CASE OF ALEKSANDR KONOVALOV 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 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)
Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova
5. The applicant was born in 1971 and is serving a prison sentence in Valuyki, the Belgorod region. 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 illtreated 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 illtreatment 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 selfincriminating statements, as well as the statements concerning his illtreatment 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 selfincriminating statements and statements concerning his alleged illtreatment 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 preinvestigation 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. 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 selfincriminating statements given by the applicant in the preliminary investigation, noting that his allegations of illtreatment 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.