ALEKSANDROV v. RUSSIA and 4 other applications

 
Communicated on 17 January 2019
 
THIRD SECTION
Application no. 21396/11
Aleksey Alekseyevich ALEKSANDROV against Russia
and 4 others – see appended list
STATEMENT OF FACTS
The applicants complained under Articles 3 and 13 of the Convention that they had been subjected to ill-treatment by State officials and that the State failed to conduct an effective domestic investigation into those incidents. All of the applicants submitted that their attempts to initiate criminal investigation in connection with the incidents proved futile.
The relevant details regarding the applicants’ allegations and their version of factual circumstances are reflected in the attached appendices. The information regarding the alleged breach of the substantive aspect of Article 3 in contained in Appendix no. 1. The reaction of the domestic authorities to the applicants’ complaints is reflected in Appendix no. 2.
Some applicants also raised other complaints, subject of well-established case-law of the Court (see Appendix no. 3).
The applicant in case no. 21396/11 also complained under Articles 3 and 13 of the Convention about the beating by a co-detainee and the lack of investigation in this connection.
The applicant in case 64761/13 also complained under Articles 8 and 13 about his transfer to a remote prison facility far away from his family and the lack of domestic remedy in this connection.
The applicants in cases nos. 71716/14 and 372/15 complained about the use of handcuffing in respect of them, which was allegedly unjustified and in breach of Articles 3 and 13 of the Convention.
 
The table of cases:
 
No.
Application number
Introduction date
Name of the applicant(s); date of birth
place of residence
Represented by
1.
21396/11
29/03/2011
Aleksey Alekseyevich ALEKSANDROV
24/01/1958
Kyshtym
Vladislav Valeryevich PROZOROV
2.
45750/13
06/06/2013
Viktor Nikolayevich BABAK
10/08/1967
Kharp
 
3.
64761/13
18/09/2013
Vitaliy Viktorovich STARIKOV
07/01/1980
Krasnoyarsk
 
4.
71716/14
21/10/2014
Anton Viktorovich ZABIYAKA
14/07/1975
Amursk
 
5.
372/15
31/07/2015
Aleksey Gennadyevich KUDRYAVTSEV
01/12/1961
St Petersburg
 
QUESTIONS
1. Having regard to the injuries found on the applicants after the time spent by them in State custody, have the applicants been subjected to torture, or inhuman or degrading treatment, in breach of Article 3 of the Convention (see, among other authorities, Razzakov v. Russia, no. 57519/09, 5 February 2015; Gorshchuk v. Russia, no. 31316/09, 6 October 2015; Turbylev v. Russia, no. 4722/09, 6 October 2015; Fartushin v. Russia, no. 38887/09, 8 October 2015; Aleksandr Andreyev v. Russia, no. 2281/06, 23 February 2016; and Leonid Petrov v. Russia, no. 52783/08, 11 October 2016)?
 
2. Have the authorities discharged their burden of proof by providing a plausible or satisfactory and convincing explanation of how the applicants’ injuries were caused (see Selmouni, cited above, § 87, and Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000‑VII and Bouyid v. Belgium [GC], no. 23380/09, § 83 and further, ECHR 2015)?
 
3. Did the authorities carry out an effective investigation, in compliance with the procedural obligation under Articles 3 and 13 of the Convention (see Lyapin v. Russia, no. 46956/09, §§ 125-40, 24 July 2014), having regard to:
 
(a) the investigating authorities’ refusals to open criminal cases and investigate the applicants’ allegations of ill-treatment by the State officials, and the overruling of those refusals as unlawful and unsubstantiated by higher investigative authorities or courts, and
 
(b) the investigating authorities’ inability to implement full investigative measures within the framework of the pre-investigation inquiries, before and/or after amendments to the Code of Criminal Procedure introduced by Federal Law no. 23-FZ of 4 March 2013, for example, confrontations, identification parades, searches, and so forth?
 
4. As regards case no. 21396/11, have the authorities discharged their obligation under the procedural aspect of Article 3 of the Convention in respect of the alleged beating of the applicant by another detainee(s)?
 
5. As regards case no. 64761/13, has there been an interference with the applicant’s right to respect for their private and family life, within the meaning of Article 8 § 1 of the Convention, in view of his respective transfer to a penitentiary facility outside his home regions and the effects those decisions had on the applicant’s contacts with his family members? If so, did the interference in question fulfill the criteria set out in Article 8 § 2 of the Convention (see Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, §§ 835-51, 25 July 2013)? In this connection, (a) having regard to the terms of Article 73 of the Russian Code on the Execution of Sentences (“CES”), was the interference in question “in accordance with law”; (b) did it pursue one or more legitimate aim(s); and (c) was it “necessary” for the pursuit of such an aim, in other words, supported by relevant and sufficient reasons and proportionate? More specifically, did the domestic authorities carry out a balancing exercise to assess proportionality of the impugned transfers to the aim(s) sought? Does Article 81 of the Code on the Execution of Sentences provide for a possibility of carrying out such balancing exercise after a detainee’s transfer to a certain facility?
 
6. In respect of the same case, did the applicant have effective domestic remedies for his complaints under Article 8 of the Convention at his disposal, as required by Article 13 of the Convention? In particular, bearing in mind the wording of Article 81 of the CES, is there an available avenue of redress allowing quashing the decision by the agencies of the Federal Penitentiary Service on a detainee’s placement in a facility located outside of his or her home region of Russia prior to or after its implementation on the grounds of an alleged interference with the detainee’s private and/or family life?
 
7. As regards cases nos. 71716/14 and 372/15, was the use of handcuffing in respect of the applicants in the episodes referred to in the table appropriate and compatible with Article 3 of the Convention? Were there sufficient reasons to expect any violent acts from the applicants? Were the court convoy premises secure enough to avoid handcuffing? (see, e.g. Kashavelov v. Bulgaria, no. 891/05, §§ 38-40)? Also, did the applicants have an effective remedy within the meaning of Article 13 with regard to allegedly unnecessary handcuffing?
 

 
No
 
Application No. and Title
APPENDIX No. 1
Article 3 - Substantive aspect
ARREST
ALLEGED ILL-TREATMENT
EVIDENCE
Date
Time
Facts
Region Town
Street
Entity
Date
Time
Location
Alleged Facts
Perpetrator(s)
Date
Doc Type
Authority
Description
of Injuries
1.
21396/11
Aleksandrov
v. Russia
 
 
 
From 16/02/2010 to 08/03/2010 daily, twice a day
UP-288/T Minusinsk, Krasnoyarsk Region
Beaten on his head, on the liver area, his legs were pulled in opposite directions to make him "do the splits"
Prison employees
18/03/2010
Examination
Investigator
Torn skin on both sides of the groin; bruise on the right side of the chest; scar on the left eyebrow; deformation of the nose bones
30/03/2010
Forensic examination
Krasnoyarsk Regional Forensic Bureau
Scar on the face dating 4 to 6 months before the examination
16/07/2010
UP-288/T Minusinsk, Krasnoyarsk Region
Broken nose in a fight with a co-detainee
Co-detainee O.
19/07/2010
Medical certificate (выписка из медицинской карты)
cited in the refusal to prosecute of 26/10/2010
Scratch on the nose, bruise on the right side of the nose
20/08/2010
Forensic examination
cited in the refusal to prosecute of 26/10/2010
Injury of the nose manifested in a scratch and a bruise on the face
26/10/2010
Testimony of a forensic expert
cited in the refusal to prosecute of 26/10/2010
Contradictory descriptions of the X‑ray results: 20/07/2010 - fracture of the nose bones without displace-ment; 21/07/2010 - displaced open fracture of the nose bones
2.
45750/13
Babak
v. Russia
 
 
 
28/08/2009
IK-7 in the Vladimir Region
The applicant was placed in a punishment ward where under unestablished circumstances (administration claimed that he was subdued after attack on the warden on 28/08/2016) he received the following injuries: multiple fractured ribs on the right side, internal blunt chest and waist injuries, shick lung and pneumoderma.
 
Warders
21/11/2011
Abstract of the medical record
Deputy head of the prison’s medical ward
On 29/08/2009 the applicant was transported to the medical ward with multiple fractured ribs on the right side, internal blunt chest and waist injuries, sick lung and pneumoderma.
3.
64761/13
Starikov
v. Russia
 
 
 
During detention 09/03/2010
Pre-trail detention cell in SIZO-2 Novokuznetsk
The applicant was beaten by a cellmate Mikhail, as result- closed fracture of the elbow.
Cellmate Mikhail
20/09/2012
Extract from the patient’s medical file
Deputy Head of Medical Treatment and Prevention Issues Unit of IK-5.
Closed fracture of the elbow
 
 
 
 
 
During detention 06/05/2010
Transportation van
Detainees Golubyatnikov, Sukhanov, Shtrosherer had beaten the applicant, as they accused him of collaboration with authorities. Security guard did not intervene. After 10 minutes the beating was stopped by the authorities.
 
Detainees Golubyatnikov Sukhanov, Shtrosherer
20/09/2012
Extract from the patient’s medical file
Deputy Head of Medical Treatment and Prevention Issues Unit of IK-5.
Fracture of the 7th rib on the left, pneumothorax. Hospitalisation, operation.
 
 
 
 
 
During detention 21/05/2010
pre-trial detention cell in SIZO-2 Novokuznetsk
While back to cell from the hospital, the applicant was beaten with hands and legs by unknown person (cellmate). The nose had been broken.
Unknown person (cellmate)
n/a
n/a
n/a
Broken nose, bleeding.
 
 
 
 
 
During detention 25/07/11
pre-trail detention cell SIZO-2 Novokuznetsk
Beatings with hands and legs on the applicant’s head, nose, jaw. The operative officer took the perpetrators out of cell. The SIZO authorities forced the applicant to write an explanatory note that he caused the injuries himself, what he did.
Petrenko, Smirnov and
2 others (cellmates)
20/09/2012
Extract from the patient’s medical file
Deputy Head of Medical Treatment and Prevention Issues Unit of IK-5.
Mandibular fracture.
4.
71716/14
Zabiyaka
v. Russia
25/10/2012 around 17 :00
Holmsk district investiga-tion depart-ment of the investiga-tive committee at the Sakhalin Region
Holmsk district investigation department of the investigative committee at the Sakhalin Region, investigator T.
21/12/2012-28/12/2012
IVS Holmsk
The applicant was handcuffed to his bed during night time.
IVS personnel (on duty officers
Mrs S., Mrs. B and Mr A.)
Acknow-ledgement of handcuffing in the investigator’s decision
 
 
The arrest record was drafted on 25/10/2012.
According to the applicant he came to the police station on 24/10/2012 at 15:30 for questioning. He signed a confession and the criminal case (sexual abuse of minors) was initiated on the next day. It is unclear whether he returned home on 24/10/2012 or stayed at the station until 25/10/2012. It appears that he was detained without any record during that night.
5.
372/15
Kudryavtsev
v. Russia
 
 
 
23/01/2015, 16/02/2015, 24/02/2015, 18/05/2015, 22/09/2015, 29/09/2015 and other dates
Dzerzhinsky District Court
St. Petersburg, convoy premises
Handcuffing for multiple hours
Convoy officers
 
 
 
 
 


No
Application No. and Title
APPENDIX No. 2
Article 3 - Procedural aspect
DOMESTIC COMPLAINT AND THE GOVERNMENT REACTION
Date of
Complaint
Authority
Type of Reaction
Date(s)
Procedural Outcome
1.
21396/11
Aleksandrov
v. Russia
16/03/2010
Investigator
Consistently refused
11/05/2010
Refusal to prosecute, upheld in court on 30/12/2010 and 22/02/2011
Failed to secure the video tapes (stored for 14 days); failed to question all the involved prison authorities; the forensic expert additionally stated that he had seen the injuries first fixed in the investigator’s examination (including the injuries of the groin) but that they were not likely to have been caused by physical violence - no further checks.
19/07/2010
Investigator
Consistently refused
26/10/2010
Refusal to prosecute, upheld in court on 28/12/2010 and 22/02/2011
The contradictions of the medical documents not resolved; video tapes not secured (stored for 14 days).
The investigator decided to launch another pre-investigatory control with regard to the co-detainee. No information on the progress.
2.
45750/13
Babak
v. Russia
Unknown
 
Criminal Investigation
Criminal investigation initiated against "unidentified" colony warders on 19/10/2009. On 06/08/2012 the criminal investigation was suspended for lack of evidence. Two versions of events put forward by the authorities;
1) the applicant resisted a warder;
2) the applicant fell in a punishment cell.
Criminal investigation is suspended. Perpetrators were not identified. However, it was confirmed that the was a crime committed against the applicant. The applicant brought a tort claim against the penitentiary facility. On 10/09/2012 (as confirmed by the Vladimir Regional Court) the Leninskiy District Court of Vladimir awarded RUB 30,000 in non-pecuniary damages for having been beaten up under the authorities’ control and dismissed the remainder of the claims.
3.
64761/13
Starikov
v. Russia
 
Kemerovo Regional Court
Consistently refused
17/01/2014
The Appeal court supported the 1st instance court decision not to examine the applicant’s claim under A125.
31/10/2012
Police
Consistently refused
07/11/2012 - 12/12/2013
16 procedural documents in respect of refusal/quash/ legal appeal.
4.
71716/14
Zabiyaka
v. Russia
14/01/2013
Investigator Mrs T.
Consistently refused
18/02/2013 - refusal to initiate a criminal case
A125 complaint refused
(appeal - 07/07/2014,
first instance - 22/05/2014)
Criminal case not initiated, A125 complaint not granted
The investigator/courts acknowledged that the App was handcuffed to his bed. They claimed that he was suicidal (based on psychological assessment and the attempt to harm himself on 09/11/2011) and that these measures of restraint were necessary.
5.
372/15
Kudryavtsev
v. Russia
Unknown
Prosecutor
Consistently refused
21/04/2015
The applicant then appeal against the prosecutor’s refusal, in vain
The prosecutor referred to Article 21 of the Police Act (ФЗ "О полиции") stating that handcuffing was applied for the convoy and protection purposes
1. "Accompanying" information from IZ 47/1 with regard to the applicant
2. Number of co-detainees at the Dzerzhinsky District Court convoy premises, any specific incidents of the applicant’s violence or threats against the police officers and/or co-detained
3. Plan of the Dzerzhinsky District Court convoy premises
 
 
 

No.
Application No.
and Title
APPENDIX No. 3
Other complaints under the well-established case-law
Complaints and events referred to by the applicants
1.
64761/13
Starikov v. Russia
Article 8- VISIT: placement in the remote detention facility. The applicant cannot maintain the family contacts. Appeal Moscow City Court 6/04/15.
2.
71716/14
Zabiyaka v. Russia
Art. 5 (3) DURDT - excessive length of pre-trial detention –25/10/2012-11/08/2014 detention orders based on the gravity of the alleged crimes
 

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