The complainant is Shamil Guseinov, a national of the Russian Federation born in 1980. He claims to be a victim of a violation by the Russian Federation of his rights under articles 1 (1), 4 (1) and 15 of the Convention. The State Party has made the declaration pursuant to article 22 (1) of the Convention, effective from 1 October 1991. The complainant is not represented by counsel.
Facts as submitted by the complainant
On 14 February 2009, the complainant’s car was stopped and he was forced into another car by unknown people in the city of Majachkala. A black bag was placed over his head and he was handcuffed. Over the following three days, he was kept in an unknown location somewhere outside Majachkala. His abductors beat him on his head and body using their hands, their feet and a metal object. When he lost consciousness, the abductors poured cold water on him; the air temperature was below zero. He was also buried in the ground. All these actions were aimed at forcing him to confess guilt for the murder of the D. family, even though the complainant did not know any such family. The complainant agreed to confess and to show the abductors where the dead bodies had been hidden. He hoped that, when they went to Majachkala, which is where he said that the bodies had been hidden, he would be able to call for help at a police checkpoint. On 17 February 2009, the abductors agreed to let the complainant go free on the condition that he confessed to murdering the D. family. On the way to Majachkala, the complainant assumed that he had been abducted by the police, since his abductors had handcuffs, carried Makarov guns that were issued only to police officers and possessed detailed information about him and his family members. The abductors subsequently put the complainant in his car and left him. He managed to reach a road police post, where an ambulance was called and the complainant was taken to hospital.
On 15 February 2009, while the complainant was missing, his brother, G.M.M., filed a report with the police suggesting that the complainant had been abducted. On 17 February 2009, after his release from captivity, the complainant underwent a medical examination at the request of a police investigator, M.A.V. In report No. 438, issued on 18 February 2009, a medical expert concluded that the complainant had numerous bodily injuries, such as bruises on various parts of the body and concussion, which amounted, according to the expert, to mild harm to health. After the medical examination, the complainant left Majachkala to live with relatives in their village, as he was concerned about his health and life.
On 27 February 2009, investigator M.A.V. requested the complainant to come for a meeting in connection with the criminal investigation into his abduction. When he arrived at the investigator’s office with his brother and cousin, officers of the Ministry of Internal Affairs arrested him; he noticed immediately that they were the same people who had abducted him on 14 February 2009. His brother and cousin were released later on, he subsequently learned. The complainant was brought to the office of the Ministry of Internal Affairs of Dagestan, where he was interrogated about the murder of the D. family. He was taken to see Colonel M.I., who immediately accused him of being a murderer and started to beat him with his fists. Over the following three days, the complainant was subjected to beatings by several officers of the Ministry of Internal Affairs. On 1 March 2009, the complainant signed a confession admitting to the murder of the D. family; a defence lawyer was invited to attend only once the interrogation had almost finished. The lawyer was not chosen by the complainant, but rather was appointed by the case investigator. The lawyer did not pay attention to the complainant’s state and did not speak with the complainant. Subsequently, the complainant filed a complaint against this lawyer, who did not provide any legal assistance and, instead, signed all of the papers provided by the investigators and did not ask the complainant about the blood and bruises on his body.4
- The complainant filed a complaint against this lawyer’s inaction with the Chamber of Advocates. He was informed that the Chamber had found the lawyer responsible for not providing legal aid to the complainant. ↩
On 2 March 2009, the complainant was transferred to a temporary isolation ward, where he underwent a medical examination. The numerous bruises and abrasions were recorded in the journal of medical examinations. On 5 March 2009, the complainant was transferred from the temporary isolation ward to another pretrial detention facility. There, the complainant was also examined, and an X-ray identified that he had two broken ribs. From 11 March 2009, the complainant tried to contact the investigator, N.U.V., to inform him that he had been forced to make a confession under duress on 1 March 2009. That investigator visited him in the pretrial detention facility but refused to consider his complaints of torture. After this meeting, unknown people visited the complainant and threatened him with death if he continued to complain.
On 26 March 2009, based on the complainant’s lawyer’s request, investigator N.U.V. ordered a court expert to conduct an assessment of the complainant’s injuries. In his report No. 837, dated 27 March 2009, the expert indicated numerous bodily injuries that amounted to mild harm to health. On 9 April 2009, the complainant was informed about the opening of a criminal case based on his complaint. However, the investigator invoked article 115 of the Criminal Code of the Russian Federation – intentional infliction of injury – but not article 302 of the Criminal Code – coercion to testify, which is considered a more serious crime and carries a stricter punishment.
On 19 May 2009, the defence lawyer, M.G.V., and the investigator, N.U.V., visited the complainant in the pretrial detention facility. The complainant repeated all the information regarding the events that occurred between 14 and 17 February and 27 February and 1 March 2009. After that meeting, the complainant saw the investigator, N.U.V., one more time, when the investigator informed him, unofficially, that he could not help him. On an unknown date, N.U.V. was replaced with another investigator, M.G.M. On 17 February 2010, the new investigator decided to split the criminal case in two, with a separate case relating to the information on the use of violence against the complainant by the officials from the Ministry of Internal Affairs. However, the complainant claims that this move was just a formality.
On 1 March 2010 and 27 May 2010, during the trial, the defence lawyer, M.G.V., filed a request to the court for the confession of 1 March 2009 to be found inadmissible, as it had been obtained under torture, but the request was denied. On 21 June 2010, the complainant was sentenced to life imprisonment for the murder of the D. family. On 29 June 2010, the complainant filed a cassation appeal with the Supreme Court of the Russian Federation, in which he stated that his confession had been obtained under torture. The complainant filed more than 10 complaints under the supervisory review procedure, stating the same information; however, they were all rejected, without being considered on the merits.
Since 18 January 2011, the complainant has sent numerous complaints to the Investigative Committee of the Russian Federation, the Office of the Prosecutor of Dagestan and the Office of the Prosecutor General of the Russian Federation. All the responses he received were the same: that his complaints had been investigated and that it had been decided that a criminal case would not be opened owing to the lack of corpus delicti. On 29 November 2010, the complainant’s brother sent an application to the European Court of Human Rights, which was found inadmissible5 on 15 September 2016.
- 2 The complainant submitted a copy of this one-page, single-judge decision, in which the Court finds the claims inadmissible under articles 34 and 35 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights). ↩
Complaint
The complainant claims that his rights under articles 1 (1) and 4 (1) of the Convention have been violated, since the State Party’s authorities have failed to proceed with the investigation of his torture allegations promptly and impartially. The complainant also claims that the State Party covers up torture committed by its police officers, by refusing to investigate their actions.
He also argues that article 15 of the Convention has been violated, since the State Party has not ensured “that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made”. The complainant and his lawyer complained about this during the trial, but their requests for this evidence to be found inadmissible were rejected.
State Party’s observations on admissibility and the merits
On 21 July 2020, the State Party provided its observations on admissibility and the merits of the complaint. The State Party submits that the complainant was arrested on suspicion of murdering four persons belonging to the same family. During the arrest, the complainant was read all his rights under the relevant provisions of the Code of Criminal Procedure of the Russian Federation. The complainant signed a document attesting to the fact that he understood these rights. The complainant was questioned as a suspect in the presence of a lawyer, E.V.E., and the complainant agreed to her presence. During the questioning, the complainant told the investigators about committing the murders in question, with specific details about disposing of the bodies. The purpose of the murder, the complainant told the investigators, was to take ownership of an apartment. During and after the interrogation, the complainant made no comments about the questioning process or the content of the reports that were drawn up. The lawyer’s presence was also documented in the records.
According to the State Party, on 6 March 2009, the complainant’s lawyer, M.G.V., submitted the findings of medical report No. 438, which showed some injuries, such as a bruise near the right eyebrow, bruising to the soft tissue on the face, a head concussion, bruises on the chest, iliac area and arms, and bruises and bleeding on his feet and abdomen. These injuries were caused by a blunt object. According to the complainant, on 14 February 2009, he was forced out of a car, taken to an unknown location and held for three days. During this time, his abductors beat him using their hands, their feet and a metal object; he was then released on 17 February 2009. The report was initially requested by the investigator in the case.
The State Party notes that, on 10 March 2009, the complainant was charged with the crime of murder, under article 105 of the Criminal Code of the Russian Federation. During a subsequent interrogation, the complainant recanted his previous testimony and complained that he had been tortured and “subjected to pressure”. The investigator on the case requested another medical examination of the complainant,6 with similar findings to those in report No. 438.
- The State Party provides no further details about this subsequent medical examination. ↩
Based on the complaint, dated 18 February 2009, regarding physical violence against the complainant, the Kirov District Police in the city of Majachkala initiated a criminal investigation. On 15 October 2017, this investigation was discontinued due to the fact that the underlying alleged crimes had become statute barred. This decision was not appealed. On 29 May 2009, during an additional investigation, the complainant indicated that he had been subjected to violence from 14 to 17 February 2009 by several police officers, and that these same officers had brought him to the building of the Ministry of Internal Affairs of Dagestan, where, using violence, they coerced the complainant to confess to the killing of the D. family.
The State Party submits that, on 17 February 2010, a decision was taken to launch a separate investigation into the complainant’s claims that he had been subjected to torture and violence. Several police officers were questioned, including three officers who had brought the complainant to the building of the Ministry of Internal Affairs. They confirmed that they had transported the complainant to the building so that he could provide explanations, but that, after being questioned by an investigator, A.L.I., the complainant had been released. On 19 February 2010, the prosecutor’s office decided not to launch a criminal investigation owing to a lack of corpus delicti, and the complainant was informed about this decision. However, this decision was not appealed by the complainant.
On 18 March 2020, the Investigative Committee of the Russian Federation for Dagestan decided to re-launch the preliminary investigation of February 2010, due to a “lack of completeness”. On 28 March 2020, the Investigative Committee again refused to launch a full criminal investigation, based on the absence of corpus delicti. The complainant’s request has been sent to the Main Investigative Committee of the Russian Federation for the North Caucasus Federal District, where it is currently pending.
The State Party notes that during the pretrial hearing, on 2 March 2010, the complainant informed the Supreme Court of Dagestan that he would like his case to be heard by a trial jury. His counsel, M.G.V., petitioned the court to find the complainant’s confession to be inadmissible evidence. This petition was rejected on 2 March 2010. The court stated that there was no evidence that the three persons who had detained and tortured the complainant were in fact police officers. Based on these documents, it was only evident that the complainant had been subjected to violence by three unknown persons and that a preliminary examination was being carried out. The court also indicated to the lawyer that he could provide further evidence to support his position and re-submit his petition for the evidence to be found inadmissible. Counsel re-submitted the petition on several other occasions during the trial, and all of them were rejected.
The State Party submits that, during the trial, the complainant, in violation of the established procedural rules, informed the members of the jury that he had been tortured. According to the State Party, the court only allowed evidence that was found relevant to the case and that was admissible. In addition to the testimony of the complainant, the court examined physical evidence, such as blood spots at the apartment that belonged to the D. family. The prosecution also told the members of the jury that the complainant had sold said apartment using fake documents. By its verdict, the jury found the complainant guilty of murdering four persons, fraud, producing falsified documents and theft. The Supreme Court of the Russian Federation, on cassation appeal, upheld the lower court’s findings and, inter alia, rejected the claims by the complainant that he had been subjected to violence to obtain his confession. The Supreme Court of the Russian Federation further rejected the supervisory appeal requests submitted by the complainant, on 3 July 2017, 3 March 2018 and 29 July 2019.
In conclusion, the State Party submits that, at the time of writing, there is no “objective information” that could support the claims made by the complainant regarding violence that he was subjected to in order to obtain his confession. It cannot be excluded, however, that the examination of these claims that is being carried out by the Main Investigative Committee of the Russian Federation for the North Caucasus Federal District could produce a decision.7
- No further information is provided. ↩
Complainant’s comments on the State Party’s observations on admissibility and the merits
On 10 August 2020, 11 and 24 May 2021 and 25 January 2022, the complainant submitted his comments on the State Party’s observations on admissibility and the merits. The complainant reiterates his allegations that, between 14 and 17 February 2009 and 27 February and 1 March 2009, he was subjected to torture, with a view to forcing him to confess his guilt in the murder of the D. family.
Regarding the State Party’s observations, the complainant indicates that, according to the State Party, he was arrested on 1 March 2009 pursuant to articles 91 and 92 of the Code of Criminal Procedure, since the “aggrieved person”, W.I.T., identified him as the perpetrator of the crime. The complainant explains that, under article 91 of the Code of Criminal Procedure of the Russian Federation, “aggrieved persons or eyewitnesses” are those who were personally present at the crime scene during the commission of the crime. The complainant points out that W.I.T. was not personally present at the crime scene during the commission of the crime, nor was he recognized as an “aggrieved person” as of 1 March 2009. Therefore, the complainant could not have been arrested in accordance with articles 91 and 92 of the Code of Criminal Procedure of the Russian Federation, contrary to the State Party’s allegations.
The complainant notes that he does not remember being subjected to a personal search in the presence of lay witnesses, despite the State Party’s allegations to the contrary. Moreover, the complainant explains that his defence lawyer could not have missed multiple wounds, bruises and red spots resulting from the complainant’s torture during his interrogation. The complainant concludes that the absence of any remark by the defence lawyer in the records of interrogation regarding the complainant’s obvious injuries confirms that the defence lawyer did not, in fact, participate in his interrogation.
The complainant further submits that the internal investigation into his torture allegations noted by the State Party was neither timely nor reliable and that the investigator merely covered for the police officers responsible for the complainant’s torture. Moreover, according to the complainant, he was threatened with physical violence by the investigator, M.A.V., and the police officers for complaining about his torture to higher authorities; those individuals also threatened to change the criminal case status of his wife, so that she would appear as the complainant’s accomplice.
The complainant submits that, contrary to the State Party’s assertions, he could only properly inform the members of the initial jury of the fact that he had confessed his guilt under torture. However, this initial jury was disbanded, and it was the second, new jury that eventually found the complainant guilty. The complainant explains that he was unable to convince the new jurors of his innocence, owing to his removal from the courtroom. Moreover, the presiding judge refused to examine some of the evidence, which would have corroborated the complainant’s torture allegations before the jury. The complainant additionally indicates that, according to the State Party, he submitted supervisory review complaints three times. However, the number of supervisory review complaints submitted by the complainant exceeds 10, including after he submitted the complaint to the Committee. The complainant concludes that the State Party has not taken any effective measure with a view to identifying those responsible for his torture.
Consideration of admissibility
Before considering any complaint submitted in a communication, the Committee must decide whether it is admissible under article 22 of the Convention. The Committee has ascertained, as it is required to do under article 22 (5) (a) of the Convention, that the same matter has not been and is not being examined under another procedure of international investigation or settlement. The Committee notes, from the complainant’s submission, that, on 15 September 2016, the European Court of Human Rights, through a one-page decision, found his claims to be inadmissible, as the admissibility criteria set out in articles 34 and 35 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) had not been met, without providing any explanation as to the specific reasons that had led it to reach such a finding. The Court’s decision does not allow the Committee to verify the extent to which the Court examined the complainant’s application, including whether it conducted a thorough analysis of the elements related to the merits of the case. The Committee therefore considers that it is not precluded by article 22 (5) (a) of the Convention from examining the communication.8
- J.M. v. Netherlands (CAT/C/66/D/768/2016), para. 9.1; and J.I. v. Netherlands (CAT/C/66/D/771/2016), para. 9.1. ↩
In accordance with article 22 (5) (b) of the Convention, the Committee shall not consider any communication unless it has ascertained that the complainant has exhausted all available domestic remedies. The Committee notes that, in the present case, the State Party has argued that the complainant failed to appeal two decisions, dated 19 February 2010 (para. 4.5 above) and 15 October 2017 (para. 4.4 above), not to launch a criminal investigation into his claims that he had been subjected to violence and torture. The Committee notes, however, that the complainant has provided a clear record that establishes the fact that the complainant, in addition to his complaints to the prosecutor’s office and police, raised these claims during the trial and in his cassation and supervisory appeals. The Committee therefore finds that, in these circumstances, it is not precluded from considering the complainant’s claims under article 22 (5) (b) of the Convention.
The Committee notes that the complainant does not provide any arguments to explain how his rights under article 4 (1) of the Convention have been violated. The Committee therefore considers this part of the complaint to be ill-founded and declares it inadmissible pursuant to article 22 (2) of the Convention. The Committee finds the remaining part of the communication, which raises issues under articles 1 (1) and 15 of the Convention, sufficiently substantiated for the purposes of admissibility and proceeds with its consideration of the merits.
Consideration of the merits
The Committee has considered the communication in the light of all the information made available to it by the parties, in accordance with article 22 (4) of the Convention.
The Committee notes the complainant’s claim that, on 14 February 2009, he was abducted by three unknown persons, alleged by the complainant to be police officers, and was tortured for three days, inter alia, by being beaten, exposed to cold water and buried in the ground, to make him confess guilt for murdering four members of the same family. The Committee further notes the claims by the complainant that he was further tortured in the building of the Ministry of Internal Affairs of Dagestan, starting on 27 February 2009. Among the documents made available to the Committee are medical certificates Nos. 438 and 837, which were issued by forensic medical experts and which come to a similar conclusion – that the complainant had numerous bruises on his head, chest and abdomen, arms and feet, as well as brain concussion. These certificates conclude that the injuries were apparently caused by solid blunt objects, possibly within the time frame indicated by the complainant. On the basis of the information before it, and in the absence of a detailed explanation by the State Party, particularly related to the events that occurred in the building of the Ministry of Internal Affairs of Dagestan starting on 27 February 2009, the Committee concludes that the abuse and violence to which the complainant was subjected was perpetrated by officials of the State Party with the aim of obtaining a confession of guilt and that the acts in question constitute acts of torture within the meaning of article 1 of the Convention.9
- For example, Asfari v. Morocco (CAT/C/59/D/606/2014), para. 13.2; Jaïdane v. Tunisia (CAT/C/61/D/654/2015), para. 7.4; and Ndagijimana v. Burundi (CAT/C/62/D/496/2012 and CAT/C/62/D/496/2012/Corr.1), para. 8.2. ↩
The Committee notes the complainant’s claim that his self-incriminatory statements given under torture were retained as admissible evidence by the courts. In this regard, the Committee notes that the courts did not launch a prompt and impartial investigation of the claims by the complainant and, instead, relied on findings of the investigative authorities as fact and proceeded to treat the statements of the complainant as admissible evidence. The Committee further notes the State Party’s claims that it has not been proven that the three unknown men who tortured the complainant were police officers. The Committee notes, however, that the State Party failed to address the complainant’s claims that he was also tortured in the building of the Ministry of Internal Affairs of Dagestan. The Committee recalls that the general nature of the provisions of article 15 of the Convention derives from the absolute nature of the prohibition of torture and therefore implies an obligation for any State Party to verify that statements included in proceedings under its jurisdiction were not made under torture.10 The Committee considers that the State Party was under an obligation to verify the substance of the complainant’s claims.11 The Committee notes that the court did not address either the complainant’s claims about spending several days being tortured, first, by three unknown men and, afterwards, by police officers, all to force him to confess guilt in crimes that he alleges that he did not commit. In the light of the above, the Committee concludes that the Supreme Court of Dagestan, acting as a trial court, as well as the Supreme Court of the Russian Federation, acting as a court of cassation appeals, failed to assess thoroughly the complainant’s claims that his self-incriminatory statements were extracted under torture before presenting them as evidence to the jury. Thus, the Committee finds a violation of article 15 of the Convention.
The Committee, acting under article 22 (7) of the Convention, decides that the facts before it reveal a violation by the State Party of article 15, read in conjunction with article 1, of the Convention.
The Committee urges the State Party: (a) to initiate a thorough and impartial investigation into the complainant’s allegations, with a view to the prosecution, trial and punishment of anyone found to be responsible for acts of torture; (b) to provide the complainant with a retrial, in accordance with the principle laid out in article 15 of the Convention; (c) to provide the complainant with appropriate redress, including compensation for material and non-material damages, restitution, rehabilitation, satisfaction and guarantees of non-repetition; and (d) to ensure that no similar violations occur in the future.
Pursuant to rule 118 (5) of its rules of procedure, the Committee invites the State Party to inform it, within 90 days of the date of transmittal of the present decision, of the steps it has taken to respond to the above observations.