left radial and left paroneal nerves, osteochondrosis of the lumbosacral spine, polyneuropathy and distal paresis of the lower limbs).

In the meantime, on 27 April 2005 the investigator appointed a panel to conduct a forensic medical examination of the applicant.

On 11 May 2005 the applicant’s lawyers from the Tyumen Region branch of the nationwide advocacy group “For Human Rights” applied to the Tyumen Regional Prosecutor, claiming, inter alia, that the applicant had not been receiving adequate medical assistance and seeking the alteration of the applicant’s custodial measure.

On 24 May 2005 the applicant was examined by forensic medical experts, who on 26 May 2005 issued report no. 80 containing the following conclusions:

“... Complaints of inability to walk, absence of movement [and] numbness in the left hand, pain in the left forearm at rest and in movement, periodic enuresis. The above symptoms appeared several weeks after [the applicant] had been handcuffed for seven days by his left hand to a radiator, had received multiple blows to his arms and his legs and had been stretched out. Suffers ... from osteochondrosis of the lumbar region. Demonstrates immobility while walking, sharply [reduced mobility] in the left hand, especially the wrist. Moves with the assistance of two persons carrying him by the shoulders. Neurological status. Cranial nerves without irregularities. Diffuse hypotension in the left hand muscles. Not possible to objectify the capacity of active movement due to manifestly [feigned] behaviour. Full extent of passive movement in all articulations. The left wrist position is typical for radial nerve lesion – “wrist drop”. The left foot position is typical for peroneal nerve lesion – “foot drop”. Sensory damage impossible to reveal due to manifestly [feigned] behaviour.”

In the period between 27 April and 5 May 2006 the applicant underwent a sociomedical expert examination, resulting in the following conclusion: “lumbar spinal osteochondrosis, herniated disk, radiculopathy, simulation of neurological conditions”.

From December 2004 to August 2006 the investigator issued several decisions refusing the institution of criminal proceedings against the police officers who had allegedly ill-treated the applicant between 17 November and 23 November 2004. The most recent decision that was made available to the Court dates from 9 August 2006.

(b)  Alleged ill-treatment on 20 July 2005

On 20 July 2005 the applicant was brought to the Leninskiy District Court in Tyumen in order to participate in a hearing concerning the extension of his custody. As the applicant could not walk, he was assisted by two officers from the Organised Crime Department. After the hearing, the officers dragged the applicant out of the courthouse to the prison van, where they allegedly subjected him to severe beatings on the way to remand prison IZ-72/1 in Tyumen where the applicant was detained at the material time.

The applicant’s lawyers complained on 1 August 2005 about the above incident to the Tyumen Regional Prosecutor.

On 10 August 2005 the Prosecutor for the Leninskiy District of Tyumen refused to institute criminal proceedings against the alleged perpetrators.

2.  Seizure and attachment of the applicant’s belongings

On 20 November 2004 a search was carried out in the applicant’s flat. The investigator seized as material evidence a camera belonging to the applicant and his wife and the applicant’s hunting rifles.

On 1 June 2005 the Leninskiy District Court in Tyumen granted the investigator’s request for the impounding of a VAZ 21213 car and the attachment of a garage belonging to the applicant.

On 2 June 2005 the investigator drew up a record of the impounding of the applicant’s car and the attachment of his garage.

Following the applicant’s conviction, the rifles were destroyed and the car and the garage were confiscated to cover the damages sustained by the victims.

It appears that the applicant’s wife brought proceedings seeking to get the camera back. The outcome of those proceedings has not been disclosed to the Court.

3.  The applicant’s detention pending the investigation

On 25 November 2004 the Leninskiy District Court in Tyumen remanded the applicant in custody, referring to the particular gravity of the charges against him and the risk of his absconding and obstructing justice.

On 17 January, 15 March and 20 July 2005 the Leninskiy District Court extended the applicant’s detention until 23 March, 25 July and 23 November 2005 respectively. On each occasion the court took into consideration the particular gravity of the charges against the applicant, his being suspected of having committed several other crimes and his being unemployed, which created the risk of his absconding, resuming criminal activity and obstructing the administration of justice in the case. The court further held that the material in the case file contained no evidence to the effect that the applicant’s state of health prevented him from being detained in remand prison.

On 2 August 2005 the Tyumen Regional Court quashed the extension order of 15 March 2005 on appeal (considered in the applicant’s absence) and remitted the matter for fresh examination by a different bench.

On 19 August 2005 the Leninskiy District Court ex post facto authorised the applicant’s detention until 25 July 2005.

On 17 November 2005 the Tyumen Regional Court extended the applicant’s detention until 23 February 2006. In addition to the reasoning previously applied, the court mentioned the risk of the applicant’s hiding and destroying the evidence.

On 20 February 2006 the Tyumen Regional Court further extended the applicant’s detention pending trial for a total of eighteen months, until 23 May 2006. The court further mentioned the risk of the applicant’s exerting pressure on victims and witnesses.

On 25 May 2006 the Supreme Court of Russia upheld the above decision on appeal.

On 12 April 2006 the applicant and his lawyer started studying the case file, which comprised forty-nine volumes, fifteen audio and video tapes and material evidence.

On 17 May 2006 the Tyumen Regional Court extended the applicant’s detention on remand until he and his lawyer finished studying the case file and the case was submitted to the trial court.

The applicant appealed, claiming, inter alia, that the Regional Court had not indicated the end date of this detention period, thereby rendering it impossible to seek further judicial review of the issue.

On 10 August 2006 the Supreme Court of Russia upheld the extension order of 17 May 2006 on appeal. The Supreme Court found as follows:

“... [P]ursuant to Article 109 § 8 of the Code of Criminal Procedure, the court correctly extended the [applicant’s] detention until such time as [he] and [his] lawyer have finished studying the case file materials ...

The appeal statement to the effect that the court was required to indicate a specific date when extending [the applicant’s] detention in such circumstances was not based on [domestic] law. ...”

On 6 September 2006 the Leninskiy District Court set a deadline of 30 September 2006 for the applicant and his lawyer to finish studying the case file. The applicant appealed.

On 2 October 2006 the investigator took a decision to terminate the studying of the case file materials by the applicant and his lawyer.

The applicant’s numerous requests to be granted additional time to study the case file were to no avail.

On 14 November 2006 the Tyumen Regional Court held on appeal that the applicant and his lawyer should be given an opportunity to study all case file materials, including audio and video tapes and material evidence, until the expiry of the deadline for the conclusion of the pre-trial investigation (extended by then until 27 November 2006).

4.  The applicant’s detention pending trial

On 8 November 2006 the Tyumen Regional Court extended the applicant’s detention for thirty days, to be counted from the date on which the prosecutor approved the indictment in respect of the applicant and sent the case to the trial court.

The applicant appealed, claiming, inter alia, that the above decision had failed to indicate a specific date until which the extension of his detention was made.

On 19 January 2007 the Supreme Court upheld the above decision on appeal. In reply to the applicant’s argument, the court noted as follows:

“... As follows from the decision [of 8 November 2006], when the issue of extending [the applicant’s] detention [was being decided] the indictment had already been prepared. The time-limits for submitting the indictment to the prosecutor are determined by [domestic] law; therefore, the calculation of the time-limit for [the applicant’s] detention depended on the submission of the criminal case to the prosecutor. ...”

In the meantime, on 15 November 2006 the supervising prosecutor approved the indictment and the case against the applicant was sent to the Tyumen Regional Court for trial.

On 14 December 2006 the Tyumen Regional Court scheduled the opening date of the trial and extended the applicant’s and four co-defendants’ detention until 15 June 2007.

On 6 June, 2 August and 2 November 2007 the Tyumen Regional Court extended the applicant’s and another of his co-defendants’ (the fourth, the third and the second respectively) detention until 15 August and 15 November 2007, and 15 February 2008 respectively. The court referred to the particular gravity of the charges against the defendants, the risk of their absconding, resuming criminal activity, threatening witnesses and other participants in the proceedings, destroying evidence and otherwise obstructing the administration of justice. The court found no reasons to alter the custodial measure in respect of the defendants and, in so far as the applicant’s health was concerned, mentioned that the forensic medical report contained in the case file indicated that the applicant was simulating the symptoms of neurological conditions and that nothing prevented him from participating in the proceedings.

On 13 September 2007, 10 January and 11 March 2008 respectively the Supreme Court upheld the above decisions on appeal.

The case file contains no further decisions concerning the custodial measure applied in respect of the applicant at the trial stage of the proceedings.

5.  Alleged violation of the presumption of the applicant’s innocence

On 2 December 2006, in the course of a preliminary hearing in the applicant’s case, the investigator gave an interview to the local newspaper The Tyumen Courier (????????? ??????) in which she referred to the applicant and his co-defendants as a criminal gang and expressed her opinion on the issue of their guilt.

On 14 September 2007 another local newspaper Aloud about the most important things (????? ? ???????) published an article giving an update about the ongoing trial against the criminal gang of Yam. (one of the applicant’s co-defendants).

The case file contains no evidence that the applicant raised the issue of the alleged violation of the presumption of his innocence before the competent domestic authorities.

6.  The applicant’s conviction

On 6 May 2008 the Tyumen Regional Court in a jury trial convicted the applicant of involvement in an organised armed gang, theft, robbery, illegal deprivation of liberty, stealing of firearms, hijacking, murder, kidnapping and extortion and sentenced him to twenty-five years’ imprisonment.

The presiding judge had previously sat on the bench examining the appeal against the decision of 6 September 2006 limiting the time in which the applicant was allowed to study the case file materials.

It appears that some members of the public wishing to attend the trial were not let in, as the presiding judge made an order in respect of those arriving late to court.

The defence asked to tape record the hearing, but their request was dismissed so that the jury would not feel intimidated.

On 12 May 2009 the Supreme Court of Russia modified the qualification of the crimes committed by the applicant and upheld the rest of the judgment on appeal.

B.  Relevant domestic law

The Code of Criminal Procedure of the Russian Federation (“CCrP”)

(a)  Arrest and preventive measures in criminal proceedings

The police may arrest a person suspected of having committed an offence punishable by imprisonment if the person is caught in the act of committing an offence, or immediately after having committed it. No judicial authorisation of the arrest is required (Article 91).

Within forty-eight hours from the time of the arrest, a suspect must be released if a preventive measure in the form of detention on remand has not been imposed on the person or a final decision has not been issued by a court. When detention on remand is deemed necessary, an application must be lodged to that effect with a district court by a prosecutor or by an investigator with the consent of a prosecutor (Article 94).

“Preventive measures” or “measures of restraint” (???? ??????????) include an undertaking not to leave a town or region, personal surety, bail and detention (Article 98). If necessary, the suspect or accused may be asked to give an undertaking to appear (????????????? ? ????) (Article 112).

When deciding on a preventive measure, the competent authority is required to consider whether there are “sufficient grounds to believe” that the accused would abscond during the investigation or trial, reoffend or obstruct the establishment of the truth (Article 97). It must also take into account the gravity of the charge, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (Article 99).

Detention may be ordered by a court if the charge carries a sentence of at least two years’ imprisonment, provided that a less restrictive preventive measure cannot be applied (Article 108 § 1).

(b)  Time-limits for detention “pending the investigation”

(i)  Initial detention and its extensions

After arrest the suspect is placed in custody “pending the investigation”. The maximum permitted period of detention “pending the investigation” must not exceed two months. It may subsequently be extended up to six months (Article 109 § 1).

Further extensions to up to twelve months are possible only in relation to persons accused of serious or particularly serious criminal offences, in view of the complexity of the case or if there are grounds justifying detention. An investigator’s request for extension must be approved by the Regional Prosecutor (Article 109 § 2).

An extension of detention beyond twelve months and up to eighteen months may be authorised only in exceptional circumstances in respect of persons accused of particularly serious offences, upon an investigator’s request approved by the Prosecutor General or his Deputy (Article 109 § 3).

Extension of detention beyond eighteen months is prohibited and the detainee must be immediately released, unless the prosecution’s request for an extension for the purpose of studying the case file has been granted by a court in accordance with Article 109 § 8 of the CCrP (Article 109 § 4).

(ii)  Supplementary extension for studying the case file

Upon completion of the investigation, the detainee must be given access to the case file no later than thirty days preceding the expiry of the maximum period of detention indicated in paragraphs 2 and 3 (Article 109 § 5).

If access was granted on a later date, the detainee must be released after the expiry of the maximum period of detention (Article 109 § 6).

If access was granted thirty days before the expiry of the maximum period of detention but the thirty-day period proved to be insufficient to read the entire case file, the investigator may request that the court extend the period of detention. The request must be submitted no later than seven days before the expiry of the detention period. If several defendants are involved in the proceedings and the thirty-day period is insufficient to allow at least one of them to read the entire case file, the investigator may request that the court extend the period of detention in respect of those defendants who have completed reading the case file, provided that the necessity of applying a custodial measure to them persists and that there are no grounds for choosing another preventive measure (Article 109 § 7).

Within five days of receipt of the request for an extension, the judge must decide whether to grant it or reject it and release the detainee. If the extension is granted, the period of detention is extended until such time as is sufficient for the detainee and counsel to finish reading the case file and for the prosecution to submit the case to the trial court (Article 109 § 8).

(c)  Time-limits for detention “before the court”/“during the trial”

From the date the prosecutor forwards the case to the trial court, the defendant’s detention is “before the court” (or “during the trial”). The period of detention “during the trial” may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3).

COMPLAINTS

1.  The applicant complains under Article 3 of the Convention:

(a)  that on 17 November 2004 he was abducted, allegedly by the police, and continuously ill-treated for seven days until 23 November 2004, which seriously affected his health;

(b)  that he was subjected to beatings by the police during his interrogation on 29 November 2004;

(c)  that he was subjected to ill-treatment by officers of the Organised Crime Department on 20 July 2005 on the way from the courthouse to remand prison IZ-72/1; and

(d)  that he was not provided with adequate medical assistance for his injuries.

2.  The applicant complains under Article 5:

(a)  of the unlawfulness of his detention on remand, claiming, in particular, that his detention pending the study of the case file was unlawful in that the court did not indicate a specific end date of this detention, and that at the trial stage of the proceedings the court issued collective detention orders in respect of the applicant and his co-defendants;

(b)  that his detention on remand was repeatedly extended essentially on the basis of the gravity of the charges against him, without due regard to his state of health and without examining whether there was any concrete evidence substantiating the existence of the presumed risks of his absconding or otherwise interfering with the administration of justice in the case.

3.  The applicant complains under Article 6 that:

(a)   at no stage of the proceedings was he afforded an opportunity to study the case file in full (including video and audio materials and material evidence);

(b)  the trial judge previously participated in taking the appeal decision of 14 November 2006 on the issue of limiting time available to him for studying the case file materials;

(c)  the trial judge had allowed herself expression of personal opinion on the case, as well as a number of inappropriate statements (the substance of the statements made by the judge not specified by the applicant);

(d)  the trial judge refused the request for audio recording of the trial;

(e)  about the way the domestic court admitted and assessed the evidence;

(f)  his legal-aid lawyers appointed to conduct his defence were ineffective;

(g)  the trial was not public, in that the trial judge did not let in all those wishing to attend;

(h)   the Supreme Court did not give thorough answers to the arguments raised by the applicant on appeal; and

(i)  the presumption of his innocence was breached by the publication in local newspapers of articles concerning his criminal case.

4.  The applicant complains under Article 1 of Protocol No. 1 that during the search conducted in his flat on 20 November 2004 the investigator seized as material evidence a camera which he and his wife received as a wedding gift. He further complains about the seizure on the same date of his hunting rifles and about the attachment of his garage and impounding of his car in June 2005.

QUESTIONS TO THE PARTIES

1.  Was the applicant subjected to torture and/or inhuman or degrading treatment by police officers between 17 and 23 November 2004, in breach of Article 3 of the Convention? Reference is made to the applicant’s account of events and to medical records confirming the existence of injuries on the applicant’s body.

2.  Having regard to the procedural protection from torture, inhuman or degrading treatment or punishment (see Labita v. Italy [GC], no. 26772/95, § 131; ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?

3.  In connection with the above questions, the Government are requested to submit copies of all decisions taken by the domestic authorities in relation to the applicant’s complaints of ill-treatment and the materials of the relevant inquiries.

4.  Was the applicant’s continued detention after 17 May 2006 compatible with the requirements of Article 5 § 1 (c) of the Convention? In particular:

(a) Were the provisions of the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001) sufficiently accessible, precise and foreseeable in their application, in so far as they provided for the extension of a defendant’s detention beyond the maximum of eighteen months on the basis of the need for him and/or his counsel to study the case file and did not set any time-limit on such detention (see Tsarkov v. Russia, no. 16854/03, §§ 48-55, 16 July 2009, and Tsarenko v. Russia, no. 5235/09, §§ 56-61, 3 March 2011)?

(b)  Did the extension order of 8 November 2006, by which the applicant’s detention was extended for thirty days counting from the date on which the prosecutor approved the indictment and submitted the case to the trial court, allow the applicant to calculate the start date and the end date of his detention in the relevant period? Was the applicant informed of the exact date on which the prosecutor approved the indictment and submitted the case file to the trial court?

(c)  Was the extension of the applicant’s detention pending trial on 14 December 2006 for six months until 15 June 2007 taken in compliance with a “procedure prescribed by law”, regard being had to the fact that by 14 December 2006 the applicant had already spent one month in detention pending trial pursuant to the court order of 8 November 2006?

(d)  Did the trial court provide any grounds for extending the applicant’s detention pending trial on 14 December 2006 (see Gubkin v. Russia, no. 36941/02, §§ 111-115, 23 April 2009, and Bakhmutskiy v. Russia, no. 36932/02, §§ 111-115, 25 June 2009)?

(e)  The Government are further requested to provide all relevant documents regarding the applicant’s detention from 15 February to 6 May 2008.

5.  Was the length of the applicant’s detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention? In particular, did the authorities rely on “relevant and sufficient reasons” for the continued detention of the applicant and were the proceedings conducted with “special diligence”? Were the applicant’s state of health and other factors pertinent to the applicant’s individual situation duly taken into account by the domestic courts?

6.  Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention? In particular, was the principle of equality of arms respected? Was the applicant afforded an opportunity to study the case file in full, including audio and video tapes and material evidence, before the case was submitted to the trial court? If not, was he afforded such opportunity later on, during the trial?