European Court of Human Rights

 

 

THIRD SECTION

CASE OF PETUKHOV v. RUSSIA

(Application no. 17853/09)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

11 May 2021

 

This judgment is final but it may be subject to editorial revision.

In the case of Petukhov v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

          Darian Pavli, President,
          Dmitry Dedov,
          Peeter Roosma, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 17853/09) 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 Aleksey Viktorovich Petukhov (“the applicant”), on 29 November 2008;

the decision to give notice to the Russian Government (“the Government”) of the complaints concerning the applicant’s alleged ill‑treatment by police, the lack of an effective investigation into his complaint and the use of his confession statements at his trial, and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated in private on 30 March 2021,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.  The application concerns the applicant’s alleged ill-treatment by police officers, the lack of an effective investigation into his complaint and the use of his confession statements at his trial.

THE FACTS

2.  The applicant was born in 1987 and lives in Tula. He was represented by Mr A.A. Timushev, a lawyer practising in Kostroma.

3.  The Government were represented by Mr G. Matyushkin, Representative of the Russian Government to the European Court of Human Rights, and subsequently by Mr M. Galperin, his successor in that office.

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

I.         The applicant’s ARREST AND alleged ill-treatment

5.  At around 7.45 p.m. on 15 January 2007 a police officer from the Sovetskiy district police department of Tula was robbed on the street by a young man who had followed her and then snatched a plastic bag full of groceries from her hands and punched her in the head while trying unsuccessfully to snatch her handbag. He ran away. She pursued him, calling the police and asking two passers-by for help. They apprehended the applicant. At around 8.10 p.m. the police arrived and the applicant was taken to the Sovetskiy district police station.

6.  According to the police record, drawn up at 8.20 p.m. on 15 January 2007, the applicant was escorted to the police station for examination on suspicion of having committed the robbery; he did not display any injuries.

7.  The applicant submitted the following account of events at the police station. One police officer had started threatening him and saying that he would not survive until the morning. He had grabbed the applicant’s clothes and pulled him so that the applicant hit the bars of the cell. Three police officers had then taken the applicant to an office, made him sit down on the floor and bound his hands behind his back. One of the officers had told the applicant that it would be better for him to confess to the robbery, otherwise they would force him to confess. When the applicant refused to confess, one of the police officers had put a plastic bag over his head so that he started to suffocate. As the applicant still refused to confess, the police officer had continued to suffocate him intermittently, and had done so approximately five times. While this was happening, the police officers had also punched and kicked the applicant in his head and on his chest, back and lumbar region and extremities. They had also raised his hands behind his back so that he experienced severe pain. The applicant had agreed to confess to the crime.

8.  Between 11.45 p.m. and 12.50 a.m. of the following day the applicant gave confession statements during his examination - as a suspect in the robbery - to an investigator from the Sovetskiy district police department and in the presence of a State-appointed lawyer. According to the applicant, he did not inform the lawyer about his ill-treatment, because the lawyer had been invited by the investigator and the applicant did not trust the lawyer. He was afraid of complaining that he had been ill-treated as he was still under police control and in the same building where he had been physically assaulted.

9.  After the questioning the applicant was released from the police station on an undertaking not to leave the town.

II.      The applicant’s injuries

10.  On 16 January 2007 the applicant asked for medical assistance at the trauma unit of Tula town hospital. According to the hospital records of that date, he was diagnosed with (i) a closed craniocerebral injury, concussion and contusion of the soft tissue on the back of the head and (ii) a closed fracture of the chest.

11.  On 18 January 2007 the state of the applicant’s health deteriorated and he was taken to hospital by ambulance. According to his medical records, he was in the neurology unit from 18 January to 5 February 2007 and was diagnosed with a closed craniocerebral injury and concussion, as well as contusions to the soft tissue of the head, the nose, the breastbone, the lumbar region on the right side, and the left hand. He was also diagnosed with mild asthenic syndrome following a psycho-traumatic situation. He also had a haemorrhage on the upper lip. After his discharge from hospital he received out-patient treatment.

12.  At 2.25 p.m. on 18 January 2007 a forensic medical examination of the applicant (ordered by an investigator from the Sovetskiy district prosecutor’s office and carried out by experts from the Tula regional bureau of forensic medical examinations) was begun. It was completed on 16 March 2007. The experts observed the following injuries on the applicant’s body: (i) a bruise on the chest; (ii) a bruise in the area of the left side of the collarbone; (iii) a bruise on the right knee joint; and (iv) an abrasion on the right shin. Having regard to the hospital records, the experts concluded that the head injury in the form of concussion and the bruising to the back of the head and to the areas of the chest, collarbone and the right knee and shin had been caused by hard, blunt objects with a small surface area either rubbing or hitting against the applicant at least five times. They had been caused three to four days before the examination and had caused a short-term health disorder. The experts also stated that there was no objective evidence to confirm the contusions to the nose, lumbar region and left wrist, or the fracture of the chest.

III.   Refusals to open a criminal case

13.  On 16 January 2007 the applicant lodged a complaint against the police officers with the prosecutor’s office, alleging ill-treatment at the police station on 15 January 2007 and describing in detail the three police officers, the actions committed by each of them, and the office in which the ill-treatment had allegedly taken place.

14.  Investigators at the Sovetskiy district prosecutor’s office and (from 13 November 2007) the Tula regional prosecutor’s office issued eleven refusals to institute criminal proceedings against the police officers, owing to the absence of a crime or constituent elements of a crime under Articles 285 and 286 of the Criminal Code on abuse of powers. Those refusals were systematically overruled by the higher investigating authority as being unsubstantiated or unlawful, and the investigators were ordered to carry out additional inquiries, rectify certain deficiencies in the inquiry process and/or take additional measures. The latest decision to refuse criminal proceedings was issued on 28 August 2008.

15.  The police officers denied any ill-treatment of the applicant. The investigator and the lawyer, present at the applicant’s questioning on 16 January 2007, stated that the applicant had not complained of ill‑treatment and had not displayed any injuries.

16.  In the last refusal to open a criminal case against the police officers (dated 28 August 2008), an investigator also noted the conclusions of the trial court, which had been critical of the statements given by witnesses concerning the applicant’s alleged ill-treatment (see paragraph 21 below), and had concluded that the ill-treatment by the police officers had not been confirmed.

17.  The applicant appealed under Article 125 of the Code of Criminal Procedure against several refusals to open a criminal case against the police officers. On 3 July 2007 and 20 June 2008 the Sovetskiy District Court of Tula allowed the applicant’s appeals and found the refusals of 10 April 2007 and 4 May 2008 unlawful. On 20 June 2008 the court also issued a special ruling (частное постановление) pointing out to the head of the investigating authority that the prosecutor’s instructions for rectification of flaws in the inquiry had not been promptly fulfilled. As a result, an investigator was found liable in disciplinary proceedings.

IV.   Criminal proceedings against the applicant

18.  On 17 March 2008 the Sovetskiy District Court of Tula convicted the applicant of robbery and sentenced him to three years’ conditional imprisonment.

19.  At trial, the applicant pleaded not guilty and complained that the police officers had physically assaulted him and had forced him to confess to the crime. The court did not exclude the record of the applicant’s examination with his confession statements as inadmissible evidence, despite the applicant maintaining that he had signed it following ill‑treatment.

20.  The trial court dismissed the applicant’s allegations of ill-treatment by the police officers as unconfirmed. The court relied mainly on the results of the pre-investigation inquiry into the applicant’s allegations of ill‑treatment, which had resulted in the refusal of 13 December 2007 to open a criminal case against police officers (which was subsequently overruled).

21.  The court was critical of the statements of the following witnesses, who alleged that the applicant had sustained his injuries at the police station.

(i)  The applicant’s mother, the applicant’s girlfriend and her mother, as well as the applicant’s uncle, provided a description of the applicant’s injuries, which they had seen on 16 January 2007 at the police station or after his release. In particular, the applicant had visible injuries on his face, collarbone and back, a swelling on the back of his head, injuries on his neck, hands and legs, and his left thumb was numb.

(ii)  The applicant’s roommate in the neurology unit of the hospital where the applicant was treated. The applicant told him that he had been arrested and physically assaulted by police officers, who had forced him to confess to the crime.

(iii)  A doctor at the hospital trauma unit who diagnosed the applicant with a head injury and bruising to the head, chest and wrist. The applicant told him that he had sustained his injuries at the police station.

22.  The trial court found that the above-mentioned witnesses had not been eyewitnesses to the alleged ill-treatment. It also found that those statements had been given to help the applicant avoid criminal liability for the crime which had been committed.

23.  On 4 June 2008 the Tula Regional Court upheld that judgment on appeal. The applicant maintained his arguments regarding ill-treatment by the police and the forced confession, and pleaded not guilty. The appeal court dismissed the applicant’s arguments, having concluded that the police officers had not caused him any injury.

THE LAW

I.         ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

24.  The applicant complained that he had been subjected to ill-treatment by police officers, and that no effective investigation had been carried out into his complaint. 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.”

25.  The Government denied a violation of Article 3, relying on the decisions of the domestic authorities. They stated that there had been no need to open a criminal case and carry out a preliminary investigation because the pre-investigation inquiry had been sufficient for establishing the circumstances of the case and carrying out a thorough investigation. They also stated that the applicant, who had not been detained, had failed to support his allegations of ill-treatment by solid evidence.

A.    Admissibility

26.  The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.     Merits

27.  The Court reiterates that in assessing the evidence on which to base a decision as to whether there has been a violation of Article 3, it adopts the standard of proof “beyond reasonable doubt”. However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006‑IX). Where 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 (see Bouyid v. Belgium [GC], no. 23380/09, §§ 81-88, ECHR 2015).

28.  The Court observes that at 8.20 p.m. on 15 January 2007 the applicant was taken to the police station on suspicion of having committed the robbery; that between 11.45 p.m. and 12.50 a.m. on 16 January 2007 he gave confession statements during his examination as a suspect in the robbery case; and that he was subsequently released. At the police station, between 8.20 p.m. and 11.45 p.m., the applicant was allegedly subjected to ill-treatment for the purpose of obtaining his confession.

29.  On 16 January 2007 the applicant, who had not displayed any injuries after being escorted to the police station (see paragraph 6 above), was examined at a hospital and diagnosed with the injuries to the head and chest (see paragraph 10 above). On 18 January 2007 the applicant was examined by forensic medical experts, who recorded bruises and an abrasion. The experts concluded that the applicant’s concussion and bruising to the back of the head and bruising to the chest and other parts of the body had been caused by hard, blunt objects with a small surface area either rubbing against or hitting the applicant at least five times, three to four days before the examination (see paragraph 12 above).

30.  On 18 January 2007 his condition deteriorated and he was hospitalised in the neurology unit until 5 February 2007, diagnosed with, inter alia, a closed craniocerebral injury and concussion, as well as contusions (see paragraph 11 above).

31.  The witness statements (see paragraph 21 above) are consistent with the medical evidence of injuries and with the applicant’s allegations of his ill-treatment (see paragraph 7 above).

32.  The Court considers that the injuries, diagnosed at the hospital and recorded by the forensic medical experts, could arguably have resulted from the applicant’s alleged ill-treatment by police officers on 15 January 2007.

33.  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 his allegations of ill-treatment in police custody were credible.

34.  The Court further observes that the applicant’s allegations of police ill-treatment were dismissed by the investigating authority, which offered no explanation for the origin of the applicant’s injuries.

35.  The investigating authority based its findings on the results of the pre-investigation inquiry, which is the initial stage in dealing with a criminal complaint under Russian law and should normally be followed by the opening of a criminal case and the carrying-out of an investigation if the information gathered has disclosed elements of a criminal offence (see Lyapin v. Russia, no. 46956/09, § 129, 24 July 2014). 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 to conduct a proper criminal investigation in which the whole range of investigative measures may be carried out, including the questioning of witnesses, confrontations and identification parades (ibid., §§ 132-37).

36.  The Court has no reason to hold otherwise in the present case. It finds that the investigating authority failed to carry out an effective investigation into the applicant’s allegations of police ill-treatment, as required by Article 3 of the Convention. There has therefore been a violation of Article 3 under its procedural limb.

37.  Given that the Government’s denial of the State’s responsibility for the applicant’s alleged ill-treatment was based on the results of superficial pre-investigation inquiries, which fall short of the requirements of Article 3 of the Convention, the Court holds that the Government have failed to discharge their burden of proof and to produce evidence capable of casting doubt on the applicant’s account of events.

38.  The Court finds that the acts of violence to which the applicant was subjected in police custody amounted to treatment proscribed by Article 3. There has therefore been a violation of Article 3 of the Convention, also under its substantive limb.

II.      ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

39.  The applicant complained that his conviction had been based on confession statements obtained from him as a result of his ill-treatment by police. He relied on Article 6 of the Convention, the relevant part of which reads as follows:

“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

40.  The Government contested that argument, referring to the findings of the domestic authorities. They pointed out that the disputed evidence was not the sole evidence on which the applicant’s conviction had been based, and that his self-incriminating statements had been received in accordance with the law and their admissibility had been thoroughly examined in adversarial proceedings.

A.    Admissibility

41.  The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.    Merits

42.  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 other authorities, Turbylev v. Russia, no. 4722/09, § 90, 6 October 2015).

43.  The Court has found that the applicant was subjected to ill-treatment in police custody on 15 January 2007. It observes that the applicant’s confession statements recorded during his questioning immediately after the ill-treatment formed part of the evidence adduced against him. The trial court did not find them inadmissible and referred to them when finding him guilty and convicting him. The court had to carry out its own independent assessment of the relevant medical, witness and other evidence with a view to ascertaining whether there were reasons to exclude 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 one of the investigating authority’s refusals to institute criminal proceedings, which the Court has found to have been based on an inquiry which did not meet the requirements of Article 3. This lack of a careful assessment of the quality of the impugned evidence and the circumstances in which it was obtained was not remedied on appeal.

44.  In such circumstances, the Court 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 his trial unfair.

45.  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.

III.   ALLEGED VIOLATION OF article 13 of THE CONVENTION

46.  Lastly, the applicant complained that the authorities had not carried out an effective investigation into his complaint, thus failing to provide him with an effective remedy as required by Article 13, which 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.”

47.  The Government argued that the applicant had availed himself of effective domestic remedies in respect of his complaint under Article 3.

48.  The Court notes that this complaint is linked to the issue raised under the procedural aspect of Article 3 of the Convention and must therefore likewise be declared admissible.

49.  In view of its finding of a violation of Article 3 under its procedural head, the Court does not find it necessary to examine separately, under Article 13 of the Convention, the applicant’s complaint concerning the lack of an effective investigation into his ill‑treatment.

IV.   APPLICATION OF ARTICLE 41 OF THE CONVENTION

50.  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.”

51.  The applicant claimed 15,000 euros (EUR) in respect of non‑pecuniary damage and 30,000 Russian roubles in respect of legal services in the proceedings before the Court.

52.  The Government contested the claim.

53.  The Court awards the applicant the amount claimed in respect of non‑pecuniary damage, plus any tax that may be chargeable. It also awards him EUR 420, plus any tax that may be chargeable to the applicant, in respect of costs and expenses.

54.  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 and procedural limbs;

3.      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 ill-treatment;

4.      Holds that there is no need to examine separately the complaint under Article 13 of the Convention;

5.      Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 420 (four hundred and twenty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(a)  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.

Done in English, and notified in writing on 11 May 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

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Olga Chernishova                                                                    Darian Pavli
Deputy Registrar                                                                       President