Постановление Европейского суда по правам человека от 10.06.2010 «Дело Шаркунов и Мезенцев (sharkunov and mezentsev) против России» [англ.]

Город принятия

(Application No. 75330/01)
(Strasbourg, 10.VI.2010)
*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 Sharkunov and Mezentsev v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Christos Rozakis, President,

Nina {Vajic}*,

*Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.

Anatoly Kovler,

Khanlar Hajiyev,

Sverre Erik Jebens,

Giorgio Malinverni,

George Nicolaou, judges,

and {Soren} Nielsen, Section Registrar,

Having deliberated in private on 20 May 2010,

Delivers the following judgment, which was adopted on that date:

1. The case originated in an application (No. 75330/01) 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 two Russian nationals, Mr Vyacheslav Viktorovich Sharkunov and Mr Aleksey Aleksandrovich Mezentsev ("the applicants"), on 20 August 2001.

2. The applicants were represented by Mr I. Timofeyev and then by Ms A. Demeneva, lawyers practising in Yekaterinburg. The Russian Government ("the Government") were represented by Mr P. Laptev and then by Mr G. Matyushkin, respectively the former and current Representatives of the Russian Federation at the European Court of Human Rights.

3. By a decision of 2 July 2009 the Court declared the application partly admissible.

I. The circumstances of the case
4. The applicants were born in 1969 and 1971 respectively. They are serving their prison sentences in the Kurgan Region.

A. First applicant's arrest and detention
1. Alleged ill-treatment
5. On 5 May 1999 the first applicant (Mr Sharkunov) was brought to the Organised Crime Unit of the Kurgan Regional Department of the Interior in the town of Shadrinsk. He was suspected of a Mr M.'s murder. As can be seen from the arrest report drawn up at 2.25 a.m. on 6 May 1999, the applicant's family and next of kin were not informed. According to the applicant, the police officers placed a canvas bag on his head, beat him and administered electric shocks with the purpose of extracting a confession from him. The applicant made no confessions.

6. During the same night, from 2.35 to 3.15 a.m., the first applicant was brought before investigator P. The record of interview contains the following pre-typed standard wording:

"I have been informed that under Article 51 of the Russian Constitution, no one is required to testify against himself, his spouse or next of kin... I have also been apprised of the rights of the suspect during the preliminary investigation under Articles 52 and 64 of the RSFSR Code of Criminal Procedure:

A suspect has the following defence rights: to know the accusation against him; to make statements; to adduce evidence; to make requests; to have access to the records of investigative measures carried out in his presence and to have access to the file submitted to the court confirming the lawfulness of and reasons for remanding him in custody; to lodge challenges and complaints against the investigator's decisions and actions; to read this record after the interview, request its amendment and to make observations, which must be included in the record.

I have also been informed that under Articles 47 - 52 of the RSFSR Code of Criminal Procedure a suspect has a right of defence. For this investigative measure I required ___ counsel (appointed by an advocates' office; a lawyer named by me; if no counsel requested - indicate a reason...)."
The applicant made a handwritten statement indicating that he did not require counsel and that he would defend himself. This note bears his signature.

The record of the interview also contains another handwritten note by the applicant in the following terms:

"I have been apprised of the content of Article 51 of the Constitution. For the time being I refuse to speak."
This note bears the applicant's signature.

7. On the same night a medical assistant in the local sobering-up centre carried out a medical check of the upper part of his body; no injuries were recorded. The applicant was then placed in the Shadrinsk temporary detention centre. The applicant was examined by a medical assistant and complained of "pain all over the body". Blue bruises on the hip/thigh and blue injection marks on his arms were recorded. The medical assistant ascribed the marks to drug addiction and withdrawal symptoms. As can be seen from the applicant's written statement made on the same day, he had been horse riding the day before and had no complaints against any public official.

8. On the investigator's order, on 7 May 1999 the applicant was examined by a medical expert. The examination was carried out in the presence of two convoy officers. The report drawn up on 7 May 1999 stated that the first applicant had no physical injuries.

9. On 8 May 1999 the applicant was examined by paramedics, who concluded that he was suffering from withdrawal syndrome. On 15 May 1999 the applicant was examined in relation to abdominal pains and pain in the neck and in the thoracic spine area. It appears that he was given unspecified medicines.

10. According to the Government, the applicant had access to counsel T. on 12 May 1999, and on 14 May 1999 he was interviewed in the presence of counsel and remained represented throughout the pre-trial investigation and trial.

11. On 17 May 1999 the applicant was transferred from the temporary detention centre to a remand centre.

2. Inquiry into the allegation of ill-treatment
12. On 17 May 1999 the applicant's mother lodged a complaint with the Supervising Prosecutor's Office of the Kurgan Region and the Shadrinsk town prosecutor, alleging that her son had been ill-treated in police custody:

"My son was arrested on 5 May 1999... I became aware later on that on 6 May 1999 he had been taken to section 6 of the town department of the Interior and had been severely beaten and tortured by electric shocks in order to obtain confessions... Ill-treatment continued later on... The above was confirmed by my son's former counsel D. who told me on 7 May that my son was being ill-treated. D. saw my son on 11 May and called me, asking me to bring my son clean clothes. On 12 May the lawyer told me that my son had been beaten again and had been given electric shocks... On the same day I unsuccessfully asked investigator P. to let me see my son... On 14 May the investigator told me that he would hand over the clean clothes to my son if I refused to take away the old ones, which might be needed for an expert examination... After the arrest my son named the lawyers he wanted to instruct; since they were not available the investigator should have appointed legal aid counsel instead... I was misled by the staff of the temporary detention centre about the withdrawal pains my son had allegedly been suffering from... This did not make any sense to me... On 8 May I had brought some pain killers and asked - in vain - to call for an emergency squad for my son... My son has a medullispinal hernia, which can be painful at times..."
13. The complaint was forwarded for examination by the Shadrinsk Inter-District Prosecutor's Office. A preliminary inquiry was ordered.

14. During the inquiry the medical assistant of the sobering-up centre affirmed that no injuries had been recorded and that the applicant had made no complaints or allegations on 6 May 1999 at or around 4 a.m. However, according to the on-duty officer of the temporary detention centre, on 6 May 1999 at 4 a.m. the applicant had been brought to the temporary detention centre; blue bruises and injections marks were visible on his body; the applicant explained that he had sustained the bruises while horse riding and that he was a drug addict. As can be seen from a statement issued on 20 May 1999 by the medical assistant of the temporary detention centre, on 6 May 1999 the applicant complained of pain in the body; the examination at 8 a.m. revealed blue bruises on the hip/thigh and blue injection marks on his arms; the medical assistant ascribed these to drug addiction and withdrawal symptoms. According to her statement, the applicant was also seen on 8 May 1999 for unspecified reasons, and on 15 May 1999 on account of his complaints of pain in the neck and the thoracic spine area; he had had no health-related complaints when transferred to the remand centre on 17 May 1999.

15. A number of officers made written statements. Officer E. stated that he had brought the applicant to the Unit on 6 May 1999 at or around 4 p.m.; investigative measures had been taken until around 2 a.m. in the presence of investigator P.; thereafter, the applicant had been brought to the sobering-up centre for an examination and then to the temporary detention centre; he had not witnessed any ill-treatment against the applicant (see also paragraph 52 below).

Officer Ba. stated that the applicant had been brought to the Unit on 5 May 1999; investigator P. had also been present while some measures were being carried out; no ill-treatment was inflicted on the applicant in the Unit and no signs of ill-treatment were visible on his body.

Senior officer Ya. made a similar statement (see also paragraph 51 below) indicating that the applicant had been brought to the Unit on 5 or 6 May 1999 in the afternoon.

Officer K. stated that the applicant had been present on the premises on 6 May 1999 in the afternoon and that he had seen investigator P. and officers E. and Ya. with the applicant at around 9 p.m. the same evening. Officer K. did not witness any ill-treatment.

Lastly, investigator P. stated that he had issued an arrest warrant against the applicant and questioned him; no ill-treatment had been inflicted on the applicant; a medical expert had examined him on 7 May 1999 and found no injuries.

16. By a decision of 1 June 1999 the Shadrinsk Inter-District Prosecutor's Office refused to institute criminal proceedings against the officers allegedly responsible for the first applicant's ill-treatment. It was established that the applicant had been arrested on 5 May 1999 and had been brought to the Organised Crime Unit for investigative measures. Thereafter, he had been examined by a medical assistant of the sobering-up centre; no injuries had been noted. The applicant was then brought to the temporary detention centre and examined by an "on-duty" officer; the applicant explained that the bruising on his hips/thighs had been sustained before the arrest (probably from horse riding); no injuries had been found during his placement in the remand centre on 17 May 1999. In May 1999 the applicant made no complaint about his health and did not raise any allegations against any public official. Nor did he raise any allegations during the inquiry that had been initiated following his mother's complaint.

17. As can be seen from the decision of 1 June 1999, "the persons concerned should be informed of the decision and the procedure for appealing against it". By a letter of the same date, the applicant's mother was notified of the decision and of the possibility of appealing to a higher prosecutor.

3. Related proceedings
18. On an unspecified date Mr T. was appointed as counsel for the applicant. On 15 June 1999 he sought a copy of a search order in respect of the applicant's flat; he also asked the investigator to allow the applicant visits from his family.

19. A medical certificate dated 17 September 1999, issued by the local drug addiction hospital, states that the first applicant did not suffer from alcohol or drug addiction and did not require any related treatment while in detention.

20. On 21 February 2000 the first applicant complained to the Kurgan prosecutor's office supervising detention facilities about the events of 5 and 6 May 1999 and the investigation. The applicant made the following statement:

"On 5 May 1999... I was interrogated in a particularly intensive manner, which I can describe if you so require. The officers tried to compel me to make confessions in respect of a criminal offence in which I was not involved and of which I knew nothing. At night investigator P. joined in. When physical violence temporarily ceased and the bag was taken off my head, investigator P. compelled me to make written statements... He told me that he had witness statements against me... For twelve days in the temporary detention centre I made statements concerning my alibi on the day of M.'s murder and the alleged animosity between myself and the above witness..."
21. By a letter of 28 February 2000 the applicant was informed that his renewed complaint had been dismissed by the Kurgan Regional Prosecutor's Office because the inquiry had already resulted in a decision not to initiate criminal proceedings in relation to the alleged ill-treatment.

22. On 6 May 2000 the applicant was interviewed in the presence of counsel, pleaded not guilty, sought a face-to-face confrontation with the second applicant and then chose to remain silent.

23. Between May and September 2000 the applicant sent several unspecified complaints from the detention facility to the Kurgan Town Court. In April 2000 the applicant's mother complained to the regional prosecutor about the inquiry into the allegation of ill-treatment.

B. The second applicant's arrest and detention
1. Alleged ill-treatment
24. On 9 December 1999 the second applicant (Mr Mezentsev) was brought to the above-mentioned Organised Crime Unit in Shadrinsk from a detention facility in the town of Kurgan.

25. According to the applicant, he remained in the police car with a canvas bag on his head and received several blows from the convoy officers. In the Unit the officers connected wires to his little fingers and applied electric shocks. When he fainted they hit him on the head so that he would regain consciousness. A canvas bag was placed over his head, restricting the airflow. He could not bear the pain and admitted his complicity in the killing of a Mr K.

26. On the same day, between 7 p.m. and midnight, the second applicant was questioned by investigator P. The record of interview contains the following pre-typed standard wording:

"I have been informed that under Article 51 of the Russian Constitution, no one is required to testify