Professional Documents
Culture Documents
JUDGMENT
(Extracts)
STRASBOURG
22 December 2015
FINAL
02/05/2016
This judgment has become final under Article 44 § 2 of the Convention. It may be
subject to editorial revision.
LYKOVA v. RUSSIA JUDGMENT 1
PROCEDURE
1. The case originated in an application (no. 68736/11) 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, Ms Irina Nikolayevna Lykova
(“the applicant”), on 26 October 2011.
2. The applicant, who had been granted legal aid, was represented by Ms
O.A. Gnezdilova, a lawyer practising in Voronezh. 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 complained about her son’s death in a police station,
alleging that he had been detained there unlawfully and subjected to ill-
treatment by police officers.
4. On 13 September 2012 it was decided to grant priority to this
application under Rule 41 of the Rules of Court, and on 21 October 2013
the application was communicated to the Government.
THE FACTS
accompany them to the police station. Mr Lykov was invited for the
purpose, in particular, of “provid[ing] useful information”, in line with
section 11 § 4 of the Police Act of 18 April 1991, then in force. Sergey
Lykov accepted the invitation of his own free will.
11. After discussions with police officer T. at the police station, Sergey
Lykov decided to confess to a theft purportedly committed on 4 September
2009, and provided a written statement to that effect. T. informed Mr Lykov
of his constitutional right not to incriminate himself.
12. At 6.50 p.m., after having finished writing his confession, Sergey
Lykov suddenly threw himself out of the open window of T.’s office, which
was on the fifth floor.
3. Subsequent events
13. At 7.50 p.m. Mr Lykov arrived at hospital with an emergency
medical assistance team. He died at 1.10 a.m. on 10 September 2009.
14. Sergey Lykov’s cousin I., who had had no news of him, carried out a
search and on 10 September 2009 she finally found his corpse in the
Voronezh morgue. After examining the body, I. noted that it had signs of
numerous physical injuries, in particular a haematoma above the left
eyebrow, facial injuries and haematomas on the wrists.
15. On 13 September 2009 I. wrote to the Prosecutor General of Russia,
requesting that an investigation be opened into the death of Sergey Lykov.
She informed the Prosecutor that her cousin had been arrested on
9 September 2009 while he was with his friend P.
16. On 22 September 2009 police officer B. from the Tsentralny district
police station in Voronezh issued a decision refusing to open a criminal
investigation into the supposed theft, on the street, of a mobile telephone, to
which Sergey Lykov had confessed: B. noted that the avowed offence of
theft had never been recorded in the registers of complaints by victims of
offences, which were held by the police.
seen Sergey Lykov being struck, had not heard him crying out, and had not
noticed any physical injury on his person;
– he had heard Sergey Lykov complain of heart pains, but never refer to
an intention to commit suicide.
23. The investigator took note of the statements by the applicant, and
also of close relatives of the victim, to the effect that he had never expressed
thoughts of suicide.
24. The investigator noted the presence in the case file of the written
confession drawn up by Mr Lykov shortly before his death.
25. Relying on the information communicated by the hospital in which
Mr Lykov had been treated after his fall, the investigator established that
death had resulted from Mr Lykov’s fall from the fifth floor. No injuries
indicating kicks or punches, or the use of handcuffs, had been found on the
corpse.
26. Lastly, the investigator noted the contents of the report from the on-
site inspection conducted on 9 September 2009 (see paragraph 17 above).
27. On 28 June 2010 the decision of 21 September 2009 was set aside by
a hierarchically superior civil servant, who ordered an additional
investigation, noting, in particular, that it was necessary to:
– find witnesses who could confirm that Sergey Lykov had suicidal
thoughts;
– verify that the police officers who had taken Sergey Lykov to the
police station had acted in accordance with the law;
– consider whether the police officers who had not ensured the victim’s
safety inside the police station bore any criminal liability.
28. In the meantime, on 27 October 2009 an autopsy of the body was
carried out on the orders of investigator L. and a forensic report was drawn
up. In that document, the forensic medical expert noted that death had
resulted from multiple fractures to the head, chest and spine, and to the base
and dome of the skull. According to the expert, the location of the injuries
identified, and the preponderance of internal over external injuries, led to
the conclusion that those injuries had originated in [Mr Lykov’s] fall from
the fifth floor. The expert concluded that there was no cause-and-effect
relationship between the other injuries (hematomas and scratches on the
trunk and the lower and upper limbs, namely a hematoma in the fold of the
right elbow measuring 4 x 3 cm; a scratch on the right forearm measuring 6
x 0.7 cm; a 4.5 x 2 cm hematoma on the right carpus; a hematoma on the
left shoulder measuring 18 x 14 cm, on which there were scratches of 5 x
2.5 cm; a hematoma on the left knee measuring 7 x 6 cm, on which there
was a scratch of 1.5 x 1 cm; and an oval-shaped scratch on the left ankle
measuring 2 x 1.5 cm) and the death. As to the question of whether there
were traces of a struggle or self-defence, the doctor indicated that it was
generally accepted in forensic medicine that injuries to the arms and wrists
were to be classified in that way. Thus, he noted the presence of a bruise on
6 LYKOVA v. RUSSIA JUDGMENT
the right carpus and a scratch on the right forearm. He added that he was
unable to ascertain how those injuries had been sustained. Lastly, the doctor
noted that the corpse had been deposited in the morgue unclothed.
38. On 10 September 2009, the day after his arrest, P. was taken to a
temporary detention centre (“IVS”). During his admission, a doctor’s
assistant noted the following physical injuries: a bruise on the left shoulder-
blade, scratches on the elbows and knees, and a bruise on the right ear. The
medical assistant drew up a report recording the injuries and noting that they
were the result of a road-traffic accident that had occurred on 9 September
8 LYKOVA v. RUSSIA JUDGMENT
2009. The medical examination was carried out in the presence of police
officers who had participated in the beating. According to P., it was the
police officers who provided the medical assistant with the road-accident
version of events, while he himself, for fear of reprisals, had been obliged to
confirm it.
39. On 11 September 2009 P. was transferred to remand prison no. 1 in
Voronezh. On admission, he was examined by a doctor who found the same
injuries as those observed in the IVS.
40. On an unspecified date in September 2009 P. lodged a complaint
about the alleged ill-treatment at the police station. According to P., this
complaint led to him being taken on the following day to the police station,
where he was beating in reprisal. Then – again according to his submissions
–, P. withdrew his complaint in fear for his life when investigator Ya. came
to the remand prison to question him about the circumstances of the ill-
treatment. According to P., in response to his question about possible
consequences for the police officers involved in beating Mr Lykov and
himself, investigator Ya. replied that, in any event, there had been none.
41. On 5 October 2009 inspector Ya. from the Voronezh regional
department of the Investigation Committee issued a decision refusing to
open a criminal investigation. She recounted the explanation provided by
police officer Sa., who had denied any ill-treatment, and, noting P.’s
withdrawal of his complaint, concluded that no ill-treatment had occurred.
42. In the meantime, the criminal investigation against P. continued, and
resulted in an examination on the merits by the Voronezh regional Court. At
the public hearing on 1 February 2011 P. made a statement. He withdrew
the account given by him in the context of the investigation into the death of
Sergey Lykov. P. described the events of 9 September 2009 as they are set
out in paragraphs 6-8 of the present judgment. He added that police officer
S. had threatened him if he were to withdraw his confession to the thefts or
make statements about the events surrounding the arrest and death of Mr
Lykov. He added that S. had beaten him again prior to the court hearing
concerning his placement in pre-trial detention, in order to prevent him
lodging a complaint before the judge. He also alleged that he had been
subjected to unprovoked attacks by the administration of the remand prison
in which he was detained. P. asked to be placed under protection in his
capacity as a witness of the ill-treatment inflicted on Sergey Lykov by
police officers. He also asked that criminal proceedings be brought against
police officer S. for abuse of power and for the murder of Mr Lykov. P.
suggested that the criminal investigation into the death be reopened.
43. The judge ordered that P.’s written statement be included in the case
file. With regard to P.’s requests in respect of S. and Mr Lykov, the judge
replied that the latter’s death was unrelated to the ongoing trial; as for S., he
was not a party to the trial proceedings. In consequence, she dismissed those
requests.
LYKOVA v. RUSSIA JUDGMENT 9
V., Sergey had confided in him that, if he were arrested, he “would harm
himself”.
51. The investigator questioned the deceased’s grandmother and cousin,
who stated that, to their knowledge, Sergey did not take drugs, did not abuse
alcohol, and had never expressed thoughts of suicide.
52. On 13 January 2014 the investigator issued a decision granting the
applicant victim status.
54. For the relevant domestic law concerning criminal liability for
murder, incitement to suicide or abuse of office, as well as the criminal
procedure, see the judgment in Keller v. Russia, no. 26824/04, §§ 54-61 and
67-73, 17 October 2013.
55. For a description of the powers given to the police by section 11 of
the Police Act of 18 April 1992, see the judgment in Shimovolos v. Russia,
no. 30194/09, §§33-34, 21 June 2011.
56. For a description of the status of the special department responsible,
within the Investigation Committee of Russia, for investigating offences
committed by civil servants within the security forces, see the judgment in
Razzakov v. Russia, no. 57519/09, § 43, 5 February 2015.
57. According to Article 19.3 of the Code of Administrative Offences,
apart from where such an order is unlawful, a refusal to obey an order given
by a police officer acting in the exercise of his or her duties to protect public
order is punishable by an administrative fine ranging from 500 to
1,000 roubles or up to 15 days’ administrative detention.
58. According to the joint directive of 29 December 2005 from the
department of the Prosecutor-General of Russia (no. 39), the Ministry of the
Interior (no. 1070), the Ministry of Emergency Situations (no. 1021), the
Ministry of Justice (no. 253), the Federal Security Service (no. 780), the
LYKOVA v. RUSSIA JUDGMENT 11
THE LAW
no. 77617/01, 26 January 2006), she supposed that her son, after several
hours of unbearable torture, had been in such a state of mind that he saw no
other solution but to throw himself from the window to escape his suffering.
112. 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.
1. General principles
113. The Court reiterates that Article 2 ranks as one of the most
fundamental provisions in the Convention, one which, in peace time, admits
of no derogation under Article 15. Together with Article 3, it enshrines one
of the basic values of democratic societies. The Court reiterates that the first
sentence of Article 2 enjoins the Contracting States not only to refrain from
the taking of life “intentionally” or by the “use of force” disproportionate to
the legitimate aims referred to in sub-paragraphs (a) to (c) of the second
paragraph of that provision, but also to take appropriate steps to safeguard
the lives of those within its jurisdiction (see Kleyn and Aleksandrovich v.
Russia, no. 40657/04, § 43, 3 May 2012, and Giuliani and Gaggio v. Italy
[GC], no. 23458/02, § 174, ECHR 2011 (extracts)).
114. The obligations on Contracting States take on a particular
dimension where detainees are concerned since detainees are entirely under
the control of the authorities. In view of their vulnerability, the authorities
are under a duty to protect them. The Court has accordingly found, under
Article 3 of the Convention, that, where applicable, it is incumbent on the
State to give a convincing explanation for any injuries suffered in custody or
during other forms of deprivation of liberty, which obligation is particularly
stringent where that individual dies (see Slimani v. France, no. 57671/00,
§ 27, ECHR 2004-IX (extracts)). In the absence of such explanation, the
Court can draw inferences which may be unfavourable for the Government
(see El-Masri v. the former Yugoslav Republic of Macedonia [GC],
no. 39630/09, § 152, ECHR 2012, and Mikheyev, cited above, § 102).
115. The Court also reiterates that Article 2 may imply in certain well-
defined circumstances a positive obligation on the authorities to take
preventive operational measures to protect an individual from the acts of
another individual or, in certain particular circumstances, from himself or
herself (see Tanribilir v. Turkey, no. 21422/93, § 70, 16 November 2000;
Keenan v. the United Kingdom, no. 27229/95, § 89, ECHR 2001-III; and
Opuz v. Turkey, no. 33401/02, § 128, ECHR 2009).
However, this obligation must be interpreted in a way which does not
impose an impossible or disproportionate burden on the authorities, without
LYKOVA v. RUSSIA JUDGMENT 13
§ 93, ECHR 2010; and Mustafa Tunç and Fecire Tunç v. Turkey [GC],
no. 24014/05, § 182, 14 April 2015).
119. The Court must be especially vigilant in cases where violations of
Articles 2 and 3 of the Convention are alleged (see, mutatis mutandis,
Ribitsch, cited above, § 32). When there have been criminal proceedings in
the domestic courts concerning those same allegations, it must be borne in
mind that criminal-law liability is distinct from international-law
responsibility under the Convention. The Court’s competence is confined to
the latter. Responsibility under the Convention is based on its own
provisions which are to be interpreted in the light of the object and purpose
of the Convention, taking into account any relevant rules or principles of
international law. The responsibility of a State under the Convention,
arising for the acts of its organs, agents and servants, is not to be confused
with the domestic legal issues of individual criminal responsibility under
examination in the national criminal courts. The Court is not concerned with
reaching any findings as to guilt or innocence in that sense (see Giuliani and
Gaggio, cited above, § 182, and Avşar v. Turkey, no. 25657/94, § 284,
ECHR 2001-VII).
fall from the fifth floor and thus as refuting the allegations of ill-treatment...
However, as the Court has noted above, this report indicates that the
forensic doctor found the presence of injuries which were unrelated to the
fall from the window and which are generally attributed to acts of struggle
or self-defence. In addition, the Court considers that it is appropriate to have
regard to the explanations provided by P., who described, in a detailed and
coherent manner, the violence perpetrated against Sergey Lykov and
himself. The Court sees no reason to call into question the testimony by P.:
his account is consistent with the nature and position of the injuries
identified on Sergey Lykov’s body (see paragraphs 38 and 39 above).
Moreover, as the Court has established above, from September 2009, that is,
before the autopsy report was submitted, witness P. gave the relevant
domestic authorities several opportunities to verify his allegations, including
those concerning Sergey Lykov (see paragraphs 39, 42 and 46 above).
However, on each occasion the relevant authorities ignored his complaints
and proposals to provide witness statements ...
Lastly, the Court considers that the applicant’s version is all the more
credible in that the authorities have never – either at the domestic level, or
in the proceedings before this Court – provided an explanation for those
injuries that were not sustained by Mr Lykov as a result of the fall.
123. The Court further observes that the decision to close the
investigation (see paragraph 18 above) was based on statements containing
obvious contradictions, especially with regard to the chronological sequence
of events (see paragraphs 19, 20 and 22 above). The Court notes in this
respect that the investigative authorities failed to re-establish the exact
chronology of the events occurring between the arrest of P. and the
applicant’s son and the latter’s throwing himself from the window, and to
resolve the contradictions between the various statements.
124. In those circumstances, the Court is not convinced by the version
advanced by the Government – namely, that all the injuries resulted from
Mr Lykov’s suicide. The Government have not submitted sufficient
information to suggest that the observed injuries which were not attributable
to the fall originated in something other than the infliction of ill-treatment in
the police premises on the afternoon and evening of 9 September 2009. In
consequence, the Court considers it established that Sergey Lykov was
subjected to treatment contrary to Article 3 of the Convention.
125. In addition, the Court has already held that there is no more
important safeguard against ill-treatment than the requirement to record
without delay all information relating to a person’s arrest in the relevant
custody ledgers (see Timurtaş v. Turkey, no. 23531/94, § 105, ECHR
2000-VI). It reiterates that the three relevant rights – the right of the person
detained to have the fact of his detention notified to a third party of his
choice, the right of access to a lawyer, and the right to request a medical
examination by a doctor of his choice – must apply as from the very outset
16 LYKOVA v. RUSSIA JUDGMENT
Government agree on the fact that the victim threw himself from the
window. They disagree only on the question whether this action was sudden
and unforeseeable by the police officers, so that the authorities are
exonerated of all liability, or whether this act was a gesture of despair
provoked by the ill-treatment. The Court considers it necessary to focus on
the question of whether the authorities could be held responsible for the
victim throwing himself from the window.
129. In considering persons who are detained or placed in police
custody, and thus in a relationship of dependence comparable to that in
which Mr Lykov found himself, the Court has accepted a positive obligation
to protect the individual, including against himself. In addition, even where
there is insufficient evidence to enable the Court to find that the authorities
knew or ought to have known that the detained person was at risk of suicide,
police officers must take certain basic precautions in order to minimise any
potential risk (see Keller, cited above, § 82, and Mižigárová, cited above,
§ 89).
130. In the present case the Court does not find it necessary to establish
whether or not the authorities who arrested Mr Lykov had information about
the existence of personal circumstances liable to push him to suicide, which,
were it available, ought to have encouraged them to act in such a way as to
prevent a possible suicide attempt. The Court considers that the victim’s
vulnerability at the precise moment when he threw himself from the
window resulted, first and foremost, from the torture to which he had been
subjected by the police officers. The Court has already had to assess a case
in which the ill-treatment inflicted was of such intensity that it pushed the
victim to throw himself from a window to escape his suffering (see
Mikheyev, cited above, § 135). In the present case, the Court has established
that Mr Lykov had been tortured in the presence of P. (see paragraph 127
above). In addition, it cannot be excluded that the victim was tortured
afterwards, in so far as P. claims to have heard his cries throughout the
following hour (see paragraph 8 above). Moreover, the Court also notes that
during this period Mr Lykov confessed and threw himself from the window
(see paragraphs 11 and 12 above). The Court notes that the victim entered
the building alive and died on account of the fall from the fifth floor of the
police station. Firstly, the Court considers that the Government’s version of
suicide for personal reasons is not satisfactory. It failed to take account of
the established fact that the applicant was being tortured (see
paragraphs 120-127 above), or of his unrecorded detention ... Secondly, the
Court cannot draw any decisive conclusion from the investigation, which it
has found to be ineffective (see paragraph 109 above). Accordingly, having
found that neither the Government nor the national investigation have
provided a satisfactory explanation for the victim’s death, the Court
considers that the Russian authorities are responsible for Sergey Lykov’s
fatal fall from the window.
18 LYKOVA v. RUSSIA JUDGMENT
131. The Court reiterates that its jurisdiction is limited to ruling on the
State’s responsibility under the Convention; the individual liability of the
individuals involved is a matter for the domestic courts alone. In
consequence, the Court considers that it is not for it to discuss in the present
case the individual liability for negligence of any police officers present in
view of their insufficient supervision of the victim’s conduct.
With this clarification, the Court is of the view that the Russian
authorities must be held responsible, having regard to the Convention, for
the death of Mr Lykov, who was tortured during a period of unrecorded
detention, when he was deprived of all the rights which should normally
have been afforded to persons in custody (see paragraph 125 above).
(c) Conclusions
132. The above considerations are sufficient for the Court to be able to
conclude that there has been a substantive violation of Article 2 and
Article 3.
...