FIRST SECTION. Application no /10. against Russia lodged on 7 August 2010 STATEMENT OF FACTS

Transcription

1 FIRST SECTION Application no /10 by Aleksandr Nikolayevich MILOVANOV against Russia lodged on 7 August 2010 STATEMENT OF FACTS THE FACTS The applicant, Mr Aleksandr Nikolayevich Milovanov, is a Russian national who was born in 1982 and lives in Balakhna, the Nizhniy Novgorod Region. He is represented before the Court by the Committee Against Torture, a non-governmental organisation based in Nizhniy Novgorod. The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1. The applicant s arrest and alleged ill-treatment On 18 June 2008 the officers of the Sarov Department of the Federal Drugs Control Service of the Nizhniy Novgorod Region ( the Drugs Control Service ) arrested the applicant on suspicion of drug trafficking. The officers handcuffed him, hit and kicked him in the head, body and legs. They searched the applicant and found no drugs on him. Then one of the officers allegedly planted a sachet with drugs into his pocket. The applicant attempted to resist, and the officer hit him in the chest and groin. Then he was taken to a car and at p.m. brought to the Drugs Control Service office.

2 2 MILOVANOV v. RUSSIA STATEMENT OF FACTS AND QUESTIONS The officers searched him at the Drugs Control Service premises and took the sachet out of his pockets, allegedly in the presence of seven persons: two women and five men. Then the officers demanded him to sign unspecified documents. When he refused to obey, an officer handcuffed him again, and he was subjected to various forms of ill-treatment. In particular, he was beaten up, electric shocks were applied to various parts of his body, he was strapped and beaten on the heels and body with a baseball bat. At some point he lost consciousness. At 4 a.m. on 19 June 2008 he agreed to sign a confession. Then the officers left him in the office handcuffed to a radiator, without food or water. At 4 p.m. on 19 June 2008 the applicant was questioned by the Drugs Control officers and subsequently by Z., a Federal Security Service officer. He signed several documents, allegedly without having read them (see below). At some point on the same date the applicant was brought to the Sarov Department of the Federal Security Service and interviewed by Z. about the circumstances of the alleged ill-treatment. The applicant signed the interview record, allegedly without having read it. At about 10 p.m. on the same date he was transferred to the temporary detention cell of the Sarov Department of Interior (the IVS). The applicant submits that his relatives were not informed of his arrest. On 21 June 2008 the applicant s brother learned about the apprehension from the applicant s friends. 2. The applicant s injuries On 19 June 2008 the applicant was examined by the IVS doctor who established that he had bruises on his back and posterior surface of the hips on arrival to the detention facility. The applicant complained of severe pain and told the doctor that he had been ill-treated by the Drugs Control officers. The examination was allegedly video-recorded. On 20 June 2008 the IVS officers called the ambulance for the applicant. According to the medical certificate of 20 June 2008 by the ambulance doctors, there were multiple bruises and abrasions on his back, chest and hips. On 9 April 2009 a forensic medical examination of the applicant was held on the basis of the available medical documents. The experts confirmed that he had multiple bruises on his body and abrasions of the chest which could have been caused by blunt objects. The expert did not exclude that the injuries could have been inflicted on June Inquiry into the allegations of ill-treatment On 20 June 2008 the applicant complained about the ill-treatment to the prosecutor s office of the Restricted Territorial Entity of Sarov. It appears that at some point the applicant s mother further complained to the authorities about moral pressure on the applicant and forgery of evidence by the officers of the Federal Security Service.

3 MILOVANOV v. RUSSIA STATEMENT OF FACTS AND QUESTIONS 3 (a) Initial inquiry by the Sarov Investigation Department On 24 June 2008 the Sarov prosecutor s office forwarded the complaint to the Investigation Department of the Restricted Territorial Entity of Sarov of the Investigative Committee of the Prosecutor s Office of the Russian Federation ( the Sarov Investigation Department ). An investigator of the Sarov Investigative Department held an inquiry. In particular, he studied the apprehension record, as well as the record of the applicant s medical examination, his detailed account of the ill-treatment and the IVS medical records. On 30 June 2008 he interviewed K. and V., two Drugs Control officers who participated in the arrest together with Sch., their colleague. They denied the allegations of ill-treatment. On 3 July 2008 the applicant was questionned by an investigator of the Drugs Control Service. According to the interview record, the applicant did not have further claims against the Service officers and wished to withdraw his complaint. The investigator forwarded the interview record to the Sarov Investigation Department. The applicant submits that he had to withdraw the complaint under pressure by the unspecified Drugs Control Service officials. On 3 July 2008 the Sarov Investigation Department found no evidence of ill-treatment during the applicant s arrest and interrogation and refused to open criminal proceedings upon the respective complaint. The decision referred to the statements of V. and K. and the applicant s withdrawal of the complaint. The applicant appealed against the decision to the Sarov Town Court under Article 125 of the Code of Criminal Procedure. At some point in July 2008 he complained about the ill-treatment to the prosecutor s office of the Nizhniy Novgorod Region. On 28 July 2008 his petition was forwarded to the Investigation Department of the Nizhniy Novgorod Region and subsequently to the Sarov Investigation Department. On 11 August 2008 the Sarov Investigation Department informed the applicant that his complaint did not contain new facts and could not be regarded as a basis for an additional inquiry. On 1 September 2008 the applicant filed a request for a seizure of the IVS video recording with the prosecutor s office of the Nizhniy Novgorod Region. The petition was forwarded to the prosecutor s office of Sarov and subsequently to the Sarov Investigation Department. On 25 September 2008 the Sarov Investigation Department informed the applicant that the recording had been destroyed. On 15 September 2008 the head of the Sarov Investigation Department quashed the decision of 3 July 2008 and ordered an additional inquiry into the allegations of ill-treatment. On 16 September 2008 the Sarov Town Court disallowed the applicant s appeal against the decision of 3 July 2008 because it had been annulled in the meantime (as upheld on appeal on 5 December 2008 by the Nizhniy Novgorod Regional Court). At some point between 15 and 29 September 2008 an additional inquiry into the applicant s allegations was conducted. The investigator of the Sarov Investigation Department interviewed S., the head of the Sarov Department of the Federal Drugs Control Service who submitted that on 18 June 2008 the officers of the Drugs Control Service and the Federal Security Service

4 4 MILOVANOV v. RUSSIA STATEMENT OF FACTS AND QUESTIONS had arrested the applicant on suspicion of possession and transportation of drugs. He had eye-witnessed the applicant s arrest. The officers had used physical force against the applicant only when he had attempted to escape. They had acted in compliance with the Police Act. On 20 June 2008 he and V., Drugs Control officer, had visited the applicant in the IVS. They had not exercised any physical or moral pressure on him. The investigator further interviewed A., an assistant prosecutor of the Sarov prosecutor s office. He submitted that on 19 June 2008 he had visited the applicant in the IVS and the latter had not raised any complaints. Then on several occasions he had visited the applicant who had confirmed his intention to withdraw the complaint. On 29 September 2008 the Sarov Investigation Department again refused to bring criminal proceedings against the Drugs Control officers, having found that they had legitimately used force and handcuffed the applicant because he had attempted to escape. (b) First transfer of the case to the Military Investigation Department On 29 September 2008 by the same decision (see above) the investigator of the Sarov Investigation Department established that Z. was a Federal Security Service officer. The investigator forwarded the case for further examination to the Military Investigation Department of the Prosecutor s Office of the Nizhniy Novgorod Garrison ( the Military Investigation Department ) in charge of the inquiries into the complaints against the Federal Security Service. The applicant appealed against the decision. On 17 October 2008 the Sarov Town Court discontinued the examination of the complaint (as upheld on appeal on 19 December 2008 by the Nizhniy Novgorod Regional Court). On 14 October 2008 the investigator of the Military Investigation Department interviewed P. and G., lay witnesses of the arrest. They testified that they had not seen the police using force against the applicant during the arrest. On 20 October 2008 the investigator of the Military Investigation Department issued a refusal to bring criminal proceedings under Article 286 of the Criminal Code (exceeding official powers) against Z., for the absence of a criminal event. He found that Z. could not have obliged the applicant to read the interview record before signing it and rejected the allegations of pressure and forgery as unsubstantiated. On 22 October 2008 the Military Investigation Department returned the case materials in the part concerning the alleged ill-treatment by the Drugs Control officers to the Sarov Investigation Department. (c) Refusal to bring criminal proceedings against the head of the Sarov Drugs Control Service On 30 October 2008 the investigator of the Sarov Investigation Department by a separate decision refused to bring criminal proceedings against S., the head of the Sarov Drugs Control Service. The applicant complained about the decision at the Investigation Department of the Nizhniy Novgorod Region. On 20 March 2009 the Investigation Department of the Nizhniy Novgorod Region granted the complaint and ordered an additional inquiry

5 MILOVANOV v. RUSSIA STATEMENT OF FACTS AND QUESTIONS 5 having indicated several defects of the investigation. In particular, K. had not been questioned as regards the origin of the applicant s injuries, Sch. about the circumstances of the arrest and the Drugs Control Service officers about the events in the Service premises. (d) A Drugs Control officer s confession obtained in unrelated proceedings and subsequent developments In the meantime unrelated criminal proceedings against several officers of the Drugs Control Service were brought upon a complaint of a private person about ill-treatment and an attempt to plant drugs on that person. In course of the investigation one of the officers, V., produced a written confession concerning the applicant s case. It followed from the statement that: - on 18 June 2008 S., the head of the Drugs Control Service, instructed the officers to plant drugs on the applicant in the presence of the Federal Security Service officers Z. and Sa.; - on the day of the apprehension, V. had seen the applicant handcuffed and prostrated on the ground. V. and K. refused to plant drugs on the applicant; S. himself planted drugs into the applicant s pocket and kicked him in the groin; - S., Sa., Z., V. and K. had been present at the Drugs Control premises when the applicant was brought there. K. and V. had refused to search him because they had seen that the drugs had been planted on the applicant. K. had been forced to draw up an arrest record under threats. V. had seen S. and Sa. ill-treating the applicant. - lay witnesses had been invited by S. in advance and had worked in the Drugs Control Service before the events. On 3 April 2009 the head of the Sarov Investigative Department quashed the decision of 29 September 2008 and remitted the case for an additional inquiry. (e) Further developments On 3 April 2009 the Sarov Investigative Department forwarded the additional information obtained from V. on Z. s and Sa. s participation in the events to the Military Investigation Department. On 17 April 2009 the investigator of the Military Investigation Department interviewed Z. and Sa., as well as S. and Sch., Drugs Control officers who had taken part in the operation, G., a lay witness and T., an officer who had been waiting in the car during the operation. The officers flatly denied the accusations by V. as unfounded. On 20 April 2009 the Military Investigation Department quashed the decision of 20 October 2008 and ordered an additional inquiry in the circumstances of the applicant s alleged ill-treatment. On 29 April 2009 the investigator of the Military Investigation Department issued a new refusal to bring criminal proceedings against Z. and Sa., having concluded that V. s allegations had been unfounded. By a separate decision issued on the same day the investigator forwarded the case to the Sarov Investigation Department, because there was evidence indicating that Drugs Control officers K. and S. had ill-treated the applicant.

6 6 MILOVANOV v. RUSSIA STATEMENT OF FACTS AND QUESTIONS On 9 June 2009 the Sarov Investigation Department sent the case file back to the military investigators. On 25 June 2009 the head of the Military Investigation Department annulled the decision of 29 April 2009 and instructed the investigators to continue the inquiry. On 22 July 2009 the investigator of the Military Investigation Department again refused to open criminal proceedings. On 12 August 2009 the decision was quashed by the head of the Military Investigation Department. At some point the investigator of the Military Investigation Department questionned V. and K. who submitted that Z. and Sa. had not beaten the applicant. On 5 August 2009 P., lay witness, was interviewed. He also denied any allegations of ill-treatment or forgery of the evidence as unfounded. On an unspecified date the military investigator drew up two reports from which it followed that (a) V. s testimony was unsubstantiated and (b) the investigator had been unable to question the applicant because a judge in charge of the applicant s criminal case who could issue an authorisation for an interview had been on vacation. On 21 August 2009 another refusal to bring criminal proceedings against Z. and Sa., the Federal Security Service officers, was issued by the Military Investigation Department. On the same date the case was sent to the Sarov Investigation Department, because the case materials indicated that the Drugs Control officers had been involved in the alleged forgery of evidence and the ill-treatment. On 9 October 2009 the investigator of the Sarov Investigation Department again forwarded the case to the Military Investigation Department. On 9 November 2009 the head of the Sarov Investigation Department annulled the decision of 9 October 2009 on the case transfer. On 23 November 2009 the Sarov Investigation Department again decided that no criminal proceedings should be instituted with regard to the applicant s complaint. The applicant appealed. On 4 February 2010 the Sarov Town Court discontinued the proceedings on the applicant s appeal because the applicant had already been convicted by the first instance court (see below) and the examination of the complaint would amount to a revision of the conviction. On 19 March 2010 the Nizhniy Novgorod Regional Court reversed the decision of 4 February 2010 as unlawful and remitted the case for a fresh examination. On 14 April 2010 the head of the Sarov Investigation Department quashed the decision of 23 November 2009 and ordered an additional inquiry. On the same date the Sarov Town Court refused to examine the applicant s appeal against the decision because it had been annulled. On 15 April 2010 the applicant s forensic medical examination («судебно-медицинское освидетельствование») was held. The expert confirmed that there were chest abrasions, bruises on his back, buttocks and hips and found that the injuries could have appeared as a result of the applicant s falling down on the ground.

7 MILOVANOV v. RUSSIA STATEMENT OF FACTS AND QUESTIONS 7 On 16 April 2010 the investigator of the Sarov Investigation Department refused to bring criminal proceedings against the Drugs Control officers. With reference to the applicant s account of the events, V. s confession, the statements of the Drugs Control officers and the lay witnesses and the medical documents the investigator concluded that the officers had lawfully used physical force during the arrest and found no evidence of other instances of ill-treatment. 4. Criminal proceedings against the applicant On 18 June 2008 the applicant was arrested on suspicion of the drug trafficking (see above). He was examined at the Drugs Control Service office in the presence of P. and G., lay witnesses. According to the examination record drawn up on the same date, a sachet of drugs was discovered on him. According to the applicant, his several requests to grant him a lawyer were refused. On 19 June 2008 the applicant was questioned by an investigator of the Sarov Drugs Control Service and subsequently by Z., the Federal Security Service officer. On the same date the applicant signed a record confirming that he refused legal assistance at his apprehension and during [his] first interrogation as a suspect. On 20 June 2008 the investigator of the Drugs Control Service charged the applicant with attempted procurement and sale of drugs in particularly large quantities ( in conjunction with Article 30 3 of the Russian Criminal Code). On the same date he was questioned at the IVS as an accused in the presence of a State-appointed counsel F. He testified that the police officers had planted drugs on him and had subjected him to ill-treatment. He denied the charges against him. On the same date the Sarov Town Court ordered the applicant s placement in custody. The applicant submits that on 21 June 2008 he was threatened by the Drugs Control Service officers and signed unspecified documents related to his criminal case without having read them. As from an unspecified date the applicant was represented by T., another State-appointed lawyer. The applicant submits, in particular, that T. was not present at the interview of 3 July 2008 (see above) and signed the interview record on a later date. During the trial the applicant requested to admit various documents in support of his allegations of ill-treatment, argued that the confession had been extracted from him under duress and challenged admissibility of the confession. By two undated letters a judge of the Sarov Town Court requested the Military Investigation Department and the Sarov Investigation Department to provide the court with information and documents concerning the inquiry into the ill-treatment complaint. On 2 December 2009 the Sarov Town Court found the applicant guilty as charged and sentenced him to twelve years imprisonment. The applicant does not submit a complete copy of the judgment. It appears that the court admitted the applicant s pre-trial confession and did not take into account V. s statements regarding the applicant s ill-treatment.

8 8 MILOVANOV v. RUSSIA STATEMENT OF FACTS AND QUESTIONS The applicant appealed against the conviction. He argued that his confession was inadmissible as obtained under duress; that the drugs had been planted on him by the Drugs Control Officers; that the lay witnesses statements had been self-contradictory, and that T. had been ineffective: in particular, he was absent from the applicant s interview on 3 July On 12 March 2010 the Nizhniy Novgorod Regional Court upheld the conviction on appeal. The court found that the first instance court had examined the allegations of ill-treatment in detail, rejected them as unfounded and lawfully admitted the confession. The confession was corroborated by the testimonies of several other witnesses and the co-accused. As regards T. s alleged inefficiency, the court rejected the applicant s argument as unfounded, having noted that he had not raised this issue in the proceedings at the first instance court. COMPLAINTS The applicant complains under Article 3 of the Convention that he was tortured by the Drugs Control officers and that the investigation into his ill-treatment complaint was ineffective. The applicant complains under Article 6 of the Convention that he was convicted on the basis of the confession statement given under duress, and that the courts had not elucidated all the relevant facts. In particular, the courts disregarded the applicant s allegations that the drugs had been planted on him, rejected his ill-treatment complaint as unfounded and did not take V. s testimony into account. He further complains that State-appointed counsel T. was ineffective. He further complains under Article 13 that he did not have an effective remedy in respect of his ill-treatment complaint under Article 3.

9 MILOVANOV v. RUSSIA STATEMENT OF FACTS AND QUESTIONS 9 QUESTIONS TO THE PARTIES 1. Was the applicant subjected to torture or inhuman or degrading treatment on June 2008, in breach of Article 3 of the Convention? The Government are invited to address the following factual questions. (a) Once in the hands of the police: (i) Was the applicant informed of his rights? If so, when, and what rights was he informed about? (ii) Was he given the possibility of informing a third party (family member, friend, etc.) about his detention and his location and, if so, when? (iii) Was he given access to a lawyer and, if so, when? (iv) Was he given access to a doctor and, if so, when? (b) What activities involving the applicant were conducted at the Drugs Control Service between 18 and 20 June 2008, and during what periods? If they were carried out at night, was this lawful? What was the applicant s procedural status? Where was the applicant held on those dates? What confessions and/or statements did the applicant give during that period (please submit relevant documents, in particular, records containing the applicant s statements/confessions)? Was the applicant given access to a lawyer before and during each such activity? The Government are requested to submit relevant documents in answering each of the above questions. 2. Having regard to the procedural protection from torture, inhuman or degrading treatment or punishment (see Labita v. Italy [GC], no /95, 131, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention? In particular: (a) Were the investigators (investigating authority), who carried out the inquiry into the applicant s allegations of police ill-treatment, independent of the investigators (investigating authority) who were responsible for investigating the criminal case against the applicant? (b) Which officers (police, Drugs Control Service, etc.) from which police department(s) were involved in the inquiry into the applicant s complaint of police ill-treatment? What operational and other activities did they carry out in the course of the above inquiry? 3. Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 3 of the Convention as required by Article 13 of the Convention? 4. In the determination of the criminal charge against him, did the applicant have a fair hearing as required by Article 6 1 and 3 (c) of the Convention? In particular: (a) Taking into account the applicant s allegations of ill-treatment with a view of obtaining a confession, was his right to remain silent and not to incriminate himself respected? (b) Taking into account the applicant s allegations of denial of legal assistance during the pre-trial investigation, was his right to defend himself through free legal assistance or legal assistance of his own choosing respected?

10 10 MILOVANOV v. RUSSIA STATEMENT OF FACTS AND QUESTIONS (c) Did the confession statements made by the applicant during the investigation serve as a ground for his conviction?