CASE OF SHLYCHKOV v. RUSSIA
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 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)
Branko Lubarda;Dmitry Dedov;George Nicolaou;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova
5. The applicant was born in 1955 and lives in Naro-Fominsk in the Moscow region. He is currently serving his sentence in IK-4 detention facility in the village of Udarnyy in the Republic of Mordovia. 6. At 8.20 p.m. on 6 March 2004 Ms E. was robbed in the street and was stabbed through the heart. She died of the wound shortly afterwards. The assailant took a mobile phone and 2,500 Russian roubles (RUB) from the victim’s purse. 7. The Naro-Fominsk town prosecutor’s office (“the town prosecutor’s office”) instituted a criminal investigation into E.’s killing. Having obtained from the mobile phone operator the call logs in respect of the victim’s phone, the investigators established that at 9.50 pm on 6 March 2004 a phone call had been made to a number belonging to Ms A. from E.’s phone using the applicant’s SIM card. 8. At 11 a.m. on 18 March 2004 the police arrived at the applicant’s flat and ordered him to follow them to the police station. 9. Once at the police station, the applicant explained that on 6 March 2004 he had bought a used mobile phone from a stranger because a friend of his had earlier expressed an interest in purchasing a second-hand phone. In order to test the phone, he had inserted his SIM card and made a call to his then girlfriend, Ms A. He also claimed that on the same day he had played slot machines and won RUB 2,500. Then the officers questioning him showed him a call log from Ms E.’s phone, informed him of the killing and suggested that he confess to mitigate his sentence. The applicant refused to admit to the crime. 10. The officers proceeded to hit and kick him on his head, chest and flanks. The applicant fainted several times. The beatings went on for twelve hours. Eventually the applicant gave in and agreed to write down a “statement of surrender and confession” (явка с повинной), as dictated by the officers, admitting to the robbery and murder of Ms E. 11. An investigator of the town prosecutor’s office, Mr A., questioned the applicant as a suspect and later went to the applicant’s flat to seize a few items including the mobile phone contract for the applicant’s SIM card. 12. The applicant was not provided with legal assistance on 18 March 2004. 13. The applicant was brought to the police station at 10 p.m. on 18 March 2004. Upon arrival the police officers asked him how he had obtained Ms E.’s phone and then showed him the call log. The applicant looked at the log and then asked the officers to leave him alone in the room. He then wrote a statement of surrender and confession describing the circumstances of the crime. No physical force was applied to the applicant. 14. In the Government’s submission, on 18 March 2004 the applicant complained to the town prosecutor’s office; however, he did not raise the issue of ill-treatment. 15. At 12.30 p.m. on 19 March 2004 an arrest record was drawn up. It contained a handwritten note by the applicant that read as follows: “[I] agree with the arrest, rights are understood, [I have] no statement to make”. 16. A handwritten statement signed by the applicant and dated 19 March 2004 affirmed that the applicant’s rights had been explained to him; that he did not require legal assistance; that the “bodily injuries visible at [that] moment on [his] face and body [had been] inflicted on 11 March 2004 by [his] roommate Dima”; and that police officers had not used force against him. 17. Between 12.40 a.m and 2.55 a.m on 19 March 2004 the applicant was questioned without a lawyer present. 18. In the early morning on 19 March 2004 the applicant was placed in a temporary detention centre (Изолятор временного содержания, hereinafter “IVS”). According to the Government, when placed in the IVS, the applicant did not make any healthrelated complaints. He had a bruise under his right eye. An entry in the IVS logbook was made by an ambulance doctor stating that the applicant was “in a post-epileptic-fit state”. 19. Between 11.10 a.m. and 12.50 p.m. on 19 March 2004 the applicant was questioned in the presence of Mr B., a legal-aid lawyer. According to the Government, in the course of the interview he described how he had committed the crime. The record of the interview reads that the applicant found the knife used as the murder weapon at a market after a fire. 20. On 20 or 22 March 2004 the investigators carried out an investigative re-enactment. In the applicant’s submission, the re-enactment was limited to bringing him to the crime scene and photographing him there. According to the Government, during the visit the applicant confirmed his statement made in the presence of the lawyer in the course of the second interview of 19 March 2004. He also selected a knife similar to that used to stab Ms E. from a selection of four knives available at a local shop. 21. On 20 March 2004 a judge of the Naro-Fominsk Town Court (“the Town Court”) placed the applicant in custody. The applicant complained to the judge about his ill-treatment; she refused to take note of the allegations, however, stating that they could be examined in the course of the trial against the applicant. 22. On 25 March 2004 the applicant was formally charged with murder and robbery. He retracted his confession. 23. On 26 March 2004 the police transported the applicant to a remand prison. However, the staff on duty refused to admit the applicant as he had visible injuries. The applicant was returned to the IVS. On 29 March 2004 the police again tried to transfer him to the remand prison and were refused for the second time. 24. On 30 March 2004 the police brought the applicant to the NaroFominsk polyclinic where he underwent an X-ray examination which showed that there were fractures to three ribs with signs that the bones were beginning to heal. The following day the applicant was admitted to the remand prison. 25. According to the applicant, once in the remand prison, he complained about his illtreatment to the town prosecutor’s office. 26. According to the Government, the applicant raised the ill-treatment complaint on 17 June 2004. The town prosecutor’s office carried out a preinvestigation inquiry on the basis of the complaint. 27. On 18 June 2004 Mr A., an investigator with the town prosecutor’s office, refused to initiate criminal proceedings into the alleged ill-treatment. He observed that upon arrival at the IVS the applicant had had a bruise under his right eye and yet had made no complaints about his state of health, and noted that, according to the IVS logbook, an ambulance had been called for the applicant on account of an epileptic fit. 28. On an unspecified date the criminal case against the applicant was submitted for trial before the Moscow Regional Court (“the Regional Court”). 29. The applicant first took cognisance of the decision of 18 June 2004 on 29 June 2004 while studying the case file in the criminal case against him. 30. The applicant complained about the town prosecutor’s office’s refusal of 18 June 2004 to the Russian Prosecutor General’s Office, which forwarded it for examination by the Prosecutor’s Office of the Moscow region. The latter forwarded the complaint to the town prosecutor’s office (against which the complaint was directed). The applicant received no reply. 31. The applicant did not attempt to institute any judicial review proceedings, considering that they would be futile on account of the judge’s reply of 20 March 2004. 32. On 27 July 2004 the Regional Court scheduled a trial hearing on 9 August 2004. 33. The applicant raised the matter of ill-treatment before the Regional Court at his trial. 34. On 20 October 2004 the Regional Court ordered an expert medical examination of the X-ray of 30 March 2004. It can be seen from the trial record of that date that N. informed the judge that he was not an expert in interpreting Xrays and asked for a period of two weeks to consult a colleague; the judge acceded to the request. On 4 November 2004 N. drew up a report stating that the rib fractures had been caused by blunt objects; by 30 March 2004 the knitting together of the fractures had commenced; the fractures had been “considerably old” and “no injuries corresponding to [those of] 11 and 18 March 2004 [had been] identified”. The judge rejected the applicant’s request for another expert report. 35. The Regional Court dismissed the record of the first interview of 19 March 2004 as inadmissible evidence for the reason that the interview had been conducted without a lawyer present. 36. On 3 December 2004 the Regional Court convicted the applicant of robbery and murder and sentenced him to twenty years’ imprisonment. The court referred to the applicant’s pre-trial confession, the record of his questioning by the investigator, his statements at the investigative reenactment and other physical evidence. 37. The trial judge also examined in detail the evidence presented by the parties in relation to the allegation of illtreatment, including the decision of 18 June 2004 and the expert medical report ordered in respect of the X-ray. The judge also heard evidence from an expert, N., as well as investigator Mr A. and several police officers. The judge refused to examine the IVS logbook which, according to the applicant, would support his assertion that there were injuries. Instead, the judge examined a letter from the deputy director of the IVS, according to which on his arrival there the applicant only had had a black eye which he had explained as having received before the arrest. The deputy director had also noted that the logbook entry concerning the call for an ambulance had been made for another person. The judge dismissed the applicant’s allegations of ill-treatment and declared the relevant evidence (the confession statement, the interview record and the investigative re-enactment record) admissible. 38. On 6 December 2004 the applicant lodged an appeal reiterating the issue of his confession under duress without a lawyer present, as well as the weakness of the prosecution’s case against him. He insisted on his innocence. 39. On 14 December 2004 the applicant lodged an additional appeal in which he claimed that the Regional Court had wrongly considered his previous conviction as an aggravating factor and yet had chosen to regard the surrender and confession as a mitigating factor. He asked for the firstinstance judgment to be quashed on the grounds given in his appeal of 6 December 2004. 40. On the same date the applicant (through his counsel) lodged an appeal in which he insisted that the statement of surrender and confession had not been genuine as he had been forcibly brought to the police station and detained there for twelve hours with no access to a lawyer. 41. On 16 March 2005 the Supreme Court of Russia upheld the firstinstance judgment in a summary fashion. 42. The applicant further unsuccessfully sought supervisory review of his conviction. 43. On 5 April 2005 the applicant sent another complaint to the Prosecutor General’s Office, which was forwarded to the town prosecutor’s office. 44. On 12 May 2005 the deputy town prosecutor quashed the decision of 18 June 2004 and issued an instruction to carry out an additional preinvestigation inquiry. 45. On 15 May 2005 S., an investigator with the town prosecutor’s office, refused to institute an investigation into the applicant’s allegations of ill-treatment. He found it established that on 12 March 2004 a police officer in Naro-Fominsk had received a report of a violent fight; on 13 March 2004 he had invited the applicant to come in for a “preventative talk” and had noticed two bruises under the applicant’s eyes. S. concluded that the bruise under the applicant’s right eye had been a result of the injury inflicted long before the arrest. He also pointed out that the Regional Court had “carefully examined” the applicant’s version of ill-treatment by police officers. The issue of the fractured ribs was not examined.