CASE OF ALEKSANDR KONOVALOV v. RUSSIA
(Application no. 39708/07)
28 November 2017
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Aleksandr Konovalov v. Russia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Helena Jäderblom, President,
Pere Pastor Vilanova,
Georgios A. Serghides,
Jolien Schukking, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 7 November 2017,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 39708/07) 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 Aleksandr Viktorovich Konovalov (“the applicant”), on 16 July 2007.
2. The applicant, who had been granted legal aid, was represented by Mr E. Markov, a lawyer admitted to practise in the Odessa region, Ukraine. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
3. The applicant alleged, in particular, that he had been subjected to ill-treatment in police custody, that his detention had been unlawful and that the use of confession statements made as a result of his ill-treatment in securing his conviction had rendered his trial unfair.
4. On 31 January 2014 the complaints concerning his alleged ill-treatment, the lawfulness of his detention and the fairness of his trial were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1971 and is serving a prison sentence in Valuyki, the Belgorod region.
A. The applicant’s alleged ill-treatment in police custody
6. On 14 June 2006 Ms I., a university student, disappeared.
7. On 15 June 2006 her mother reported her missing to the Severnyy police department of the Kominternovskiy district of Voronezh, which initiated a search for her. According to the applicant, on the morning of 17 June 2006 the police searched his flat without drawing up a record. They then searched his car. According to police records, the applicant’s car was searched between 10.10 and 11.20 a.m. that day in connection with I.’s disappearance by an investigator of the Severnyy police department.
8. After the search the applicant was taken to the Severnyy police department, where he was interviewed about I.’s whereabouts. He stated that he knew I. and had last seen her on 14 June 2006 but was unaware of her whereabouts. A record of his “explanation” (объяснение) was drawn up by operative officer M.
9. According to the applicant, police officers beat him up in order to extract information from him about I.’s whereabouts.
10. According to the Government, after being interviewed the applicant was released and later taken again to the police station. A record drawn up by operative officer M. states that at 9 p.m. on 17 June 2006 the applicant was taken in for committing petty hooliganism in the vicinity of the police station by swearing at passers-by. It is stated in the record that he had no injuries. According to a decision delivered by the acting head of the Severnyy police department in administrative proceedings conducted the same day, the applicant was found guilty of petty hooliganism and fined. At 11.50 p.m. that evening his administrative detention was ordered by the police.
11. The applicant was detained at the Severnyy police department until 10.40 a.m. on 19 June 2006. He was then taken to the Sovetskiy police department, where further operative measures in connection with I.’s disappearance were carried out.
12. According to the applicant, he was subjected to beatings and given electric shocks by police officers of the Sovetskiy police department in order to make him give information about I.’s whereabouts. He allegedly had a cap put on his head so that he could not see anything and was taken by car out of town, where he was beaten up and given electric shocks with wires attached to his little fingers. His mouth was taped so that he would not scream. When he was ready to give a statement in order to stop the torture, he was taken to a river bank and shown a dead body. He was thrown on the ground and kicked. When taken back to the Sovetskiy police department, he made a confession statement to an investigator in the presence of the same police officers who had ill-treated him.
13. According to the applicant’s “explanation” (объяснение) given to investigator S. of the Sovetskiy district prosecutor’s office of Voronezh on 19 June 2006, he confessed to the murder of I. by strangulation. He also stated that he had been beaten up and had received all his injuries at the Severnyy police department, but had not been subjected to any ill-treatment at the Sovetskiy police department, and had no complaints against its officers. The applicant was then taken to the place where he had allegedly hidden I.’s body. According to a record drawn up by investigator S., an examination of the place was carried out between 11 p.m. and midnight, and a woman’s body was recovered.
14. At 12.50 a.m. on 20 June 2006 investigator S. arrested the applicant as a suspect and questioned him between 1 and 1.50 a.m., and then between 11 and 11.15 a.m., in the presence of P., a State-appointed lawyer invited by investigator S. The applicant reiterated his earlier self-incriminating statements, as well as the statements concerning his ill-treatment at the Severnyy police department. He also stated that he had burnt I.’s body after he had strangled her. Between 11.30 a.m. and 1.32 p.m. his statements were verified at the scene of the crime by investigator S. in the presence of lawyer P. and operative officers of the Sovetskiy police department. The applicant also showed where he had hidden the victim’s mobile telephone.
15. On 20 June 2006 investigator S. ordered a forensic medical examination of the applicant. That day an operative officer of the Sovetskiy police department took him to the Voronezh Regional Forensic Medical Bureau. An expert recorded multiple bruises and abrasions on his face, head, trunk and upper and lower extremities. The applicant stated that the injuries had been inflicted after his arrest on 17 June 2006 by police officers who had punched him in the head and different parts of his body and beaten him with a rubber baton on the back and legs. The expert concluded that the injuries could have been inflicted by a blunt object between one and three days before the examination.
16. On 21 June 2006 the applicant was questioned as an accused by investigator S. in the presence of lawyer P. He confirmed his earlier self-incriminating statements and statements concerning his alleged ill-treatment at the Severnyy police department.
17. On the same day the Sovetskiy District Court of Voronezh (“the District Court”) ordered the applicant’s detention at a hearing in the presence of lawyer P. He was placed in detention facility SIZO-36/1. In the criminal proceedings that followed the applicant was represented by a lawyer hired for him by his family.
18. On 28 June 2006 investigator S. communicated the applicant’s allegations concerning the unlawful actions of the police officers from the Severnyy police department to the Kominternovskiy district prosecutor’s office of Voronezh. An investigator of that prosecutor’s office carried out a pre-investigation inquiry and refused to institute criminal proceedings into the applicant’s complaint. His two decisions of 1 July and 2 August 2006 were annulled by his superiors on the grounds that they had been based on an incomplete inquiry.
19. In the most recent refusal of 29 September 2006 to institute criminal proceedings for lack of evidence that the officers of the Severnyy police department had committed a crime, the investigator established the facts as follows, relying on the police officers’ statements. On 17 June 2006 certain operative officers of the criminal search unit of the Severnyy police department carried out operational-search activities in connection with I.’s disappearance. In order to check the applicant’s involvement in I.’s disappearance they took him to the Severnyy police department with his consent and interviewed him. After receiving his “explanation” M. released him. That evening M. took him to the police station again for swearing on the street near the police station. From 9.50 p.m. on 17 June until 10.40 a.m. on 19 June 2006 the applicant was detained in a cell for administrative offenders. He was then taken to the Sovetskiy police department. No physical force was used against him, and no complaints were made by him.
20. The investigator noted that on the two occasions the applicant had been taken to the Severnyy police department - first, for giving statements in relation to I.’s disappearance, and second, for having committed the administrative offence - he had had no injuries. In the same decision the investigator suggested that the applicant’s injuries could have been inflicted by a third party outside the Severnyy police department, between 17 and 19 June 2006, between one and three days before his medical examination by the forensic expert on 20 June 2006.
21. On an unspecified date the applicant also complained about the unlawful actions of officers of the Sovetskiy police department, explaining that he had blamed the officers of the Severnyy police department for all his injuries for fear of reprisals from the officers of the Sovetskiy department, in whose hands he had been at the time. An investigator of the Sovetskiy district prosecutor’s office of Voronezh carried out a pre-investigation inquiry and refused to institute criminal proceedings into the applicant’s complaint. His decision of 10 August 2006 was annulled by his superior as unlawful and unfounded.
22. In the most recent refusal of 21 September 2006 to institute criminal proceedings for lack of evidence that a crime had been committed, the investigator found, relying on statements by the operative officers of the Sovetskiy police department, that the applicant had been taken to the station with his consent and had confessed to the murder of I. He had also shown where he had hidden her body voluntarily, without any coercion.
23. An appeal by the applicant of 17 May 2007 against the investigators’ decisions was not examined by the District Court because by that time he had been convicted by a final judgment, as was stated by the court in a letter of 4 June 2007.
B. The applicant’s trial
24. At his trial the applicant pleaded innocent and submitted that he had given the self-incriminating statements at the preliminary investigation stage as a result of physical coercion by officers of the Severnyy and Sovetskiy police departments. His counsel requested that the records of the investigative measures carried out on 19, 20 and 21 June 2006 be declared inadmissible, arguing, inter alia, that they had been obtained in the presence of lawyer P., who had been invited by investigator S. in breach of the relevant procedure and without the applicant’s consent.
25. The District Court dismissed the request, noting that all investigative measures since the applicant’s arrest as a suspect on 20 June 2006 had been carried out in the presence of lawyer P. Moreover, there was no evidence that the applicant had rejected her services. Following his confession, recorded in his “explanation” to the investigator of 19 June 2006, the applicant had shown where he had hidden I.’s body, which had not required the presence of a lawyer. The court based its findings on the self-incriminating statements given by the applicant in the preliminary investigation, noting that his allegations of ill-treatment in police custody had been examined and dismissed by the Sovetskiy and Kominternovskiy district prosecutor’s offices in decisions of 21 and 29 September 2006 respectively.
26. On 25 October 2006 the District Court convicted the applicant of aggravated murder and sentenced him to twelve years’ imprisonment.
27. On 30 November 2006 the Council of the Voronezh Regional Bar Association examined a disciplinary case against lawyer P. which originated in a complaint by the applicant. It found that P. had defended the applicant at investigator S.’s direct invitation, surpassing the Council of the Voronezh Regional Bar Association in breach of the relevant procedure. P. was subjected to disciplinary liability in the form of a warning. On 5 December 2006 the Council informed the applicant of its decision, explaining that there was nothing to suggest that P. had failed to properly defend the applicant. However, it had established a breach of the procedure for providing legal assistance at the invitation of the investigating authorities.
28. On 6 February 2007 the Voronezh Regional Court upheld the judgment on an appeal by the applicant, fully endorsing the trial court’s findings.
29. Applications by the applicant for supervisory review of his case were dismissed by the Regional Court.
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
30. The applicant complained that he had been subjected to treatment proscribed by Article 3 of the Convention by officers of the Severnyy and Sovetskiy police departments, and that no effective investigation had been carried out into his complaints. 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.”
31. The Government contested that argument, maintaining the conclusions of the domestic pre-investigation inquiries, which they said had been effective.
32. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
33. The relevant general principles were reiterated by the Court’s Grand Chamber in the case of Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-88, ECHR 2015). In particular, where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of individuals within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. The burden of proof is then on the Government to provide a satisfactory and convincing explanation by producing evidence establishing facts which cast doubt on the version of events given by the victim. In the absence of such an explanation, the Court can draw inferences which may be unfavourable for the Government. That is justified by the fact that those in custody are in a vulnerable position and the authorities are under a duty to protect them (ibid., § 83).
1. Credibility of the applicant’s allegations of ill-treatment in police custody and the presumption of fact
34. The Court observes that it is not disputed by the parties that the applicant had been continuously under the control of the police, at least between his actual arrest at 9 p.m. on 17 June 2006 in the administrative proceedings, when no injuries were recorded on him according to the investigating authority (see paragraph 20 above), and his forensic medical examination on 20 June 2006, when he was found to have sustained injuries. According to the forensic medical expert, the injuries were the result of impact from a blunt object. The Court considers that they could arguably have resulted from blows allegedly delivered to the applicant’s body by police officers (see paragraph 15 above).
35. The above factors are sufficient to give rise to a presumption in favour of the applicant’s account of events and to satisfy the Court that the applicant’s allegations of ill-treatment in police custody were credible. The State was therefore obliged to carry out an effective official investigation (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV).
2. Whether an effective investigation was carried out into the applicant’s allegations of police ill-treatment
36. The Court further observes that the applicant’s allegations of his injuries being the result of police ill-treatment were dismissed by the domestic investigating authorities. The investigators based their findings on the results of several rounds of pre-investigation inquiry, which is the initial stage in dealing with a criminal complaint under Russian law and should normally be followed by the opening of a criminal case and the carrying out of an investigation if the information gathered has disclosed elements of a criminal offence (see Lyapin v. Russia, no. 46956/09, § 129, 24 July 2014).
37. The Court reiterates its finding that the mere carrying out of a pre-investigation inquiry under Article 144 of the Code of Criminal Procedure of the Russian Federation is insufficient if the authorities are to comply with the standards established under Article 3 of the Convention for an effective investigation into credible allegations of ill-treatment in police custody. It is incumbent on the authorities to institute criminal proceedings and conduct a proper criminal investigation in which a full range of investigative measures are carried out (ibid., §§ 129 and 132-36).
38. The Court has no reason to hold otherwise in the present case, which involves credible allegations of ill-treatment of which the authorities were promptly made aware. It finds that the investigating authorities failed to carry out an effective investigation into the applicants’ allegations of police ill-treatment, as required by Article 3 of the Convention.
3. Whether the Government provided explanations capable of casting doubt on the applicant’s versions of events
39. The Government supported the conclusions of the investigating authorities to the effect that the applicant’s injuries could not be attributed to the conduct of the police officers.
40. The Court further notes that the investigating authorities based those conclusions on the statements of police officers. The explanations that the injuries could have been inflicted by a third party outside the police premises were not based on any evidence and were contradicted by the investigator’s conclusion that the applicant had no injuries when he was taken into police custody (see paragraphs 20 above).
41. Given that those explanations were provided as a result of an inquiry falling short of the requirements of Article 3 of the Convention (see paragraph 38 above), the Court finds that the Government have failed to discharge their burden of proof and produce evidence capable of casting doubt on a part of the applicant’s account of events. To the extent that the applicant’s account is supported by medical evidence, the Court finds it established.
4. Legal classification of the treatment
42. The Court finds that the police subjected the applicant to inhuman and degrading treatment.
43. There has accordingly been a violation of Article 3 of the Convention under its substantive and procedural limbs.
II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
44. The applicant complained that he had been detained unlawfully from the time of his actual arrest on the morning of 17 June 2006 until his formal arrest as a suspect at 12.50 a.m. on 20 June 2006, in breach of the guarantees of Article 5 of the Convention, which reads as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”
45. The Government contested that argument, relying on the facts as established by the domestic investigating authorities.
46. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
47. The Court observes that the Government did not dispute that following his detention at the Severnyy police department, which lasted until 10.40 a.m. on 19 June 2010, the applicant had been taken to the Sovetskiy police department, where he had confessed to the murder of I. and then disclosed the location of the body. Nor did they dispute that he had been arrested as a suspect at 12.50 a.m. on 20 June 2006, displaying injuries allegedly sustained in police custody.
48. In such circumstances the Court is not convinced by the Government’s argument that during that fourteen-hour period the applicant had not been detained, having allegedly agreed to go to the Sovetskiy police department voluntarily. It is of the view that the applicant’s unrecorded detention during that period was unlawful (see Fartushin v. Russia, no. 38887/09, § 54, 8 October 2015).
49. The foregoing considerations are sufficient for the Court to conclude that there has been a violation of Article 5 of the Convention in the present case. This finding makes it unnecessary to examine the remainder of the applicant’s complaints under the same provision of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
50. Lastly, the applicant complained that his conviction had been based on his confession statements received as a result of his ill-treatment and in the absence of a lawyer of his choice. He relied on Article 6 of the Convention, the relevant parts of which read as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
3. Everyone charged with a criminal offence has the following minimum rights:
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require ...”
51. The Government contested that argument, referring to the findings of the investigating and judicial authorities. They pointed out that the disputed evidence was not the sole evidence on which the applicant’s conviction had been based, and that he had not rejected the services of the State-appointed counsel in whose presence he had given the impugned evidence, the admissibility of which had been thoroughly examined in the adversarial proceedings.
52. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
53. The Court reiterates that the admission of confession statements obtained in violation of Article 3 renders the criminal proceedings as a whole automatically unfair, irrespective of the probative value of those statements and irrespective of whether their use was decisive in securing the defendant’s conviction (see Gäfgen v. Germany [GC], no. 22978/05, §§ 166 and 173, ECHR 2010, and, among recent authorities, Turbylev v. Russia, no. 4722/09, § 90, 6 October 2015).
54. The Court has found that the applicant was subjected to inhuman and degrading treatment in police custody (see paragraph 42 above). It observes that on 19 June 2006 the applicant made a confession statement, which he reiterated on 20 and 21 June 2006. Those statements formed part of the evidence adduced against him. The District Court did not find them inadmissible and referred to them when finding him guilty and convicting him. The court failed to carry out its own independent assessment of the relevant medical and other evidence with a view to ascertaining whether there were reasons to exclude from evidence those statements, allegedly “tainted” by a violation of Article 3 of the Convention, so as to ensure the fairness of the trial. Instead, it relied on the investigating authorities’ decisions, which the Court has found to have been based on an inquiry which did not meet Article 3 requirements. This lack of a careful assessment of the quality of the impugned evidence and the circumstances in which it was obtained was not remedied by the Regional Court.
55. In such circumstances, the Court is not convinced by the Government’s argument that the applicant’s confessions should be regarded as having been given voluntarily. It concludes that, regardless of the impact the applicant’s statements obtained under duress had on the outcome of the criminal proceedings against him, their use in evidence rendered the applicant’s trial unfair. This finding makes it unnecessary to examine separately the applicant’s complaint that the legal assistance provided to him by P. had made his trial unfair.
56. The foregoing considerations are sufficient for the Court to conclude that there has been a violation of Article 6 § 1 of the Convention in the present case.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
57. 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.”
58. The applicant claimed 25,000 euros (EUR) in respect of non-pecuniary damage.
59. The Government contested the claim.
60. The Court awards the applicant EUR 20,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.
B. Costs and expenses
61. The applicant also claimed EUR 500 for the costs and expenses incurred before the domestic authorities and EUR 4,100 for those incurred before the Court, to be paid directly to his representative’s bank account.
62. The Government contested the claim.
63. 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 rejects the claim for costs and expenses in the domestic proceedings and considers the sum claimed for the proceedings before the Court reasonable. Bearing in mind EUR 850 received from the Council of Europe in respect of legal aid, it awards the applicant EUR 3,250, to be paid into the bank account of the applicant’s representative, Mr E. Markov, as indicated by the applicant.
C. Default interest
64. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that there has been a violation of Article 3 of the Convention under its substantive limb, in that the applicant has been subjected to inhuman and degrading treatment, and under its procedural limb;
3. Holds that there has been a violation of Article 5 of the Convention;
4. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the use in evidence of the applicant’s confession statements obtained as a result of his inhuman and degrading treatment;
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 3,250 (three thousand two hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be transferred directly to the account of the applicant’s representative Mr E. Markov;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
6. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 28 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Helena