THIRD SECTION

CASE OF KONDAKOV v. RUSSIA

(Application no. 31632/10)

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 Kondakov 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. 31632/10) 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 Vadim Sergeyevich Kondakov (“the applicant”), on 2 September 2010.
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, in particular, that he had been ill-treated in police custody and that no effective investigation had been carried out into his complaint.
4.  On 9 December 2015 the complaints concerning the applicant’s alleged ill-treatment were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1979 and is currently serving a prison sentence in Frolovo, Volgograd region.
6.  On 17 April 2009 Mr K. was found with very serious bodily injuries in the entrance to a block of flats. He died in hospital several days later.
7.  Between 7.15 a.m. and 8.55 a.m. on 18 April 2009 the scene of the incident was examined by investigator P. from the investigating unit of the Krasnoarmeyskiy district police department of Volgograd with the participation of attesting witnesses, police officers, and the applicant, who lived in the same block of flats. According to the record of the examination of the scene of the incident, the applicant stated that he had physically assaulted K. and described the circumstances of the crime committed by him against K. At around 9.30 a.m. the applicant was brought to the police station of the Krasnoarmeyskiy district of Volgograd (УВД по Красноармейскому району г. Волгограда), where operative police officers interviewed him about the circumstances of the crime.
8.  According to the applicant, they demanded that he give statements concerning the circumstances of the crime committed by him and subjected him to ill-treatment which the applicant described as follows. Having handcuffed him, they punched and kicked him, hitting him with a rubber truncheon and giving him electric shocks using a device called a “TP-50”. The applicant gave the statements as demanded.
9.  At 6 p.m. investigator Ye. of the investigating unit of the Krasnoarmeyskiy district police department of Volgograd initiated criminal proceedings against the applicant and his brother. At 8 p.m. the investigator drew up a record of the applicant’s arrest as a suspect and questioned him from 8.30 p.m. until 10 p.m. in the presence of D., a State-appointed lawyer invited by investigator Ye. The applicant repeated the statements incriminating himself and his brother and also stated that the previous evening he had been drunk and had fallen down a flight of stairs, and that he therefore had a headache and pain in the area of his ribs and kidneys.
10.  At 2.15 a.m. on 19 April 2009 the applicant was placed in a temporary detention facility (an “IVS”) at the Volgograd town police department. According to a document signed by a senior police transportation officer, the IVS duty officer and the applicant, the applicant had: (i) a haematoma on the left side of the body; (ii) a swelling on the left hip; and (iii) a swelling and redness on the right ear.
11.  On 20 April 2009 the Krasnoarmeyskiy District Court ordered his detention on remand. The applicant was taken to hospital no. 15. He complained of pain in his chest and in his left knee joint, and of generally feeling unwell. At the hospital he was diagnosed with contusion to the thoracic cage and left wrist, and his condition was assessed as not incompatible with being detained in a pre-trial detention facility.
12.  On 21 April 2009 the applicant was placed in pre-trial detention facility SIZO-4, where he was examined by the SIZO doctor who recorded multiple abrasions and haematomas on his trunk, and contusion to the thoracic cage and left wrist. The applicant was interviewed by the SIZO officer. He stated that he had received the injuries as a result of ill-treatment by police officers on 18 April 2009 whilst held at the Krasnoarmeyskiy district police department of Volgograd.
13.  The SIZO operative unit carried out an inquiry into the incident and concluded in a report of 22 April 2009 ‒ approved by the acting head of the SIZO ‒ that the applicant’s injuries had been inflicted by police officers from the Krasnoarmeyskiy district police department at about 11 a.m. on 18 April 2009 during the applicant’s interview.
14.  On 28 April 2009 the applicant was examined as an accused in the presence of lawyer D. The applicant stated that when examined as a suspect on 18 April 2009 he had given statements – concerning the origin of his injuries and also his brother’s involvement in the crime – as demanded by the police officers who had ill-treated him, as he had still been in physical pain and was under the influence of threats from them, as well as threats from investigator Ye. that he would find himself at the hands of those police officers again should he not give “correct” statements. The applicant described the circumstances of his alleged ill-treatment and retracted the statements he had given earlier incriminating his brother. The criminal proceedings against his brother were eventually discontinued for lack of evidence. The applicant reiterated his self-incriminating statements.
15.  On 29 April 2009 the Krasnoarmeyskiy district investigation division of the investigative committee at the Volgograd regional prosecutor’s office (“the Krasnoarmeyskiy district investigative committee”) received a communication from the SIZO concerning the applicant’s injuries.
16.  On 5 May 2009 a forensic medical examination of the applicant was carried out at the request of the investigator in charge of the criminal case against the applicant. The applicant stated to the medical expert that on 18 April 2009 he had been physically assaulted at the police station of the Krasnoarmejskiy district of Volgograd by police officers who had delivered many blows to his lumbar region, chest, shoulders, hips and ears, and had used a device called a “TP-50” to ill-treat him. He complained of pain in his chest. During the applicant’s forensic medical examination, the expert detected only one linear abrasion, measuring 23 mm by 2 mm, located within a bruise of indeterminate form on the left side of the applicant’s chest. The expert concluded that this injury had come about as a result of at least one (possibly tangential) impact by a hard, blunt object of limited surface area seven to nine days before the applicant’s examination, and had not caused him any “damage to his health ”.
17.  On 6 May 2009 investigator N. in charge of the inquiry into the applicant’s allegations of ill-treatment ordered an examination of the applicant’s medical records by the forensic medical expert . The investigator inquired whether the injuries could have been received as a result of the applicant falling down from his own height and hitting himself against “protruberant objects in the vicinity”. A forensic medical expert concluded in a report of 8 May 2009 that the applicant’s multiple abrasions and haematomas could have come about as a result of blows from hard, blunt objects or collisions with such objects and surfaces – including the applicant falling from his own height and colliding with curved objects. The expert further concluded that it was hard to establish the time at which the applicant’s injuries had been inflicted.
18.  Between 9 May 2009 and 16 June 2010 investigators from the Krasnoarmeyskiy district investigative committee issued eight refusals to initiate criminal proceedings into the applicant’s allegations of ill-treatment, finding, in accordance with Article 24 § 1 (2) of the Code of Criminal Procedure, that none of the elements of the offences provided for in Articles 285 and 286 of the Criminal Code (on abuse of powers) were present in respect of the police officers’ actions. Those refusals were overruled by the head or deputy head of the Krasnoarmeyskiy district investigative committee as being unlawful, and the investigators were ordered to carry out additional inquiries.
19.  On 10 September 2009 the Krasnoarmeyskiy District Court of Volgograd convicted the applicant of manslaughter and sentenced him to nine years and six months’ imprisonment. The applicant was ordered to pay 500,000 Russian roubles to the victim’s mother by way of compensation for non‑pecuniary damage. The applicant was found to have invited the victim to his flat, to have inflicted many injuries on him, then moving the victim to the landing of the stairwell near the applicant’s flat and leaving him there. The applicant pleaded guilty and his confession served as a mitigating factor. The court based its judgment on the applicant’s consistent confession statements, the results of the search carried out in his flat in which the victim’s passport and clothing had been found, and other evidence. The trial court found that the applicant’s injuries had been unrelated to the actions of the victim of the crime and had been sustained after the crime had been committed.
20.  According to the most recent decision of an investigator of the Krasnoarmeyskiy district investigative committee of 11 September 2010, the police officers in question denied subjecting the applicant to ill‑treatment. Investigator P. stated that during the examination of the scene of the incident on 18 April 2009 the applicant had confessed that he had committed the crime. According to police officers B., D. and M. ‒ as well as E., the head of the criminal investigating unit of the Krasnoarmeyskiy district police department ‒ the applicant had been brought to the police station on suspicion of having inflicted very serious bodily injuries on K. At some point the applicant had been taken from a cell to E.’s office. The police officers had inteviewed the applicant and established the circumstances of the crime against K. According to B., the applicant had complained of pain in his chest, explaining that he had fallen down a flight of stairs.  The applicant’s mother stated that on 16 April 2009 she had seen the applicant without any sign of physical injury.
21.  In his decision of 11 September 2010 the investigator noted that, while being questioned as a suspect on 18 April 2009, the applicant had explained that he had fallen down a flight of stairs the day before as a result of being in an inebriated state. The investigator further noted that the applicant’s forensic medical examination results indicated that the applicant’s multiple abrasions and haematomas could have come about as a result of blows from hard, blunt objects or collisions with such objects or surfaces – including the applicant falling from his own height. The investigator concluded that none of the constituent elements of the alleged crimes had been present in the conduct of the police officers and refused to institute criminal proceedings under Article 24 § 1 (2) of the Code of Criminal Procedure.
22.  On 2 March 2010 the Volgograd Regional Court upheld the judgment in the applicant’s criminal case on appeal.
THE LAW
Article II.	I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
23.  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.”
24.  The Government maintained the conclusions of the domestic investigating authority and submitted that there had been no violation of the applicant’s rights under Article 3.
Section 2.01	A.  Admissibility
25.  The Court notes that this complaint 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
26.  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
27.  The Court observes that the applicant spent more than eight 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 (in particular, the applicant’s confession statements given before being taken to the police station and the police officers’ statements, see paragraphs 7 and 20 above), 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 to have committed and gave incriminating statements against his brother, which he later retracted as having been given under coercion.
28.  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 applicant’s multiple abrasions and haematomas could have come about as a result of blows from hard, blunt objects or collisions with such objects. They could therefore arguably have been a result of his alleged ill‑treatment by the police officers, in particular by his being punched, kicked and hit with a rubber truncheon.
29.  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 his ill-treatment in police custody.
30.  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 any of the other rights of a suspect in criminal proceedings attests to the applicant’s particular vulnerability vis-à-vis the police 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
31.  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 particular falling down a flight of stairs before his arrest. In so deciding, it relied on the applicant’s statement to that effect given during his examination as a suspect after his alleged ill‑treatment on 18 April 2009 and on the police officers’ statements denying the applicant’s ill‑treatment. The Court finds it problematic that the investigating authority disregarded the fact that the applicant had retracted the above statement as having been given under coercion (see paragraph 14 above), and that decisive weight was given to the statements of the police officers who had allegedly ill-treated the applicant. Furthermore, the applicant was not examined by the forensic medical expert until more than two weeks after the alleged ill-treatment, by which time most of the traces of that alleged ill-treatment had disappeared. The forensic medical expert was not asked to assess the possibility of the injuries being the result of a single fall down a flight of stairs and the scene of the alleged incident was never examined.
32.  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 the Russian law which should normally be followed by the opening of a criminal case and carrying out an investigation if the information gathered has disclosed elements of a criminal offence (Lyapin v. Russia, no. 46956/09, § 129, 24 July 2014).
33.  The Court reiterates its finding that the mere carrying out of 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).
34.  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
35.  The Government supported the conclusions of the investigating authorities to the effect 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 falling down a flight of stairs before his arrest.
36.  Given that such 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 (see paragraph 28 above).
(d)	4.  Legal classification of the treatment
37.  The Court finds that the acts of violence to which the applicant was subjected at the Krasnoarmeyskiy district police station of Volgograd on 18 April 2009 amounted to inhuman and degrading treatment.
(e)	5.  Conclusion
38.  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
39.  The applicant complained under Article 13 of the Convention in conjunction with Article 3 of the Convention that the State had failed to conduct an effective investigation into his allegations of police ill-treatment, and that he had had no effective domestic remedy. Article 13 of the Convention 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.”
40.  The Government contested that argument.
41.  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.
42.  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
43.  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
44.  The applicant claimed 110,000 euros (EUR) in respect of non‑pecuniary damage.
45.  The Government noted that any award should be made in compliance with the case-law.
46.  The Court awards the applicant EUR 20,000 in respect of non‑pecuniary damage.
Section 4.02	B.  Default interest
47.  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