CEDH · CASELAW;COMMUNICATEDCASES;ENG — 17 septembre 2020

.s800EAC49 { font-size:12pt } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s6B505E72 { margin:0pt; padding-left:0pt } .sCA386EC { margin-top:14pt; margin-left:27.6pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.6pt; font-family:Arial; font-size:11pt; font-weight:bold } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .s7A11F50B { margin-left:6.52pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; padding-left:0.83pt; font-weight:normal; font-style:italic } .sA36B60A1 { font-family:Arial; font-style:italic } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .s6846D3D8 { margin-top:14pt; margin-left:35.72pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.83pt; font-family:Arial; font-size:11pt; font-style:italic } .sD0682254 { margin-top:0pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s30C8A987 { width:4.78pt; font:7pt 'Times New Roman'; display:inline-block } .sB2ED4664 { margin-top:14pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s4E0353E8 { width:4.23pt; font:7pt 'Times New Roman'; display:inline-block } .s3FA6240E { margin-top:14pt; margin-left:59.55pt; margin-bottom:6pt; text-indent:-17.9pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; line-height:113%; font-size:10pt } .s6FC64B9D { width:2.78pt; font:7pt 'Times New Roman'; display:inline-block } .sD0489F03 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sBBEDD775 { margin-left:47.21pt; text-align:justify; padding-left:2.99pt; font-family:Arial } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s294DA4DA { margin-left:46.53pt; text-align:justify; padding-left:3.67pt; font-family:Arial }   Communicated on 17 September 2020 Published on 5 October 2020   THIRD SECTION Application no. 17912/15 Ruslan Makhamdiyevich KUTAYEV against Russia lodged on 10 April 2015 STATEMENT OF FACTS The applicant, Mr Ruslan Makhamdiyevich Kutayev, is a Russian national, who was born in 1957 and lives in Chernokozovo, Chechnya. He is represented before the Court by Mr I.A. Kalyapin, Ms O.A. Sadovskaya and Mr A.G. Ryzhov, lawyers from the Committee against Torture, an interregional organisation based in Nizhniy Novgorod. The facts of the case, as submitted by the applicant, may be summarised as follows. The circumstances of the case Background information The applicant is a public activist in the North Caucasus. On 18   February 2014, in Grozny, he arranged a conference titled “ The deportation of the Chechen people. What it was and whether it is possible to forget ” devoted to the 70 th anniversary of the deportation of Chechen population from the Caucasus under the Stalin regime. According to the applicant, following an order of the President of Chechen Republic, the head of its administration, Mr M.D., invited the participants of the conference for a meeting with the President of Chechnya, Mr R.K., on 19   February   2014. The applicant refused to appear. According to the applicant, during the meeting the President admonished the participants of the conference, since the activities commemorating victims of the deportation should have been held on 10   May, the day when his father, Mr   A.-Kh.K., had been killed in 2004. The applicant’s arrest and ill-treatment (a)    The events of 20-21 February 2014 According to the applicant, on 20 February 2014 at around 2 p.m. a group of armed men in black camouflage uniform arrived at the house of the applicant’s relative, Mr B., in the town of Gekhi of the Urus-Martan Region where the applicant stayed. The men arrived on six black vehicles with registration plates “EE...E”, allegedly used only by the government vehicles in Chechnya. The armed men did not introduce themselves. They put a jacket over the applicant’s head and put him in a vehicle. They did not explain the reasons for his arrest. The applicant was not allowed to change into proper clothing. According to the applicant, they drove for about 30 minutes and stopped in an unknown place. The applicant heard the officers ordering to open the gates. He was taken out of the vehicle in a small yard surrounded by two two-storied buildings and the gate. The applicant saw the Minister of Internal Affairs of Chechnya, Mr A.A., and the head of the Chechen President’s administration, Mr M.D. They punched and insulted the applicant. The beatings lasted for about 30 minutes, during which the applicant lost consciousness several times. Then the applicant was taken to a basement in the same compound. Several hours later one of the law-enforcement officers who had arrested him came to the applicant. The officer held a knife to the applicant’s throat and subjected him to electric shocks. He demanded that the applicant signed documents. According to the applicant, the ill-treatment lasted for about 30 or 40 minutes. Out of fear of being killed, the applicant agreed to sign the documents. He was taken to the premises of Department no. 2 of the criminal police in Grozny ( Оперативно-розыскная часть №2 Министерства внутренних дел по Чеченской республике ). The applicant signed the documents, according to him, without being acquainted with their contents. On 21 February 2014 at around 1 a.m. the applicant was taken to the Urus-Martan District Department of the Interior. The applicant’s arrest was recorded on 21 February 2014 at 1.30 a.m. At 5 a.m. he was transferred to the temporary detention facility in the Urus-Martan District. On an unspecified hour the applicant met a lawyer, who recommended him not to incriminate himself. According to the applicant, after the meeting he was again beaten by an officer in a black uniform and the head of the criminal police in Urus-Martan, who told him not to retract his statements. (b)    Official inquiry into the complaint of ill-treatment On 1 March 2014 newspaper Novaya Gazeta published an article regarding the applicant’s arrest and ill-treatment entitled “Therapy of the memory. By electric shocks”. The article described in detail the applicant’s arrest, his ill-treatment at the hands of the law-enforcement officers accompanied by the applicant’s photos and a copy of the text of his questioning by a lawyer (see below). Following the publication of the article, on 3 March 2014, Major of Justice N. reported to the Head of the Investigative Department of the Investigative Committee of Russia in Chechnya, Mr D., about alleged abuse of power by the and officials of the Chechen government. An inquiry was ordered and delegated to Z., an investigator for particularly serious cases of the Investigative Department of the Investigative Committee of Russia in Chechnya. (i)   Medical evidence of the applicant’s ill-treatment According to the medical examination act drawn up upon his admission to the temporary detention facility on 21 February 2014, the applicant had bruises on his right leg in the buttock area and his left hand. The applicant explained to the officer that he had fallen down the stairs. On the photos provided by the applicant to the Court, he had numerous dots on the skin of his left arm, various dark-violet marks on his left arm and a large dark-violet mark on his right buttock. According to the applicant, the photos were made during his questioning on 24   February 2014 (see below) by his counsel, Mr Kalyapin, who is also the applicant’s representative before the Court. On 11 March 2014 the investigator ordered a forensic medical examination of the applicant. The examination started on 14 March 2014. According to the conclusions of forensic medical examination act no. 68 of 17 March 2014, the applicant had an abrasion on the middle one-third of his left lower leg caused by a hard blunt object. The injury was not considered as having caused any harm to health. (ii)   Refusal to open a criminal investigation On 7 and 8 March 2014 investigator Z. took explanations from the applicant’s brothers who stated that they had learned about the applicant’s arrest from their relative, Mr B., at whose house the applicant had been arrested on 20   February   2014. On 2 April 2014 investigator Z. refused to open a criminal investigation into the alleged abuse of power. The decision was based on the explanations of the head of police and head of criminal police of the Urus-Martan district, who had denied any use of force against the applicant. Mr M.D. and Mr   A.A. stated that they did not know the applicant, and that no physical violence had been used against him. The decision referred to the conclusions of forensic act no. 68 and medical notes from the temporary detention facility journal. According to the decision, the injuries were caused by falling down the stairs. As to the applicant’s arrest, his version of events was declared unfounded. On 11 July 2014 the applicant’s lawyer appealed against the refusal to the Staropromyslovskiy District Court arguing that the applicant’s medical examination had been belated, and that the investigator had not addressed the applicant’s relatives’ statements about the circumstances of his arrest. On 15   July 2014 the court dismissed the appeal as unfounded. On 26 August 2014 the Supreme Court of Chechnya dismissed the appeal against the court decision. The court referred to the applicant’s conviction of 7 July 2014 and stated that the subsequent appeals against the alleged unlawful actions of law-enforcement officers could be lodged by way of appeal or cassation appeal against the conviction. Criminal proceedings against the applicant (a)    The applicant’s interviews and other investigative activities On 21 February 2014 between 9.30 and 10.20 a.m. the applicant was questioned as a suspect in the presence of lawyer M. The applicant stated that on 20 February 2014 on the way to Gekhi he found a small plastic bag in a taxi car and put it in his pocket. In Gekhi, at around 2 p.m. on the way to his relatives, police officers approached him and asked for his identity documents. The applicant was searched in the presence of attesting witnesses and the officers found a plastic bag with powder-like substance, of yellowish colour. On 22 February 2014 the applicant was charged with illegal purchase and storage of heroin in a large amount under Article 228 § 2 of the Russian Criminal Code (the CC). On the same day the applicant was questioned as an accused and, in the presence of lawyer M., he reiterated his statements. On the same day, a reconstruction of the incident was carried out near Mr   B.’s house. The applicant showed where he had been stopped by police officers and searched. On 24 February 2014 the applicant met members of non-governmental organisations, including the President of the interregional public organisation Committee Against Torture, Mr Kalyapin. Mr A.A. was present during the meeting. The applicant explained to the members that the injuries had been caused during the fight with a friend several days before. On the same day the applicant’s lawyer questioned him. Fearing the monitoring of their conversation, the lawyer wrote the questions on paper and the applicant answered in writing. The relevant parts of the questioning read as follows: “... -   Has physiological or physical pressure been put [on you]? -   Yes. -   Who was beating [you]? -   [Mr] A.A. and [Mr] M.D. were beating there. Here, the head of the criminal police and someone else [were beating]. ... -   Are you afraid to give statements and tell the truth? -   Yes. -   Did you tell the truth that the injuries had been caused during fight with a friend? -   No. -   Did you tell the employees of the non-governmental organisations the truth about the injuries? -   No. I was tortured, beaten, every minute there are threats from the head the Urus ‑ Martan criminal police and other people connected with him. They tortured me with electric shocks in Grozny. Every minute I am under threat of reprisal. Help! They threaten my family and relatives with reprisals. -   Have there been threats of sexual violence? -   Yes!!! -   Do you confess to the crimes you are charged with ...? -   No, I do not confess, but I am subjected to torture and threats. -   Do you need medical aid? -   Yes. -   Are you ready to lodge a complaint with the investigative committee ... regarding the events? -   I ask to consider these replies to the questions as an official complaint to the law ‑ enforcement bodies under Articles 144-145 of the Code of the Criminal Procedure.” The applicant put the date and signature under each reply to the questions. (b)    Proceedings concerning the applicant’s detention On 22 February 2014 the Urus-Martan District Court granted the investigator’s request to place the applicant in detention on remand. The applicant appealed against the decision arguing that there were no grounds for placing him in detention on remand. On 27 February 2014 the Supreme Court of Chechnya dismissed his appeal against the court decision. The applicant’s detention on remand was extended up until his conviction on 7 July 2014. It follows from the case file that he did not challenge the extensions. The applicant’s trial The criminal court proceedings against the applicant started on 10   April 2014. During the trial the applicant retracted his confession statements given during the questioning on 21 February 2014 and the reconstruction on 22   February 2014. He submitted that he had been arrested in B.’s house on 20 February 2014 and had been beaten by the law-enforcement officers, forcing him to confess to illegal purchase and storage of heroin. The applicant explained that he had not retracted the statements earlier out of fear for his life and his family. (a)    Witness submissions regarding the applicant’s arrest The court heard the applicant’s brother, Mr A.K., who testified that on 19   February 2014 at around 10 a.m. police officers had come to the applicant’s house and asked about the applicant’s whereabouts. The applicant’s relative, Mr B., stated that the applicant had arrived on 19   February 2014 and stayed overnight in his house. On the next day, around lunch time, police officers came and asked for the applicant. They put him in a vehicle and drove in an unknown direction. On 22   February 2014 police officers arrived with the applicant. He saw that the applicant was handcuffed. Mr Kalyapin testified that on 20 February 2014 at around 12 p.m. the applicant called him and told that “he had problems and was pursued” in connection with the conference that he had held. Mr Kalyapin asked the applicant to call him later because he had a meeting. At around 7 p.m. he found out that the applicant had been kidnapped. On the following day he learned from the applicant’s relatives that he had been detained in the Urus ‑ Martan Department of the Interior on suspicion of drug storage. He submitted that on 24 February 2014 the applicant had had hematomas on his left forearm and his leg when he had visited him in the temporary detention facility. Mr Kalyapin also submitted that during the meeting Mr   A.A. had been present and the applicant had been reluctant to talk in his presence. The court also heard witness statements of Mr I., the applicant’s friend. He stated that the applicant had called him on 20 February 2014 at around 12.10   p.m. and told that on 18 February 2014 Mr M.D. had called him and threatened. On 19 February 2014 Mr M.D. again called the applicant. The applicant did not know what to do and Mr I. recommended him to go to Moscow immediately. Later that day, Mr   I. could not reach the applicant by phone. In the evening, he learned from the applicant’s brother that the applicant had been arrested on drug-related charges. The court heard Mr G. and Mr N., politicians, who submitted that the applicant had called them and asked for help in view of his possible prosecution, regarding the conference that he had arranged. On the same day they learned that the applicant had been arrested on suspicion of having committed a drug-related crime. The court heard two attesting witnesses, who had submitted that they had witnessed the applicant’s search on 20 February 2014 around 2 p.m. By the time they had approached the scene, other police officers and the applicant had been already waiting for them. Police officers B.Z., I.Kh., S.M., Kh.B., S.A. and R.Yu. also testified in court that they had stopped the applicant at around 2 p.m. on 20 February 2014 for an identity check. They discovered drugs on him during the search. The court finally heard Mr   M.D., who denied any involvement in the applicant’s case. (b)    The applicant’s conviction On 7 July 2014 the Urus-Martan District Court convicted the applicant as charged under Article 228 § 2 of the CC and sentenced him to four years of imprisonment in a correctional colony of a general regime. In finding the applicant guilty, the court relied, among other evidence, on the following: -     the applicant’s statements given during the questionings as a suspect and an accused, -     witness statements of police officers that the applicant had been arrested on 20 February 2014 with a package of drugs, -     statements of attesting witnesses, -     the record of the applicant’s personal search of 20   February 2014, -     the record of the reconstruction of 22 February 2014, -     expert reports that the applicant had traces of heroine on his hands. The court dismissed the applicant’s arguments that his arrest had been motivated by his participation in the conference, which had caused discontent to the Chechen authorities. It found the statements of defence witnesses in support of his arguments unreliable. The court also dismissed his arguments that the confession statements had been obtained under duress as unsubstantiated. It noted that the applicant had not complained during the investigation about his ill ‑ treatment, that he had not appealed against investigative actions, and that he had given his confession statements in the presence of a lawyer. (c)    Proceedings before the court of appeal On 7 August 2014 the applicant’s lawyer lodged an appeal with the Supreme Court of Chechnya. In particular, he complained that he had not been arrested on the street with drugs, but in the house of his relative by law-enforcement officers, that following his arrest he had been subjected to police ill-treatment, and as a result he had been forced to confess that he had possessed drugs. The applicant challenged the witness statements of police officers about the circumstances of his arrest and statements of attesting witnesses. On 31 October 2014 the Supreme Court of Chechnya rejected the applicant’s arguments as unfounded and endorsed the findings of the Urus ‑ Martan Court. Regarding the alleged ill-treatment and enforced confessions, the court referred to the refusal to open a criminal case of 2   April 2014. Other materials submitted by the applicant On 25 February 2014 channel Grozny broadcasted the meeting of President R.K. and the Public Chamber of Chechnya. The relevant parts of the President’s statement read as follows: “Now Ruslan Kutayev is arrested, everyone is talking about it, people responded to it. I will tell you the whole story. ... Kutayev was asked: were you tortured? He replied: no. Was there any misconduct towards you? He replied: there was not. ... ...He conducted a conference timed to 23 February that is why he was arrested ... ... What was the reason to set the date of 10 May? ... We, coordinating all tragic dates and events of our people to one day, have decided that at one day we will pray and ask Almighty God for our killed, dead and sick ones. ...” On 11 March 2014 Novaya Gazeta published an article “Is there a first political prisoner in Chechnya?”, citing the Chechen President’s speech of 25   February 2014. On unspecified date after the conviction, the Amnesty International declared the applicant a “prisoner of conscience”. On 30 December 2014 Novaya Gazeta reported that Mr A.A. and Mr   M.D. had been included in the US Magnitskiy Sanction Act in relation to their involvement into the alleged falsification of the criminal case against the applicant. Between March and October 2014 Novaya Gazeta published several articles highlighting the court proceedings against the applicant. On 11   August 2014 the newspaper published that the Memorial Human Rights Centre had declared the applicant a “political prisoner”. Relevant domestic law and practice For the relevant domestic law on the prohibition of torture and other ill ‑ treatment and the procedure for examining a criminal complaint, see Lyapin v. Russia, no.   46956/09, §§ 96-102, 24 July 2014, and Ryabtsev v.   Russia, no.   13642/06, §§ 48-52, 14 November 2013. For the relevant domestic law and practice concerning the rights of suspects, see   Turbylev v. Russia , no.   4722/09, §§ 46-49, 6 October 2015. COMPLAINTS 1.     The applicant complains under Article 3 of the Convention that he was subjected to ill-treatment by State officials and that the investigation was ineffective in that regard. 2.     He further complains under Article 5 § 1 of the Convention about his unrecorded detention between 2 p.m. on 20 February and 1.30 a.m. on 21   February 2014. 3.     He also complains under Article 5 § 1 (c) of the Convention that there have been no grounds for his arrest and detention. 4.     Relying on Article 6 § 1 of the Convention, the applicant complains that the criminal proceedings against him were unfair as the conviction was based on his confession statements obtained under duress. 5.     Finally, the applicant complains under Article 18 of the Convention that his Convention rights were restricted for purposes other than those prescribed in the Convention, in particular, that his rights were restricted with the intention of punishing him for conducting a conference and further disobeying the President of Chechnya. QUESTIONS TO THE PARTIES Article 3 of the Convention   1.     Did the applicant comply with the six-month time-limit for raising his complaint under the substantive and procedural limbs of Article 3 of the Convention?   If yes:   2.     Has the applicant been subjected to treatment in breach of Article   3 of the Convention between 20 and 21 February 2014?   3.     Have the authorities discharged their burden of proof by providing a plausible or satisfactory and convincing explanation of how the applicant’s injuries were caused (see Salman v. Turkey [GC], no.   21986/93, §   100, ECHR 2000 ‑ VII, and Bouyid v. Belgium [GC], no.   23380/09, §§   83 et seq., ECHR 2015)?   4.     Did the authorities carry out an effective investigation, in compliance with the procedural obligation under Article 3 of the Convention, having regard to the investigating authorities’ refusal to open a criminal case and investigate the applicant’s allegations of ill-treatment by the State officials (see   Lyapin v.   Russia , no.   46956/09, §§   125-40, 24 July 2014, Samesov v.   Russia , no. 57269/14, § 54, 20 November 2018)?   Article 5 of the Convention   5.     Did the applicant exhaust domestic remedies in respect of his complaint about unrecorded detention under Article 5 § 1 of the Convention? In answering the question, the parties are invited to address the following points: What was the final decision in respect of this complaint? Did the applicant lodge his complaint within a period of six months from the date on which the final decision was taken, as required by Article   35 § 1 of the Convention?   6.     Did the applicant exhaust domestic remedies in respect of his complaint that there had been no reasonable suspicion for his arrest and detention under Article 5 § 1 (c) of the Convention? In answering the question, the parties are invited to address the following points: What was the final decision in respect of this complaint? Did the applicant lodge his complaint within a period of six months from the date on which the final decision was taken, as required by Article   35 § 1 of the Convention?   If answered in affirmative to the above questions:   7.     Was the applicant deprived of his liberty in breach of Article 5 of the Convention? In particular, was the applicant deprived of his liberty between 2   p.m. on 20   February 2014 and 1.30 p.m. on 21 February 2014, within the meaning of Article 5   §   1 of the Convention? If so, was that deprivation compatible with the guarantees of Article 5 §§ 1 to 5 of the Convention?   8.     Was the applicant’s arrest and detention lawful and not arbitrary? Was it based on a reasonable suspicion that he was implicated in an offence, as required by Article 5 § 1 (c) of the Convention? 9.     In answering question no. 8, the Government are requested to address the following points concerning the circumstances surrounding the applicant’s arrest: As regards the events prior to the applicant’s arrest, did the authorities have good reasons for the search measures against the applicant on 20   February 2014? What is the connection between the facts that police officers had searched for the applicant on 19 February 2014 in his house and the applicant’s arrest on 20 February 2014? What investigative activities, where, when and by whom were conducted with the applicant’s participation as of morning 20   February 2014 until 24 February 2014? What material was examined by the courts to verify if a reasonable suspicion of the applicant having committed an offence had existed?   Article 6 of the Convention   10.     In the determination of criminal charges against the applicant, did he have a fair trial, as required by Article 6 § 1 of the Convention, having regard to the fact that his confession statements allegedly obtained under duress were used in his conviction?   Article 18 taken in conjunction with Article 5 of the Convention   11.     In view of the parties’ submissions as to the admissibility of Article   5 of the Convention, did the applicant comply with Article 35 of the Convention in respect of his complaint under Article 18 of the Convention taken in conjunction with Article 5 of the Convention?   12.     Were the restrictions imposed by the State in the present case, purportedly pursuant to Article 5 of the Convention, applied for a purpose other than those envisaged by that provision, contrary to Article 18 of the Convention? The Government are requested to address this question in light of the statement made by the President of Chechnya, Mr R.K., on 25   February 2014, that “[the applicant] conducted a conference timed to 23   February that is why he was arrested”.