CASE OF TURBYLEV v. RUSSIA
Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
András Sajó;Dmitry Dedov;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska
5. The applicant was born in 1970 and lives in Ukhta, the Komi Republic. 6. In April 2005 a jewellery shop and other premises in a commercial centre in the Sosnogorsk district of the Komi Republic were robbed; in the course of those events, a woman guard was attacked and suffered injuries. Investigator A., from the investigation unit of the Sosnogorsk police department, opened a criminal case into the robbery. On 15 June 2005 the criminal proceedings were suspended for failure to establish the identity of a person to be charged. 7. On 25 August 2005 a certain R. reported to the police that her boyfriend B. had committed the robbery together with Zh. and the applicant. On the same day investigator A. reopened the criminal proceedings. 8. On 26 August 2005 the police arrested B., Zh. and the applicant. Investigator A. was present at the time of the arrest. The three men were taken to the Sosnogorsk police department of the Komi Republic (отдел внутренних дел г. Сосногорска Республики Коми). 9. Police officers, in particular Z., the head of the criminal police division of the Sosnogorsk police department, interviewed the applicant about his involvement in the robbery. According to the applicant, they demanded that he confess to the robbery and G., an operative officer in the criminal investigation unit of the police department, punched and kicked him on different parts of his body. Fearing new violence, the applicant confessed to having participated in the crime as requested, and signed a record of his “surrender and confession” (явка с повинной) that had been drawn up by operative officer G. at Z.’s request. 10. According to that record, on 26 August 2005 in office no. 12 of the Sosnogorsk police department police officer G. obtained from the applicant his confession to the crime, in accordance with Article 142 of the Code of Criminal Procedure of the Russian Federation (“CCrP”). In particular, the record stated that the applicant had assisted B. and Zh. by loading the property stolen from the shops into his car and transporting it; that he had confessed without any physical or psychological pressure being exerted on him; and that he had been informed of Article 51 of the Constitution. The record did not indicate the exact time when the confession was obtained and did not explain the meaning of Article 51 of the Constitution (concerning self-incrimination, see paragraphs 28, 47 and 49 below). 11. At Z.’s request, the applicant wrote in the police station visitors’ registration log that he had struck his own head against a wall, and that he had no complaints against the police officers. 12. At 2.57 p.m. on the same day investigator A. drew up a record of the applicant’s arrest as a suspect in the case. 13. On the same day the applicant was placed in a temporary detention facility (IVS) at the Ukhta police department. According to the IVS records, on arrival he had bruises under his eyes, his lips were burst, his lower jaw was swollen on the left side, and he had bruises on his back and abrasions on his knees. 14. On 27 August 2005 the applicant was questioned as a suspect in the presence of a lawyer. He retracted the confession statement that he had given on the previous day, and explained that he had made the statement as a result of illtreatment by the police officers. 15. On 30 August 2005 a judge of the Sosnogorsk Town Court ordered that the applicant be detained on remand. In reply to the judge’s question about the origin of his facial injuries, the applicant stated that he had been beaten up by operative officers from the police department. On the same day the applicant’s legal-aid counsel, who was representing the applicant at the court hearing, lodged an application with the Sosnogorsk prosecutor in which he requested that an inquiry be conducted into the applicant’s complaint and that those responsible for his illtreatment be prosecuted. 16. On 31 August 2005 the applicant was placed in pretrial detention facility SIZO 11/2, where he was examined by a doctor and found to have bruising beneath his eyes, a swollen nasal bridge, two-centimetre abrasions on the right side of his forehead, hematoma on the left side of his lower jaw and abrasions on the small of his back and right knee (as recorded in a certificate of that detention facility dated 29 September 2005). 17. On 5 September 2005 the applicant’s counsel requested investigator A., who was in charge of the robbery case, to order a forensic medical examination (судебномедицинская экспертиза) of the applicant. The investigator rejected the request as irrelevant to the robbery case. 18. Following the application by the applicant’s counsel (see paragraph 15 above), investigator V. of the Sosnogorsk prosecutor’s office carried out a preinvestigation inquiry into the alleged illtreatment of the applicant. 19. On 5 September 2005 the investigator ordered a forensic medical examination of the applicant; this was carried out by the Ukhta Forensic Medical Bureau on 7 September 2005. The expert’s report stated that the applicant had the following injuries: bruises measuring up to 1 to 3.5 centimetres on the lower eyelids of both eyes, two abrasions measuring 4 to 0.6 and 1.5 to 0.2 centimetres on his back; and an abrasion measuring 0.6 to 0.5 centimetres on his right knee. The injuries could have been caused by impacts from blunt hard objects with a limited contact surface, in the period 8-12 days before the examination. They could not have been caused by a single impact as a result of a fall against a flat surface. 20. The investigator received “explanations” (объяснения) from investigator A. (responsible for the robbery case) and from the police officers who had taken the applicant to the police station and interviewed him about his involvement in the robbery. In particular, police officer G. stated that in the course of a “conversation” (беседа) which he had had with the applicant, the latter had suddenly jumped to his feet and hit his head against the wall, as a result of which his nose had started bleeding. Police officer K. also stated that he had seen the applicant hitting his own head against the wall. Police officer Z. explained that in the course of his “conversation” with the applicant the latter had recounted the details of the robbery committed by him; that the applicant had explained that he had hit his own head against the wall and that he had no complaints against police officers; and that the applicant had entered this explanation in the police station visitors’ registration log. 21. On 9 September 2005 investigator V. held that the applicant’s allegations of ill-treatment, in particular the claims that he had been struck “in his kidneys” and pushed so that his face had hit the wall and he had fainted, had not been based on real facts and that no criminal case was to be opened against police officers G., Z., Ku., B. and M., pursuant to Article 24 § 1 (2) of the CCrP (lack of the elements of a crime in the impugned acts). 22. On 5 December 2005 the Sosnogorsk prosecutor set aside the investigator’s decision of 9 September 2005 as unlawful and unfounded, on the ground that the circumstances in which the applicant had received his injuries had not been reliably established. He referred to the description of the applicant’s injuries on his arrival in the IVS (see paragraph 13 above) and the SIZO (see paragraph 16 above) and his examination by the forensic medical expert (see paragraph 19 above). He stated that the expert’s suggestions as to how the injuries had been sustained made it doubtful that the applicant could have received his injuries as a result of a one-off impact by his face against a wall. The prosecutor further noted that the applicant had explained that he would most likely be able to identify the police officer who had beaten him at the police station. However, it was not possible to carry out an identification parade and a confrontation in a preinvestigation inquiry. The prosecutor considered that it could not be ruled out that, after his arrest, the applicant had been subjected to acts of violence in order to make him confess to the crime. The applicant’s version of his illtreatment by the police officers could only be verified by way of a full investigation. In order to do so it was necessary to open a criminal case, given that there was sufficient information disclosing elements of a crime under Article 286 § 3 (a) of the Criminal Code (official misconduct with the use of violence). The prosecutor ordered that a criminal case be opened. 23. In the course of the ensuing investigation the police officers who had arrested the applicant were questioned as witnesses. The applicant was questioned as a victim. An additional forensic medical expert’s report was obtained on 15 February 2006. It reiterated the conclusions in the previous report (see paragraph 19 above). 24. On 4 March 2006 an investigator from the Sosnogorsk prosecutor’s office terminated the proceedings for lack of the elements of a crime in the acts of the police officers, pursuant to Article 24 § 1 (2) of the CCrP. 25. On 30 June 2006 a deputy prosecutor of the Komi Republic set aside the investigator’s decision and reopened the criminal proceedings. Three further decisions to terminate the proceedings were subsequently taken and then set aside as unfounded and based on an incomplete investigation. In one of the decisions, dated 24 November 2006, the deputy prosecutor ordered that the inconsistencies between the statements of the police officers and that of the applicant be eliminated and that identification parades and confrontations be held, if necessary. When questioned again as a victim, the applicant stated, inter alia, that he remembered that police officer G. had hit his head against the wall and started punching him “in the kidneys” (as stated in a decision to terminate the proceedings of 4 January 2007). 26. The most recent decision to terminate the proceedings for lack of the elements of a crime under Article 286 § 3 (a) of the Criminal Code in the acts of police officers G., Ku. and B. was taken on 1 April 2007. The investigator concluded that the applicant’s allegations had been refuted by police officers G. and K., who stated that the applicant had hit his own head against the wall; by the record of his surrender and confession and the forensic medical report of 15 February 2006, in that the applicant’s injuries could have been sustained as a result of impacts from blunt hard objects with a limited contact surface. It does not appear from the decision that investigative acts such as identification parades and confrontations with the applicant’s participation were carried out. 27. At a preliminary hearing held by the Sosnogorsk Town Court on 13 April 2006 the applicant’s counsel requested that the record of the applicant’s surrender and confession of 26 August 2005, on which the prosecution relied, be excluded from evidence pursuant to Article 75 § 2 (1) of the CCrP, as it had been obtained in the absence of a lawyer. The Town Court dismissed the request. 28. At his trial, the applicant pleaded his innocence and submitted that he had written his confession statement on the instructions of police officer Z. as a result of physical and psychological coercion by the police officers; in particular, police officer G. had beaten him “in the kidneys and liver” and his head had been struck against the wall so that he had fainted. He had not been informed of his right under Article 51 of the Constitution not to give selfincriminating statements, as that part of the record had been added by police officers at a later stage. The applicant asserted, in particular, that on the night of the robbery he had arrived at the commercial centre, by car and at B.’s request, and had towed B.’s car until its engine started, without knowing anything about the robbery. Two months later B. had offered him gold jewellery, allegedly belonging to B.’s acquaintance, for sale. The applicant had returned some of the jewellery to B. and kept the rest for himself. He had understood from police officer Z. that the gold which he had received from B. had been stolen from the Sosnogorsk district commercial centre. He had therefore told Z. about the gold he had kept at his home. 29. The applicant’s co-defendant Zh. pleaded his innocence, asserting that he had given self-incriminating statements as a result of his illtreatment by police officers, in particular by G., who had allegedly beaten him up, kicked him and burned his fingers with a cigarette; he also stated that after his arrest on 26 August 2005 he had seen the applicant, on his knees and bleeding, at the police station. 30. The applicant’s co-defendant B. admitted before the trial court that he had committed the robbery together with a certain Ch., and stated that the applicant and Zh. were innocent. In particular, B. stated that on the night of the robbery he had called the applicant, asking him for help because his car had broken down; the applicant had arrived by car as requested, towed B.’s car (with the stolen property inside) until the engine started and then left without knowing anything about the robbery. Two or three months later, since he was experiencing difficulties with storing and selling the stolen property, B. had asked the applicant to look after the gold jewellery and to buy some of it if he wished. The applicant had agreed. B. also stated that he had not given any selfincriminating statements during the preliminary investigation, in spite of the physical violence used against him by the police officers, in particular by G. 31. The applicant’s wife stated, among other things, that on the day of his arrest the applicant had been taken back to their home by the police officers in order for their flat to be searched. He had had an abrasion on his head, his lip was burst and his nose was swollen. 32. Police officer Z., examined by the trial court as a witness, stated that he and other police officers had arrested the applicant and his two codefendants after B.’s girlfriend had reported their involvement in the robbery. At the police station he had talked to the applicant about the robbery several times. The applicant had confessed, named his accomplices and expressed his readiness to surrender the stolen gold. Z. had suggested that the applicant write a statement of his surrender and confession. The applicant had agreed and Z. had asked his subordinates to prepare the necessary document. No violence or threats had been used against the applicant. 33. Police officer G. stated that after the applicant’s arrest he had taken the applicant to the police station. The applicant had been taken to Z.’s office and later Z. had requested G. to obtain from the applicant a statement of his surrender and confession. The applicant had written down his statement and signed it. G. had not used any violence against the applicant. G. had come out of his office to register the statement with an officer on duty, while the applicant had stayed with police officer K. On returning to his office, G. had seen the applicant suddenly jump to his feet and strike his head against the wall. The applicant had fallen to his knees and started bleeding, “probably from his nose”. K. had given him a towel and asked whether he needed a doctor. The applicant had answered negatively. Z. had then taken the applicant to his office again. 34. Police officer K. stated that the applicant had jumped to his feet and struck his forehead against the wall once and then had fallen to his knees. K. had wanted to call a doctor but the applicant had refused. He had given the applicant a towel because the applicant was bleeding. K. denied any violent behaviour on the part of the police officers. 35. Investigator A. stated that she had investigated the robbery case and had given instructions (отдельные поручения) to the police officers in the criminal investigation unit of the Sosnogorsk police department. She had not instructed them to question the applicant or to collect a statement of his surrender and confession. Police officer G. had obtained the applicant’s statement of his surrender and confession as a result of the applicant’s free will. When questioning the applicant as a suspect (on 27 August 2005, see paragraph 14 above) she had noticed his injuries and asked if he had needed medical assistance, but he had refused. 36. The applicant’s counsel maintained before the trial court that the applicant’s statement of his surrender and confession, which he had retracted on the following day when questioned for the first time in the presence of a lawyer, should be declared inadmissible evidence. She noted that investigator A. had drawn up the record of the applicant’s arrest as a suspect on 26 August 2005. However, for unknown reasons she had not questioned him as a suspect on the same day. Instead, the police officers had obtained the statement of his surrender and confession on their own initiative, without any such instruction from the investigator. They had done so using psychological and physical coercion, as confirmed, inter alia, by the statements of Zh. and the applicant’s wife (see paragraphs 29 and 31 above), the certificate from detention facility IZ-11/2 (see paragraph 16 above) and the forensic medical expert report of 7 September 2005 (see paragraph 19 above). Furthermore, his confession statement had been obtained in the absence of a lawyer. Under Article 142 § 1 of the CCrP, a statement of one’s surrender and confession was meant to be voluntary. Therefore, if obtained from a person arrested on suspicion of having committed a crime, any such statement should be subjected to particular scrutiny. Its voluntary nature was ensured through procedural guarantees under Articles 46 (“The suspect”) and 51 (“Compulsory participation of counsel for the defence”) of the CCrP. Otherwise, such a confession statement should be declared inadmissible evidence in accordance with Article 75 § 2 (1) of the CCrP. 37. In its judgment of 6 December 2007 the Town Court held that the applicant’s allegation that the statement of his surrender and confession had been given under duress was unsubstantiated. It relied on the statements by the police officers, denying any wrongdoing on their part (see paragraphs 32-34 above), the investigative authority’s most recent decision to terminate the criminal proceedings against them which, as the Town Court noted, had been taken in accordance with the Code of Criminal Procedure and had not been revoked or quashed (see paragraph 26 above), and a report from an internal police inquiry which had dismissed the applicant’s allegations of illtreatment. 38. The Town Court held that it had critically assessed the applicant’s statements at the trial and concluded that they represented the position of the defence, in that they were aimed at evading criminal responsibility. Those submissions had been refuted by his and Zh.’s statements of surrender and confession, as well as by the statements by the following witnesses: B.’s girlfriend, who had provided hearsay evidence about the applicant’s involvement in the robbery; five police officers who had participated in the applicant’s and his co-defendants’ arrest or the operative follow-up, in particular Z., G., and K.; investigator A., in charge of the robbery case; Z.A., who had denied seeing the applicant in the porch of his building on the night of the robbery (where, according to her former boyfriend who had been heard by the court as a witness for the defence, she had spent time that evening), and her mother Z.E., who had stated that Z.A. had not gone out after 9 p.m.; and Kh., who had been an attesting witness during the search at the applicant’s home during which certain items were seized. 39. The Town Court held that it had based its judgment on the statements of surrender and confession given by the applicant and Zh., along with statements by the victims, the prosecution witnesses and other evidence. It found that on 12 April 2005 B., Zh. and the applicant had entered into a conspiracy to commit theft from the shops in the commercial centre. According to the roles agreed on between them, the applicant had remained on guard in his car outside the commercial centre, while B. and Zh. had entered while the centre was still open and had hidden there. During the night they had attacked a woman guard and tied her up. Then they had forced locks and stolen property, in particular jewellery and mobile phones. The applicant had helped them to carry the stolen property out and load it into his car, in which they all had left. 40. The Town Court convicted the applicant of high-value theft with unlawful entry, committed in conspiracy by a group of persons, and sentenced him to six years’ imprisonment. In sentencing the applicant the Town Court took into account information about his personality, in particular that he had received positive character references from his places of residence and employment, and that he had no criminal or administrative offences record. It considered his statement of surrender and confession, the fact that he had two minor children and that he had voluntarily surrendered the stolen gold jewellery, as well as his health condition, as mitigating circumstances. B. and Zh. were convicted of robbery with the use of violence and sentenced to nine years’ and eight and a half years’ imprisonment respectively. The Town Court granted the victims’ civil actions and ordered the applicant and his co-defendants to pay 396,800 Russian roubles (RUB) jointly in respect of pecuniary damage. The victims’ remaining claims were to be examined in separate civil proceedings. 41. The applicant and his counsel appealed against the judgment. His counsel argued, inter alia, that the trial court had based its judgment on inadmissible evidence, in particular the statement of the applicant’s surrender and confession of 26 August 2005, which had been given by him as a result of ill-treatment by the police officers and in the absence of a lawyer. She reiterated the arguments put forward before the trial court (see paragraph 36 above). 42. On 6 June 2008 the Supreme Court of the Komi Republic examined the case on appeal. It endorsed in full the trial court’s decision concerning the admissibility of the statement of the applicant’s surrender and confession. It held, in particular, that the statement had been obtained in accordance with the Code of Criminal Procedure. Under Article 142 § 1 of that Code, a statement of surrender and confession was a voluntary statement by a person about a crime committed by him. It had not therefore been necessary to have an instruction from an investigator in order to obtain it. The law did not provide for any additional requirements to such a statement, save that the individual concerned was to be warned of his or her criminal responsibility for deliberately giving false information. Therefore, the absence of a lawyer had not rendered the statement unlawful and had not violated the applicant’s right to defend himself. He had been informed of his right under Article 51 of the Constitution, as confirmed by his signature on the record of his surrender and confession. 43. The Supreme Court of the Komi Republic further noted that the trial court had examined as witnesses all of the police officers who had seen the applicant at the police station with a view to verifying their implication in the alleged crime. They had all denied any wrongdoing. It had been established that, having written his confession, the applicant had suddenly jumped to his feet and hit his head against a wall. The Supreme Court also referred to the most recent decision by the investigative authority, dated 1 April 2007, by which the criminal proceedings against the police officers had been terminated (see paragraph 26 above), and to the results of the internal police inquiry dismissing the applicant’s allegations of illtreatment (see paragraph 37 above). It upheld the judgment. 44. The applicant’s counsel unsuccessfully raised the issue of the admissibility of the record of the applicant’s surrender and confession in her requests for supervisory review of the case before the Supreme Court of the Komi Republic and the Supreme Court of the Russian Federation. The former court rejected it for the same reasons as before (decision of a judge of the Supreme Court of the Komi Republic of 5 September 2008 dismissing the request, as endorsed by the President of that court on 27 October 2008). 45. The Supreme Court of the Russian Federation similarly stated that the applicant’s argument – that the statement of his surrender and confession had been obtained in the absence of a lawyer – lacked a basis in domestic law, and that the allegation of the applicant’s illtreatment at the hands of the police was unsubstantiated, as shown through its examination by the trial court which had heard the police officers, particularly Z., G. and B. (decision of a judge of the Supreme Court of the Russian Federation of 22 December 2008 dismissing the request for supervisory review, as endorsed by a Deputy President of the Supreme Court on 10 March 2009).