MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1419/H46-33

2 December 2021

1419th meeting, 30 November – 2 December 2021 (DH) Human rights   H46-33 Mikheyev group v. Russian Federation (Application No. 77617/01) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2019)797, H/Exec(2021)18, CM/Del/Dec(2019)1362/H46-26

 

Application	Case	Judgment of	Final on	Indicator for the classification
77617/01	MIKHEYEV GROUP (List of cases CM/Notes/1419/H46-33-app)	26/01/2006	26/04/2006	Complex problem

Case description

This group of cases concerns deaths, torture or inhuman and degrading treatment while in police custody in various regions of Russia in 1998-2017 and the lack of effective investigations into these incidents (substantive and procedural violations of Articles 2 and 3). In Makhashevy and Antayev and Others, the Court found that the applicants’ treatment was motivated by their ethnic origin (violation of Article 14 in conjunction with Article 3).

This group of cases also concerns irregularities related to arrest and detention in police custody, notably arbitrary and unacknowledged detention during which the applicants were ill-treated (violations of Article 5 § 1).

It further concerns the use in criminal proceedings of confessions obtained in breach of Article 3 (violations of Article 6 § 1) and the lack of an effective remedy to claim compensation for the ill-treatment inflicted (violations of Article 13).

In some of the cases of this group the Court found other violations, which are examined in the context of other cases/groups: conditions of detention, lengthy solitary confinement in a remand centre (Article 3); unlawfulness of remand detention (Article 5 § 1); length of remand detention (Article 5 § 3); absence at a hearing concerning extension of remand detention and lack of speedy judicial review of remand detention (Article 5 § 4); lack of adversarial proceedings, length of criminal proceedings (Article 6 § 1); lack of legal assistance in police custody or in appeal (Article 6 § 3(c)); failure to examine witnesses (Article 6 § 3(d)); placement in remote correctional colonies, unlawful entry into a home (Article 8); lack of an effective remedy in respect of conditions of detention and unlawful entry into a home (Article 13); censorship of correspondence with the European Court (violation of Article 34); withholding a copy of an investigation file (violation of Article 38 § 1(a)).

Status of execution

The Committee last examined these cases at its 1362^nd meeting (December 2019) (DH).

Individual measures

In its last decision, the Committee expressed grave concern in respect of the communications submitted by the applicants[1] that the authorities failed to give effect to the Court’s judgments in several cases of this group. The Committee urged the authorities to ensure that criminal investigations are opened or resumed, provided that the crime alleged has not became time-barred, and that they fully address the findings in the European Court’s judgments. The Committee further urged the authorities to address this problem without delay and to examine the possibilities for providing other forms of redress to the applicants affected and to provide information about the individual measures adopted in all of the cases in this group. The Committee also invited the authorities to indicate whether the lenient sentence given to the police officer in the Lyapin case may still be open to appeal by the prosecutor.

An overview of the status of execution in the individual measures may be found in H/Exec(2021)18.

In two communications received in September and October 2021, one applicant, Mr A. C. (case of Nigmatullin and Others), submitted that on 26 September 2021 the Supreme Court of the Russian Federation had quashed the refusal to open a criminal case in respect of his ill-treatment. Subsequently the Investigative Committee reopened the inquiry but on 11 August 2021 refused again to open criminal proceedings mainly due to prescription.

In another communication concerning Mr Prytkov (Ishevskiy and Others, No. 39619/09), Mr Averkiyev (Nigmatullin and Others, No. 47821/09) and Mr Bogdanov (Botov and Others, No. 22463/07) (see
DH-DD(2021)1157) the investigative authorities terminated or refused to open criminal proceedings on the grounds of impossibility to establish alleged injuries inflicted to the applicants, to identify those responsible, or due to the expiration of ten years’ statutory time-limit (for more details see H/EXEC(2021)18). In respect of Mr Bogdanov the proceedings are still pending.

While no updated information on the individual measures has been submitted by the authorities, the following transpires from the information submitted to date (see H-Exec(2021)18 for more details). As regards remedying the violations of Article 3, out of 172 cases, in two cases the police officers involved in torture were convicted following the European Court’s judgments, receiving suspended sentences. In one case, the police officers were found guilty but were absolved from serving their sentences due to prescription. In eight cases, the opening of criminal proceedings into the torture found to have occurred by the Court was refused, despite the findings of the violations by the Court, for lack of elements of a crime, i.e. that either it was not established that the ill-treatment had occurred, or it was not possible to identify those responsible, with the proceedings having become time-barred in some of those cases (see H/Exec(2021)18).

As regards the violations of Article 6, in eleven cases the criminal proceedings against the applicants were reopened following the adoption of the judgments. In one case, the applicant was acquitted by jury in a new trial; in four cases, the convictions were either upheld or rendered anew in the new trials after exclusion of the tainted evidence. However, in two other cases the original convictions were left standing by the Presidium of the Supreme Court despite the finding of the European Court that the use of evidence obtained under torture rendered the proceedings unfair as a whole (see, for the reasoning, Mukayev (above) and Abdulkadyrov and Dakhtayev, in H/Exec(2021)18).

In another case, the applicant died shortly after his conviction was quashed and the new trial commenced. In the remaining cases, no information is available as to the outcome of the new trials. In several cases, it is unclear whether the applicants have requested a reopening of these proceedings.

No information has been provided or is publicly available about any redress provided for the other violations found by the European Court in these cases (see case description).

General measures

In the decision adopted at its 1362^nd meeting (December 2019) (DH), the Committee reiterated the need for a “zero tolerance” message at high level vis-à-vis deaths, torture and ill-treatment.

Rule 9 communication

On 13 October 2021 an NGO (Centre de la Protection Internationale) submitted a communication
(DH-DD(2021)1101). In response to the general measures indicated by the Government in the updated Action report of 12 July 2019 (DH-DD(2019)797), the submission noted the following:

As to the improvement of guarantees for a suspect’s right to a telephone call to inform his relatives about his apprehension and whereabouts

Suspects detained in custody in pursuance of a preventive measure (remand in custody)^[2], placed by court order into a medical institution (such as a mental health facility), accused persons and convicted persons who have absconded or have evaded serving their sentence are not entitled to a phone call. Furthermore, Article 96 of the Code of Criminal Procedure provides for further exemptions from the general rule, which may be authorised by the prosecutor in cases of “the need to keep the detention secret for the purposes of the pre-trial investigation”.^[3]

As to the amendments to the 2017 Law on State Protection of Victims, Witnesses and Other Parties to Criminal Proceedings

This law can only be invoked when a criminal case is opened against a law enforcement officer. Given the low rate of such criminal cases, the submission considers that the effectiveness of this law is highly questionable.

As to ruling of the Supreme Court of 2018 on the administrative courts’ obligation to report a reasonable suspicion of ill-treatment to the investigation authorities

Even if information about a reasonable suspicion of ill-treatment is transmitted to the investigation authorities, it does not guarantee the opening of criminal proceedings, since allegations of ill-treatment are frequently limited to the examination within pre-investigation inquiry.

As to the amendments in departmental orders of the Prosecutor General's Office

The low rate of criminal sanctions as opposed to disciplinary proceedings against police officers does not correspond to the “zero tolerance” message policy.

As to the Police and Investigating Committee

According to the government’s submission, the majority of complaints of ill-treatment received by the Ministry of Interior were referred to their territorial units for further investigation, who were themselves involved in the alleged ill-treatment. Accordingly, this procedure failed to address the concerns raised by the Committee of Ministers on the issue of distribution of competences between the Investigative Committee and the police as well as on the issue of lack of staff in the Investigative Committee unit dealing with
ill-treatment allegedly committed by police.

The above NGO further noted that the low number of reopened cases by the Supreme Court indicates that the standards of retrial in view of the findings of the European Court have not been made sufficiently clear to the judicial authorities in Russia.

Analysis by the Secretariat

At the outset the absence of any updated information from the authorities since 2019 should be deeply regretted and serious concern expressed about the remaining large number of cases pending since 2006. Further, over 200 new applications are pending before the European Court, indicating the lack of progress in the execution of these judgments concerning a systemic and structural problem in the respondent State.

Individual measures:

The outstanding issues concern: ineffective investigations, including failure to open full criminal investigations; dismissal of the allegations regarding the injuries inflicted by police mainly on their denial of
ill-treatment; delays or failure to conduct forensic examination; failure to interrogate witnesses; absence of conducting identification parades; absence of cross-examining witnesses and other shortcomings outlined in H-Exec(2021)18.

It is to be noted that the judgments in these groups concern mainly three situations: cases where the Court found both substantive and procedural violations of Article 3 and/or Article 2; cases where the Court found only procedural violations of Article 3 and/or 2 of the Convention; and cases where the Court could not establish the existence or absence of ill-treatment owing to the lack of effective investigations at domestic level. Therefore, the authorities’ response needs to be adjusted to the specificities of each of the case in question and the methodology of investigating needs to be adequately developed, in order to establish the facts and avoid impunity, given that the onus rests on the respondent State to provide a plausible explanation for injuries sustained by a person under the control of the police.

The absence of the updated information is a matter of very serious concern as the situation does not allow an assessment by the Committee of the state of play concerning prescription to identify in which cases individual measures are still possible and the investigation should be conducted as a matter of urgency, or where investigations are no longer possible which alternative adequate redress for the victims may be provided.[4]

General measures:

The only source of information for the purpose of examination of the present group at this Committee’s meeting is the most recent submission provided by the NGO described above. Therefore, the serious concerns expressed by the Committee at the last examination of this group of cases have not been addressed by the respondent State and remain outstanding. These can be summarised as follows.

As regards preventing and combatting ill-treatment in police custody

Firstly, no strong, high-level message of zero-tolerance of ill-treatment in police custody has so far been sent. Secondly, as regards safeguards against ill-treatment, information is awaited about the measures adopted or envisaged to further improve the existing safeguards against ill-treatment and their practical implementation, notably:

- legislative and regulatory framework governing the use of force by the police;

-apprehended persons’ right to a telephone call to inform about their apprehension and whereabouts;

-apprehended persons are duly informed of their rights;

-access to a lawyer is granted before initial questioning by police officers;

-medical examination of all persons apprehended;

-measures to address police ill-treatment motivated by the apprehended person’s ethnic origin;

-statistical information about the number of convictions of persons complaining about police ill-treatment of “false accusations”.

As regards the effectiveness of investigations into allegations of ill-treatment in police custody

Information is awaited on the following issues:

- the possibility to criminalise torture as a separate crime[5] removing statutory time-limits[6] for its prosecution and setting appropriate sanctions, in line with other member States’ and the Committee’s practice;

-the way in which police ill-treatment complaints may be registered, in particular whether a complaint into alleged police ill-treatment may be registered as “citizen petition” rather than a criminal complaint at the discretion of a duty officer;

- the possibility for prison officers to restrict discussions of ill-treatment between detainees and members of the Public Monitoring Commissions (PMCs) (independent civil body monitoring ill-treatment of detainees), which may significantly reduce the monitoring role and effectiveness of PMCs;[7]

-measures taken in order to avoid rejection of complaints at the stage of pre-investigation inquiry;

-the division of competencies between the different bodies charged with investigation of police ill-treatment;

-in this regard, a clear description of the roles played by other bodies involved, including police internal security departments and investigators who are not members of the aforementioned special units is required;

-the alleged negative impact on investigators’ performance appraisal of the lack of judicial convictions in criminal cases they open, and the reported lack of staff in the Investigative Committee dealing with police
ill-treatment;

-reconsideration of the practice of suspended sentences handed down to police officers found guilty of
ill-treatment, which deprives criminal law of its deterrent effect (cf. Voroshilov, § 26);

- manner in which national judges are provided with translations, summaries or extracts of European Court judgments and the legal status of such translations which would allow them to be used in domestic proceedings without requiring any further certified translation from the parties;

-updated statistical data concerning investigations into complaints of police ill-treatment, including the number of such complaints received by the various investigative bodies, the number of full-fledged criminal investigations initiated, the number of convictions handed down and details of sentences imposed on wrongdoers.

Use by prosecutors and criminal courts of confessions obtained under duress

Given that the admission of evidence obtained under duress continues to encourage and perpetuate the practice of torture, the authorities should be urged to ensure that all evidence obtained under torture is prima facie inadmissible and cannot be used by prosecutors and criminal courts for the purposes of construction of criminal charges or convictions.

Conclusion

The significant increase of cases concerning police ill-treatment and ineffective investigations in the respondent State[8] , as well as the communications submitted by NGO’s and applicants demonstrate the absence of major progress in the execution of these judgments, which have been pending before the Committee for 15 years. This is a matter of grave concern. Urgent measures are thus required to prevent recurrence of similar, serious human rights violations.

Examples of good practices may be found in the practices of other member States, including, as regards safeguards to prevent substantive violations of Article 3, installing video cameras in police stations, recording interrogations.[9] As regards measures to enhance effectiveness of investigations, these may include the establishment of an independent investigative body dealing with police ill-treatment complaints,[10] abandoning the pre-investigation inquiry stage, opening of criminal case into complaints immediately[11], and early examination of possible ex officio reopening of criminal investigations.[12] In this connection the authorities should be invited to engage promptly in bilateral dialogue with the Secretariat and to participate actively in the cooperation activities offered by the Council of Europe.

To further assist the process of finding optimal solutions, the authorities should be encouraged to agree to the publication of the latest reports of the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT) on the five visits to Russia carried out between 2013 and 2021, covering ill-treatment in police custody.

Financing assured: YES