I correctly predicted that there was a violation of human rights in PISKUNOVY v. RUSSIA.

Information

• Judgment date: 2009-06-09
• Communication date: 2017-05-15
• Application number(s): 13123/16
• Country:   RUS
• Relevant ECHR article(s): 3, 5, 5-1-c, 13
• Conclusion:
  Violation of Art. 10
  Pecuniary damage - award
  Non-pecuniary damage - claim dismissed
• Result: Violation
SEE FINAL JUDGMENT

JURI Prediction

• Probability: 0.770357
• Prediction: Violation

• Consistent

Communication text used for prediction

The applicants, Mr Vyacheslav Nikolayevich Piskunov and Mr Gennadiy Nikolayevich Piskunov, are Russian nationals who were born in 1973 and lived in Saransk, Mordovia Republic before their conviction.
They are represented before the Court by Ms D. Pigoleva, a lawyer practising in Moscow.
A.
The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows.
1.
The applicants’ arrest and alleged ill-treatment in police custody 1.
At around 10.30 a.m. on 23 June 2013 the applicants were drinking in a garage with D., G., K., B. and two or three others when three police officers arrived and asked them to accompany them without offering any explanation.
They were taken to Saransk police headquarters and placed in separate rooms.
2.
The first applicant was seated on a chair in the middle of the room and handcuffed.
When he asked why he had been handcuffed, police officer Ch.
kicked him in the groin and squeezed his testicles.
He then asked him whether he knew anything.
The applicant said no, and the police officer kicked him in the groin with his right leg at least five times.
3.
During the interrogation two other police officers were present, S. and R. After Ch.
had kicked the applicant, one of them hit his chair, causing him to fall to the floor.
He then got up on his knees.
Police officer Ch.
put a plastic bag over his head and tied it around his neck.
When the applicant started to suffocate and faint Ch.
pulled the bag away and asked him why he and his brother had killed B.
The applicant asked who B. was; the police officer put the plastic bag back over his head and retied it.
Someone then started to hit the applicant in the kidneys with a heavy item, allegedly a full plastic one-and-a-half litre water bottle.
He was hit at least twenty times.
The police officers asked the applicant in turn when and why he and his brother had beaten up B.
The applicant answered that he had no idea who B. was.
Police officer Ch.
then tied a canvas belt around the applicant’s knee, pulled it over his neck and stretched it, forcing his head to his knees.
Another police officer hit him with a heavy item in the kidneys at least ten times, causing him to faint.
4.
When the applicant regained consciousness he was alone.
Police officers Ch., S. and R. entered the room and took him to a yard where he saw his brother, the second applicant.
5.
After his arrest the second applicant was interrogated by police officers R. and S., who tried to make him confess to beating B. to death.
The applicant refused.
Police officer R. handcuffed him and made him kneel; he then lifted his hands up and kicked him all over at least seven times.
The applicant was in severe pain and agreed to confess.
6.
The second applicant was then taken out of the room to the yard.
The police officers drove him home and seized his and his brother’s trousers.
As he was walking out of the house he saw his neighbour, Zh.
She asked him what had happened.
He replied that he had been beaten up badly and forced to confess to murder.
He then asked her to inform his relatives of his arrest.
7.
The police officers drove the second applicant back to the police headquarters.
He and his brother were then taken to Saransk police station no.
1.
During the journey the police officers kept asking whether they knew B. who had been beaten to death.
Police officer Ch.
told the applicants to tell them what had happened but they insisted that they had not been party to the events.
8.
At 9 p.m. an on-duty police officer of police station no.
1 drew up records of the applicants’ administrative arrest, stating that the applicants had been escorted to the police station at 9 p.m. on 23 June 2013 for breach of public order in an inebriated state, an offence punishable under Article 20.1 § 1 of the Code of Administrative Offences.
It was also stated in the records that the applicants had no visible injuries and that they had been released at 9.40 a.m. the next day when they were sober.
9.
The applicants were placed in cells for administrative detainees (камеры для административно-задержанных).
The first applicant discovered that his left testicle was swollen and his groin covered in numerous bruises.
He asked the police officer on duty to call an ambulance, but to no avail.
That night he felt severe pain in his testicles.
10.
On the morning of 24 June 2013 police officers Ch., S. and R. went to see the applicants.
They threatened them with assault if they refused to confess to beating up B.
The first applicant asked to be taken to hospital, but the police officers repeated their demands.
Fearing assault, the applicants agreed to sign statements of “surrender and confession” (явка с повинной).
According to the applicants, they signed some documents, either “explanations” containing their self-incriminating statements or statements of “surrender and confession”.
11.
The police officers then took the applicants to the investigation unit and introduced them to their State-appointed lawyers, F. and U.
The investigator gave both applicants a pre-printed statement of “surrender and confession” and a record of their questioning as a suspect describing B.’s assault.
The applicants signed the documents in the presence of police officer Ch.
and the lawyers.
According to the first applicant, he informed lawyer F. that he had been ill-treated by police officers.
12.
At 4.55 p.m. and 6.35 p.m. the investigator drew up the records of the applicants’ arrest on suspicion of inflicting grievous bodily harm resulting in death.
The first applicant was then taken to hospital and examined by a doctor.
He explained that he had had a routine accident, as police officer Ch.
was present at the examination.
Later that day both applicants were placed in a temporary detention facility (IVS).
13.
On 25 June 2013 the applicants were escorted to the crime scene for an on-site verification of their statements.
They showed how they had beaten up B. with the help of a dummy and repeated their self-incriminating statements.
As they were being escorted from the detention facility to the crime scene police officer Ch.
told them not to complain about their treatment in custody.
Later that day the applicants were examined by a forensic medical expert.
14.
On 26 June 2013 the Oktyabrskiy District Court of Saransk remanded the applicants in custody.
2.
The applicants’ injuries allegedly received as a result of ill‐treatment 15.
According to the IVS records, on 24 June 2013 the applicants were examined by an on-duty officer.
He noted that the first applicant had a closed injury of the scrotum on the left side and a ruptured left testicle.
The first applicant gave no explanation as to the origin of these injuries.
The second applicant was not recorded as having any injuries.
16.
At 2 p.m. on 25 June 2013 the police officers escorted the first applicant to Polyclinic No.
3.
According to medical record no.
8607, he remained there until 26 June 2013.
He complained of pain and enlargement in his scrotum on the left side and fever.
He was diagnosed with the following injuries: (i) a closed injury of the scrotum on the left side; (ii) a ruptured left testicle; and (iii) a haematocele on the left side.
He underwent scrotal surgery (скрототомия), ruptured testicle closure and scrotum drainage.
On 26 June 2013 the hospital doctor discharged him because of the need to conduct investigative measures.
17.
On 25 June 2013 the applicants were examined by a forensic medical expert from the Saransk Forensic Medical Bureau, Dr T. According to report no.
1032 completed on 2 July 2013, the first applicant had the following injuries: (i) a bruise measuring 3 by 2.8 centimetres on the breastbone; (ii) a bruise measuring 2 by 1.8 centimetres on the right shoulder; (iii) an abrasion measuring 6 by 4 centimetres in the loins; (iv) a bruise measuring 10 by 12 centimetres on the left hip; and (v) abrasions measuring 7 by 5 centimetres on the right shin and 6 by 4 centimetres on the left shin.
The expert concluded that the first applicant’s injuries had been caused no more than twelve to six days prior to the examination by repeated impact with a hard, blunt object.
18.
According to report no.
1033 issued by Dr T. on 2 July 2013, the second applicant had the following injuries: (i) a bruise measuring 3 by 2.8 centimetres in the left of the groin, and (ii) an abrasion measuring 4 by 2.8 centimetres on the right shin.
The expert concluded that the injuries had been caused no more than six to two days prior to the examination.
19.
Between 22 and 25 October 2013 the same expert carried out a further forensic medical examination of the first applicant in his absence, which comprised of an analysis of his hospital medical records.
According to report no.
1132 (M), the applicant had a ruptured left testicle with a haematocele on the left side, which could have been caused by a hard, blunt object on 23 June 2013.
20.
On 14 January 2014 Dr T. issued a supplement to report no.
1132 (M), forensic medical expert report no.
2 (D).
The examination was carried out in the absence of the first applicant on the basis of an investigator’s order dated 9 January 2014.
The expert reached similar conclusions to those in the previous report, adding that the first applicant’s injuries could not have been caused by his falling from a distance equal to his own height onto a hard surface.
21.
From 24 to 29 April 2014 Dr T. carried out a further forensic examination of the first applicant.
Report no.
512 (MD) incorporated all of his injuries, specifying that he had had: (i) a ruptured left testicle with a haematocele on the left side; (ii) a bruise on the breastbone; (iii) a bruise on the right shoulder; (iv) a bruise on the left hip; and (v) abrasions on both shins.
These injuries could have been caused by impact with a hard, blunt object at least six times.
They could not have been caused by his falling from a distance equal to his own height onto a hard surface.
The expert established no causal link between the diagnosis of “closed injury of the scrotum” and the circumstances of the case.
22.
On 5 May 2014 Dr T. carried out a further forensic medical examination of the second applicant in his absence, on the basis of an investigator’s order dated 23 April 2014.
The expert reached similar conclusions to those in report no.
1033, adding that that the second applicant’s injuries could have been caused on 23 June 2013 by a hard, blunt object.
Dr T. did not exclude the possibility that the injuries could have been caused by his falling from a distance equal to his own height onto a hard surface.
23.
On 9 August 2014 Dr T. issued a supplement to report no.
512 (MD), forensic medical expert report no.
126 (D).
It was carried out in the absence of the first applicant on the basis of an investigator’s order dated 18 July 2014.
The expert reached similar conclusions to those in the previous report, though she did not exclude the possibility that the injuries mentioned could have been caused by the applicant’s falling from a distance equal to his own height onto protruding hard, blunt objects.
24.
From 20 October to 26 November 2014 a group of five doctors carried out a detailed forensic examination of the first applicant on the basis of his medical records and previous forensic medical expert reports.
In report no.
409, they made the following conclusions: (a) in 1999 he had been diagnosed with a “closed injury of the scrotum, a ruptured right testicle” and had undergone medical treatment in hospital; this injury had no causal link with the events of 23 June 2013 and could not have affected his injuries; (b) the ruptured left testicle with a haematocele on the left side was an injury, the pain reaction to which varied from individual to individual; it might have caused walking difficulties; (c) the ruptured left testicle could have been caused by direct impact with an object or his striking a protruding object while falling; it had been caused no more than three days before 25 June 2013 and could be classed as “medium health damage”; (d) the bruises and abrasions described by Dr T. in report no.
1032 of 2 July 2013 had not caused any lasting health damage.
3.
Pre-investigation inquiry and refusal to institute criminal proceedings 25.
On 23 September 2013 during the trial the applicants retracted their self-incriminating statements, alleging that they had been pressured into confessing by police officers.
On the same date the Oktyabrskiy District Court of Saransk ordered that a pre-investigation inquiry be carried out into the applicants’ allegations.
26.
During 2013 and 2014 investigators of the Leninskiy District Investigative Committee of Saransk carried out an inquiry and, pursuant to Article 24 § 1 (2) of the Code of Criminal Procedure (“CCrP”), issued three refusals to open a criminal case on the grounds that the constituent elements of a crime under Articles 286 (abuse of powers with use of violence) and 302 (forced extraction of confession) of the Criminal Code had not been made out.
In doing so they relied on the police officers’ explanations denying any wrongdoing, doctors’ statements, medical records and reports.
27.
According to the police officers’ explanations received during the inquiry, on 23 June 2013 they had taken the applicants to the police station for a “conversation”.
According to operative information, they had inflicted grievous bodily harm resulting in the victim’s death.
The applicants had been interviewed about the circumstances of the crime for twenty-five minutes.
They had given explanations concerning their involvement in the incident resulting in B.’s death.
The first applicant had complained of a groin injury before his arrest and had walked with a limp.
He had repeated his complaints on 24 June 2013 during the investigative measures.
He had been taken to hospital the same day and refused hospitalisation.
The next day, after the on-site verification of the applicants’ statements, the first applicant had been taken to hospital again.
He had explained that he had had a routine accident.
He had been operated on and discharged on 26 June 2013.
The second applicant had not complained of any injuries.
No threats had been made or physical force used against the applicants either after their arrest, during their questioning as suspects or during the on-site verification of their statements.
28.
During their interviews, the doctors confirmed the first applicant’s injuries as described in the hospital medical records (see paragraph 16 above).
29.
Throughout the pre-investigation inquiry the applicants repeated their allegations of ill-treatment.
The first applicant pointed out that he had not complained of ill-treatment to the judge who had remanded him in custody as he had been afraid of the police officers.
During his pre-trial detention Ch.
and another police officer ranking major had visited him at least seven times.
They had warned him not to change his initial statements.
The second applicant explained that he had not said anything about his treatment to the on-duty officer in the IVS as he had been afraid of the repercussions.
30.
K., one of the friends who had been drinking with the applicants on 23 June 2013 testified that the first applicant had not complained of any injuries that day.
He had not seen him walking with a limp either.
31.
The applicants’ neighbour Zh.
stated that she had seen the second applicant on 23 June 2013 leaving the house with some police officers (see paragraph 6 above).
She had not noticed any injuries on his body, though he had been walking with a limp.
She had called the applicant’s relatives at his request and had notified them of his arrest.
32.
All the investigators’ decisions refusing to open a criminal case were overruled by their superiors, on the grounds that they had been unsubstantiated and based on an incomplete inquiry.
33.
The most recent refusal to open a criminal case dated 26 February 2014 was similar to the previous decisions and contained no new elements.
The investigator concluded that the first applicant’s groin injuries had been caused by his falling on the street, as the latter had stated in hospital.
Neither applicant had complained of unlawfulness on the part of police officers during the investigation of the criminal case.
The investigator found that no information obtained during the inquiry proved that the applicants had ever been threatened and that they had given their statements voluntarily.
4.
Criminal proceedings against the police officers (a) Institution of criminal proceedings as regards the first applicant’s injuries 34.
On an unspecified date the prosecutor of the Leninskiy District of Saransk overruled the refusal to open a criminal case of 26 February 2014 as unfounded.
35.
On 2 April 2014 the investigator of the Leninskiy District Investigative Committee of Saransk opened criminal proceedings against the police officers.
He noted that the first applicant’s allegations about the origin of his injuries required examination in a preliminary investigation.
He concluded that there was sufficient information to suggest that a crime under Article 286 § 3 (a) of the Criminal Code had been committed by unidentified police officers.
36.
On 23 April 2014 the first applicant was granted victim status in the criminal proceedings.
During his interrogation he repeated his allegations of ill-treatment by police officers Ch., S. and R. 37.
The second applicant was interrogated as a witness the same day.
He repeated his allegations of ill-treatment by police officer R. on 23 June 2013.
He also testified that he had seen police officer Ch.
raise his hand to the first applicant who had been kneeling down with a plastic bag over his head.
38.
On 25 April 2014 an on-site verification of the second applicant’s statements took place.
He was taken back to room no.
223 in Saransk police headquarters where he had allegedly been ill-treated.
During the verification the second applicant demonstrated how he had been kicked by the police officers.
He also pointed to the door of the room opposite, saying that it had been open on 23 June 2013 and he had seen the first applicant being ill‐treated by Ch.
39.
A crime reconstruction took place in the Mordovia Republic Forensic Medical Bureau the same day.
The first applicant demonstrated how he had been injured and described how he had been ill-treated by officer Ch.
After the reconstruction the investigator ordered an expert opinion to ascertain whether the first applicant’s injury, namely a ruptured left testicle with a haematocele, could have been caused in the circumstances described by him (ситуационная экспертиза).
40.
According to expert report no.
MK-64 of 14 May 2014, the first applicant’s injury, namely a ruptured left testicle possibly caused on 23 June 2013, could have been caused by a kick in the groin as demonstrated by the first applicant during the crime reconstruction.
41.
On 5 October 2014 the investigator ordered an additional expert opinion to ascertain whether the first applicant’s injuries, namely a bruise on the left hip and abrasions on the right and left shins could have been caused in the circumstances described by him (ситуационная экспертиза).
42.
According to expert report no.MK-130 of 27 October 2014, the bruise on the left hip could have been caused by blows to the inner part of the hips by the heel of the shoe worn by officer Ch.
The expert could not say with certainty whether the abrasions on the first applicant’s right and left shins could have been caused by his being tied with a canvas belt.
(b) Institution of criminal proceedings as regards the second applicant’s injuries 43.
On 26 September 2014 an investigator of the Investigation Department of the Mordovia Republic opened criminal proceedings against the police officers.
He noted that during the investigation of the criminal case concerning the first applicant’s injuries it had been discovered that the second applicant had had an abrasion on the right shin possibly caused on 23 June 2013.
He concluded that there was sufficient information to suggest that a crime under Article 286 § 3 (a) of the Criminal Code had been committed by unidentified police officers.
44.
By a decision of 26 September 2014 the criminal cases concerning both applicants’ allegations of ill-treatment were joined.
45.
On 16 October 2014 the second applicant was granted victim status in the criminal proceedings.
46.
He was interrogated the same day.
He repeated the testimony he had given during his interrogation as a witness on 23 April 2014.
(c) Suspension of criminal proceedings 47.
On 2 March 2015 the criminal proceedings were suspended pursuant to Articles 24 § 1 (2) and 212 § 1 of the CCrP for lack of the constituent elements of the crimes in the police officers’ actions.
(d) Judicial review of the investigators’ decisions under Article 125 of the Code of Criminal Procedure 48.
The applicants lodged judicial review complaints about the investigator’s decision of 2 March 2015.
On 1 June 2015 the Leninskiy District Court of Saransk dismissed their complaints, holding that the decision was lawful and well-founded.
49.
The applicants appealed to the Supreme Court of the Mordovia Republic.
On 24 August 2015 it dismissed their appeals, fully endorsing the first-instance court’s decision.
5.
Criminal proceedings against the applicants 50.
On 28 January 2014 the Oktyabrskiy District Court of Saransk convicted the applicants of inflicting grievous bodily harm resulting in death and sentenced them both to eight years’ imprisonment.
51.
At the trial the applicants pleaded not guilty and submitted that they had signed their confession statements under physical and psychological duress.
52.
The trial court dismissed the applicants’ allegations of ill-treatment by the police officers as unconfirmed.
The court relied on the testimony of police officers R. and S. and investigator L., who testified that the applicants had confessed voluntarily during the “conversation”.
The court also referred to the investigator’s refusal of 10 January 2014 to open a criminal case against police officers (subsequently overruled).
It noted, inter alia, that the applicants had been questioned on 24 June 2013 in the presence of counsel; before questioning they had been informed of their privilege against self-incrimination (under Article 51 of Russian Constitution).
The applicants had signed the records of questioning without making any remarks.
53.
On 14 May 2014 the Supreme Court of the Mordovia Republic upheld that judgment on appeal.
It dismissed the applicants’ allegations that the statements of surrender and confession, confession statements and records of the on-site verification of their statements had been obtained under duress.
The appellate court referred to the first-instance court’s findings in this respect.
It also noted that the refusal of 10 January 2014 had been overruled and a criminal investigation into the first applicant’s ill‐treatment opened.
Nevertheless, these circumstances, in the appellate court’s view, were not sufficient to find the above-mentioned records and statements inadmissible.
The court dismissed the applicants’ appeals and ordered that reference to the refusal to open a criminal case against the police officers of 10 January 2014 be excluded from the judgment.
B.
Relevant domestic law 54.
For a general summary of the relevant domestic law, see Lyapin v. Russia (no.
46956/09, §§ 96-101, 24 July 2014).
55.
Article 125 of the Code of Criminal Procedure provides that anyone whose legitimate rights and interests are likely to be violated by a decision taken by (as well as actions undertaken by or inaction on the part of) an inquiry officer, investigator or head of an investigation unit may lodge a judicial review complaint against the decision, actions or inaction.
The court will examine the lawfulness and reasonableness of the decision, actions or inaction and either: (i) declare the impugned decision, actions or inaction unlawful or unfounded and order the authority concerned to rectify the breach; or (ii) dismiss the complaint.
56.
The relevant parts of Article 144 of the Code of Criminal Procedure, as amended by Federal Law no.
23-FZ of 4 March 2013, read as follows: Article 144.
Procedure for examining a report of a crime “1.
[A pre-investigation] inquiry officer, [an] agency [responsible for such inquiries], [an] investigator, or [a] head of an investigation unit shall accept and examine every report of a crime ... and shall take a decision on that report ... no later than three days after [receiving] the report ... [They have] the right to receive explanations, samples for comparative examination, request documents and objects, seize them ..., order forensic examinations, participate in the carrying out [of such examinations] and receive an expert’s report within a reasonable time, carry out an inspection of a crime scene, documents, objects, [and/or] dead bodies, physical examination, request documentary inspections, revisions, examination of documents, objects, dead bodies, engage specialists in carrying out these measures, give an inquiry agency mandatory written instructions on carrying out operative and investigative measures ... ... 3.
A head of an investigation unit or head of an [pre-investigation] inquiry agency ... may extend the time period specified in paragraph (1) of this Article to [a maximum of] ten days.
Where documentary inspections, revisions, forensic examinations, examination of documents, objects or dead bodies, as well as operative and investigative measures are to be performed, a head of an investigation unit ... or a prosecutor ... may extend this period [to a maximum of] thirty days ...” 57.
Section VIII of the Code of Criminal Procedure, which regulates preliminary investigations, provides, inter alia, (after amendments by Federal Law no.
23-FZ of 4 March 2013) that such investigative measures as an inspection of a crime scene, documents and/or objects, a forensic examination and receipt of samples for a comparative examination may be ordered and/or carried out, where applicable, before a criminal case is opened (Articles 176 § 2, 195 § 4 and 202 § 1 of the Code).
58.
Article 286 § 3 of the Criminal Code provides that the actions of a public official which clearly exceed his authority and entail a substantial violation of an individual’s legitimate rights and interests, committed with violence or the threat of violence (Article 286 § 3 (a)) is punishable by three to ten years’ imprisonment, with a ban on holding certain posts or engaging in certain activities for up to three years.
COMPLAINTS The applicants complain under Article 5 of the Convention that they were unlawfully detained in police custody for more than a maximum time‐limit of 48 hours.
The applicants complain under Article 3 of the Convention that they were subjected to torture and ill-treatment by police officers in order to obtain their confessions and that the State failed to conduct an effective investigation into the incidents.
The applicants also complain under Article 13 of the Convention of a lack of effective domestic remedies against their alleged ill-treatment.