THIRD SECTION

CASE OF SITNIKOV v. RUSSIA

(Application no. 14769/09)

JUDGMENT

STRASBOURG

2 May 2017

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Sitnikov v. Russia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
	Helena Jäderblom, President,
	Branko Lubarda,
	Luis López Guerra,
	Helen Keller,
	Dmitry Dedov,
	Pere Pastor Vilanova,
	Georgios A. Serghides, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 4 April 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 14769/09) 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 Nikolay Sergeyevich Sitnikov (“the applicant”), on 1 December 2008.
2.  The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.
3.  The applicant alleged that he had been subjected to ill-treatment by the police and that no effective investigation into his complaint had been carried out.
4.  On 9 December 2015 the application was communicated to the Government.
THE FACTS
Article I.	THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1988 and lives in the village of Trudobelikovskiy, Krasnodar region.
6.  At around midnight on 15 August 2007 the applicant, who was 19 years old at the time, and B. were taken in a police patrol car to the police station of the Syktyvdinskiy district of the Komi Republic for an examination of allegations of assault made against them by two individuals, in particular of the sexual assault of a woman. The police intervened immediately after the alleged assaults.
7.  According to the applicant, at the police station investigator N. demanded that he confess to the crime, and threatened him with ill‑treatment and rape in a cell at the pre-trial detention facility. The applicant refused to sign self-incriminating statements and was allegedly subjected to ill-treatment which he described as follows. He was taken to a cell where two policemen held his hands while a third policeman kicked him in the stomach leaving a boot print on his T‑shirt; the two policemen then threw the applicant to the floor, face down. Thereafter, the policemen took the applicant to N.’s office, where he signed a “statement of surrender and confession” (явка с повинной). He was then taken to the toilet by a policeman who started insulting him. When the applicant responded, the policeman allegedly sprayed gas in his eyes and hit him several times with a rubber truncheon. The policeman then pushed the applicant into the cell so that the applicant hit his head against the wall and fell to the ground.
8.  According to the police record drawn up by operative police officer K., the applicant signed the “statement of surrender and confession” at 2.35 a.m. on 16 August 2007.
9.  Investigator N. instituted criminal proceedings against him and B. and ordered a forensic medical examination of the applicant to establish, in view of the nature of the crime, whether the applicant had any pathology which would prevent him from performing sexual acts.
10.  The applicant was taken to a forensic medical expert who found that the applicant had the following physical injuries (examination report of 16 August 2007): (i) two abrasions on the left side of the forehead, measuring 2.5 cm by 0.7 cm and 0.7 cm by 0.5 cm; (ii) an abrasion on the bridge of the nose, measuring 4.5 cm by 1.5 cm; and (iii) a bruise around one eye, measuring 3 cm by 4 cm. The applicant explained to the expert that his injuries had been caused by the three police officers who had physically assaulted him at the police station in the night of 15 August 2007, in particular by hitting his face against the wall. The expert concluded that the bruise and abrasions on the applicant’s face could have been sustained in the circumstances and at the time alleged by the applicant.
11.  After the medical examination the applicant was taken back to the police station, where investigator N. told him that he must come back at 3 p.m. that day for questioning as a suspect and released him. His arrest was not recorded.
12.  On the same day the applicant complained to the Ministry of the Interior of the Republic of Komi that he had been ill-treated at the police station. He also asked the traumatology unit of the hospital in Syktyvkar to record his injuries. According to the hospital medical records, the applicant had the following injuries: (i) an acentric fracture of the nose; (ii) a bruise on the forehead; and (iii) abrasions on the forehead.
13.  On 17 August 2007 the applicant was arrested, questioned as a suspect and detained on remand by a court.
14.  On 20 August 2007 the applicant’s mother complained to the Syktyvdinskiy district prosecutor’s office that the applicant had been ill‑treated at the police station. In her complaint she stated, inter alia, that at around noon on 16 August 2007 the applicant had returned home from the police station with bruises and abrasions on his body, and a print from a large boot on his T-shirt in the area of his stomach. The applicant had told her that he had been ill-treated at the police station.
15.  On 29 August 2007 the prosecutor issued a refusal to open a criminal case against the law‑enforcement officers, finding, in accordance with Article 24 § 1 (2) of the Code of Criminal Procedure, that none of the elements of the crimes provided for in Articles 286 and 302 of the Criminal Code (on abuse of powers and forced confessions respectively) had been present in respect of the actions of investigator N. or police officers S.I., K.L., S.A., Sh., and K.N. The decision relied on the following statements.
16.  Investigator N. stated that he had interviewed the applicant after he had signed his “statement of surrender and confession”. The applicant had not complained of any physical violence against him. After the applicant’s forensic medical examination N. had talked to the applicant again and then released him. N. had not seen any injuries on the applicant, or a footprint on his T-shirt, during his interview or prior to his release from the police station. N. had heard about the applicant hitting his head against the wall later on from K.L. Investigator N. denied that the applicant had been put under any physical or psychological pressure.
17.  The police officers denied subjecting the applicant to any ill‑treatment. S.I. stated that he had learned from K.L. that the applicant had struck his head against the wall. K.L. stated that he had learned from duty officer S.A. about the applicant striking his head against the bars of a cell. S.A. and Sh. stated that they had seen the applicant bang his head repeatedly against the bars and then against the wall in a room of the duty officer. While banging his head against the wall the applicant was allegedly shouting that he would complain to the prosecutor’s office that police officers had beaten him up.
18.  The applicant’s mother challenged the refusal to open a criminal case against the police officers and investigator N. On 18 January 2008 the Syktyvdinskiy District Court dismissed her complaint.
19.  On 4 March 2008 the Supreme Court of the Komi Republic granted an appeal lodged by the applicant’s mother and quashed the District Court’s decision, noting that no assessment had been made of the contradiction between the medical expert’s conclusions and the police officers’ allegations of the applicant’s self-harm. Nor had the court assessed the applicant’s medical record concerning the nose fracture, the allegation of the applicant having been kicked and having a footprint from a boot on his T‑shirt, the presence of a video surveillance camera at the police station which should have recorded the incident, or statements by B. that he had heard the applicant screaming at the police station. The District Court had not taken into account circumstances which could have significantly influenced its conclusions and had not given reasons why, in so far as the conflicting evidence was concerned, it had given preference to some evidence whilst rejecting other. A fresh examination of the applicant’s mother’s appeal was ordered by a different composition of judges of the same court.
20.  On 21 March 2008 the Syktyvdinskiy District Court ruled that the refusal to open a criminal case of 29 August 2007 had been unjustified for reasons largely similar to those cited by the Supreme Court. The court ordered the investigation authorities to rectify those deficiencies.
21.  On 23 April 2008 the deputy prosecutor of the Komi Republic overruled the refusal of 29 August 2007 to open a criminal case.
22.  On 24 April 2008 the investigative committee of the prosecutor’s office of the Komi Republic issued a new refusal to open a criminal case against the police officers and investigator N., finding, in accordance with Article 24 § 1 (2) of the CCrP, that none of the elements of the crimes provided for in Articles 130, 286 and 302 of the Criminal Code (on insulting behaviour, abuse of powers and forced confessions respectively) were present in their actions. It was noted that, according to information received from the Syktyvdinskiy district police department, the video surveillance recordings of the room of the duty officer and the cells for administrative offenders for the period from 15 to 16 August 2007 had not been preserved. Such records were normally kept for three days and then automatically deleted. It was concluded that the applicant had caused injuries to himself at the police station with the purpose of avoiding criminal liability for the crime which he had committed.
23.  On 24 April 2008 the applicant was found guilty by the Syktyvdinskiy District Court.
24.  The applicant’s mother challenged the second refusal to open a criminal case against the police officers and investigator N.
25.  On 16 June 2008 the Syktyvdinskiy District Court dismissed her appeal. It examined the explanations given by the police officers and investigator N., and held that the allegations regarding the applicant’s ill‑treatment had not been substantiated. The court also noted that the allegation regarding the applicant’s forced confession had been examined during the applicant’s criminal trial and had been dismissed as unfounded in the judgment of 24 April 2008. The court further noted that the trial court had examined and endorsed the refusal of 24 April 2008 to open a criminal case against the police officers. Finally, the court concluded that the applicant’s allegations of ill-treatment had been designed to discredit the law‑enforcement authorities. On 18 July 2008 the Supreme Court of Komi upheld that decision on appeal.
26.  The judgment of 24 April 2008 in the applicant’s criminal case was subsequently quashed and remitted to the first-instance court for fresh examination. On 13 November 2008 the Syktyvdinskiy District Court convicted the applicant of sexual assault, specifially holding the victim to enable B. to sexually assault her, and sentenced him to four years and three months’ imprisonment. The applicant denied his guilt at trial, asserting that he had signed the “statement of surrender and confession” under physical pressure from the police officers and psychological pressure from investigator N. The trial court rejected the applicant’s arguments, relying on the refusal of 24 April 2008 to open a criminal case against the police officers and investigator N. The applicant’s “statement of surrender and confession” formed part of the evidence on which his conviction was based, and served as a mitigating circumstance. The applicant appealed against the judgment.
27.  On 16 January 2009 the Supreme Court of the Komi Republic upheld the judgment on appeal, stating that it was irrelevant to the criminal case against the applicant whether or not the refusal to open a criminal case into his allegations of ill-treatment had been unfounded.
THE LAW
Article II.	I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
28.  The applicant complained that after his arrest on suspicion of having committed the crime he had been ill-treated 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.”
29.  The Government maintained the results of the domestic inquiry and submitted that the applicant’s rights under Article 3 had not been violated.
Section 2.01	A.  Admissibility
30.  The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
Section 2.02	B.  Merits
31.  The relevant general principles were summarised by the Court’s Grand Chamber in the case of Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-88, ECHR 2015). In particular, 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. In the absence of such an explanation, the Court can draw inferences which may be unfavourable for the Government. That is justified by the fact that those in custody are in a vulnerable position and the authorities are under a duty to protect them (ibid., § 83).
(a)	1.  Credibility of the applicant’s allegations and presumption of fact
32.  The Court observes that the applicant spent about twelve hours in police custody without his arrest being recorded. Although he was not formally recognised as a suspect, the material before the Court leaves little doubt in respect of his actual status as a person arrested on suspicion of having committed a criminal offence and no other reason for holding him at the police station was suggested by the parties. During that time he was interviewed in relation to the crime which he was suspected of having committed. He signed a “statement of surrender and confession” (явка с повинной), which he retracted at the trial as having been given under coercion and which was nevertheless used as evidence for his conviction.
33.  At the end of the period spent in police custody the applicant was found to have sustained injuries. According to the forensic medical expert, the bruise and abrasions on the applicant’s face could have been sustained as a result of his alleged ill‑treatment by the police officers, in particular by his face being hit against the wall.
34.  The above factors are sufficient for a presumption in favour of the applicant’s account of events to arise, and to satisfy the Court that the applicant made credible allegations of ill-treatment in police custody.
35.  The fact that during the time of his alleged ill-treatment the applicant was held at the police station without his arrest being recorded and interviewed without being able to avail himself of access to a lawyer or of the other rights of a suspect in criminal proceedings attests to the applicant’s particular vulnerability vis-à-vis the law-enforcement officers. It weighs in favour of the applicant’s account of events and makes the presumption referred to in the previous paragraph stronger.
(b)	2.  Whether an effective investigation was carried out into the applicant’s allegations
36.  The Court observes next that the applicant’s allegations that his injuries were the result of police ill-treatment were dismissed by the domestic investigating authority, which declared that the injuries had been the result of the applicant’s self-harm. In so deciding it relied on the police officers’ and the investigator’s statements. The Court finds it problematic that decisive weight was given to the statements of those who had allegedly ill-treated the applicant. The Court notes that their account of the applicant’s self‑harm – namely that he banged his head repeatedly against the bars of a cell and then against the wall while shouting threats against the police officers – was not based on any medical opinion as regards either its probability or the number of traumatic impacts from which the injuries including the fracture of the nose might have originated. Nor was it based on an examination of the scene of the alleged incident. Furthermore, the crucial evidence – namely the video recording from the camera installed at the scene of the alleged incident – was never obtained and examined by the investigating authority and was lost. Finally, investigator N.’s statements denying signs of injury on the applicant – even though N. had seen the applicant immediately after the forensic medical expert had reported the visible injuries on the applicant’s face − were not subjected to any critical assessment on the part of the investigating authority. The deficiencies in the inquiry identified by the Komi Supreme Court (see paragraph 20 above) were never rectified and the refusal to open a criminal case based on that inquiry was upheld by the domestic courts and relied on as grounds for rejecting the applicant’s request to exclude his “statement of surrender and confession” from evidence at his trial.
37.  The Court observes further that the findings of the investigating authority were based on the results of the pre-investigation inquiry, that is to say the initial stage in dealing with a criminal complaint under Russian law, which should normally be followed by the opening of a criminal case and an investigation into whether or not the information gathered has disclosed the elements of a criminal offence (see Lyapin v. Russia, no. 46956/09, § 129, 24 July 2014).
38.  The Court reiterates its finding that merely carrying out 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 conduct a proper criminal investigation in which the whole range of investigative measures are carried out and which constitutes an effective remedy for victims of police ill-treatment under domestic law (see Lyapin, cited above, §§ 129 and 132-36; Razzakov v. Russia, no. 57519/09, §§ 57‑61, 5 February 2015; Gorshchuk v. Russia, no. 31316/09, §§ 35‑38, 6 October 2015; Turbylev v. Russia, no. 4722/09, §§ 67-72, 6 October 2015; and Fartushin v. Russia, no. 38887/09, §§ 44-45, 8 October 2015, in which the Government acknowledged a violation under the procedural aspect of Article 3).
39.  The Court has no reason to hold otherwise in the present case, which involves credible allegations of ill-treatment of which the authorities were promptly made aware. It finds that the investigating authorities have failed to carry out an effective investigation into the applicant’s allegations of the police ill-treatment, as required by Article 3 of the Convention.
(c)	3.  Whether the Government provided an explanation capable of casting doubt on the applicant’s version of events
40.  The Government supported the conclusions of the investigating authority, namely that the applicant’s injuries were not attributable to the conduct of the police officers and could have been sustained as a result of the applicant’s self-harm, in particular banging his head repeatedly against the bars of a cell and the wall at the police station.
41.  Given that such an explanation was based on evidence which does not stand up to criticism and was made as a result of the inquiry falling short of the requirements of Article 3 of the Convention, the Court is of the view that it cannot be considered satisfactory and convincing. It holds that the Government failed to discharge their burden of proof and produce evidence capable of casting doubt on the applicant’s account of events, which can therefore be assumed to have been established in relation to the allegations supported by the medical evidence.
(d)	4.  Legal classification of the treatment
42.  The Court finds that the acts of violence to which the applicant was subjected at the Syktyvdinskiy district police station on 16 August 2007 amounted to inhuman and degrading treatment.
(e)	5.  Conclusion
43.  There has accordingly been a violation of Article 3 of the Convention under its substantive and procedural limbs.
Article III.	II.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
44.  The applicant complained that the authorities had failed to carry out an effective investigation into his complaint of ill-treatment in police custody, thereby depriving him of effective domestic remedies. He relied on Article 13 of the Convention 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.”
45.  The Government contested that argument.
46.  The Court notes that this complaint is closely linked to the issue raised under the procedural aspect of Article 3 of the Convention and must therefore likewise be declared admissible.
47.  Having regard to the finding of a violation of Article 3 under its procedural aspect on account of the respondent State’s failure to carry out an effective investigation, the Court considers that it is not necessary to examine this complaint under Article 13.
Article IV.	III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
48.  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.”
Section 4.01	A.  Damage
49.  The applicant claimed 20,000 euros (EUR) in respect of non‑pecuniary damage.
50.  The Government contested the claim.
51.  The Court awards the applicant the amount claimed in respect of non-pecuniary damage.
Section 4.02	B.  Costs and expenses
52.  The applicant also claimed EUR 2,000 for the costs and expenses incurred before the Court, representing work by Mr Mezak on the preparation of the observations in reply to those by the Government after communication of the application.
53.  The Government noted that the claim should be examined in accordance with the Court’s case-law.
54.  The Court notes that Mr Mezak did not seek leave to represent the applicant after the notification of the case to the Government, in accordance with Rule 36 §§ 2 and 4 (a) of the Rules of Court. The Court therefore rejects the claim for costs and expenses.
Section 4.03	C.  Default interest
55.  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 is no need to examine separately the complaint under Article 13 of the Convention;

4.  Holds
(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 2 May 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Helena Jäderblom
	Registrar	President