European Court of Human Rights communicates case concerning torture of a gay man in Chechnya
The applicant, Mr Lapunov, alleges that he was detained by the police and subjected to systematic torture solely because of his sexual orientation.
The Russian authorities, who subsequently considered the allegations, concluded that there was insufficient evidence to support Mr Lapunov's claims and did not open a criminal investigation.
Given the disputed facts, the first question the Court is asking the parties is: was Mr Lapunov subjected to the ill-treatment he alleges? To answer this question, there are various pieces of evidence in play, including medical examinations, lie-detector tests, and witnesses.
Establishing whether Mr Lapunov was subjected to the ill-treatment he alleges is key because, if the Court decides that he was, it is unlikely it would reach any other conclusion that Mr Lapunov has suffered a violation of his Convention rights, most significantly in respect of Article 3 of the Convention (prohibition of torture).
The Court will also consider whether the Russian authorities' decision not to open a criminal investigation amounted to a violation of the Convention.
The facts are fairly complex and, for this reason, I have copied them verbatim from the Court's file (although references to "2012" in the file appear to be errors, and should probably be read as "2017").
It is worth reading closely the facts relating to why the Russian authorities decided not to open a criminal investigation into the allegations made by Mr Lapunov and to question how plausible these are...
STATEMENT OF FACTS
1. The applicant, Mr Maksim Grigoryevich Lapunov, is a Russian national, who was born in 1987 and lived in Omsk and Perm Regions, Russia. After the events described below he left the country. He is represented before the Court by Ms O. Sadovskaya, a lawyer practising in the town of Nizhniy Novgorod.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background
3. The applicant is a homosexual person, who is open about his sexual orientation. When he moved to Chechnya in 2015 he did not hide his sexual identity or mentioned it without necessity. He had an event organisation business and sold party balloons in the town of Grozny.
4. According to media reports, including the Russian newspaper Novaya Gazeta, in February-March 2017 a large-scale campaign of persecution against LGBTI started in Chechnya.
2. Arrest of the applicant’s acquaintance and his subsequent release from detention
5. At 8 a.m. on 6 March 2017 the applicant met his acquaintance, Mr E.Ts. Together they went to the applicant’s flat in the block of flats and stayed there until 10 p.m., when Mr E.Ts received a message via a social network and left the place. One minute later the applicant heard a scream from the street. Ten or fifteen minutes later he spoke with a neighbour, who said that unknown persons had apprehended Mr E.Ts. and forced him into a black Lada Priora car escorted by another car of the same model. Immediately thereafter the applicant telephoned Mr E.Ts., but the latter did not answer the call. Then the applicant reported the incident to a local police station.
6. At 00.30 a.m. on 7 March 2017 a man in a camouflage uniform with captain’s shoulder straps arrived at the applicant’s flat. The man identified himself as an investigator from the Leninskiy district police station and questioned the applicant, who provided him with the details of the aforementioned incident.
7. On 12 March 2012 one of Mr E.Ts.’s brothers told the applicant that Mr E.Ts. had been arrested and then released from detention with traces of beatings on his body. At the relevant time Mr E.Ts. was at his home. His brother asked the applicant to cease any contacts with Mr E.Ts.
3. The applicant’s arrest, ill-treatment in custody and his subsequent release from detention
8. On 16 March 2012 the applicant was selling balloons on the street in the vicinity of Grand Park in Grozny, a place with many street vendors surveyed by a CCTV camera.
9. In the evening, at about 7 p.m., Mr E.Ts. came to the applicant and had a short conversation with him. Two hours later an unknown person (Mr M.) approached the applicant, took him under his arm and dragged him in the direction of a road. Immediately thereafter other unknown person took the applicant by the other arm. The applicant started to scream asking for the explanations. The men replied that they would “explain everything” in a police station.
10. Around fifty street vendors intervened asking the men to release the applicant, but the men dragged him to a grey VAZ model car parked nearby. Two other persons came out of the car and forced the applicant inside. The car’s door handles were removed, so the applicant could not escape.
11. Having heard the screams four police officers appeared at the place. A man, who had apprehended the applicant, showed them his professional identity card. The police officers noted the applicant’s personal details and the car’s registration plates and left.
12. In the meantime the applicant attempted to make a telephone call, but his mobile telephone was seized by the abductors. The applicant understood that they were police officers. They did not show him their documents, but told him that he was suspected of a murder.
13. Ten minutes later they arrived at a building located behind gates with the Ministry of the Interior’s signs on them. Having put a hood on the applicant’s face to prevent him from seeing the inside of the building the four men escorted him to an office. An unknown person was inside. His portrait was on the wall next to a portrait of the Chechen president, Mr R. Kadirov.
14. The aforementioned person took the applicant’s mobile telephone and read the content of the applicant’s personal messages. He asked the applicant if he had understood the reasons for the arrest. When the applicant answered in the negative, the men read out several messages sent by the applicant to a man. From its wording it was obvious that the applicant was a homosexual. The men standing in the room accused the applicant of having come to Chechnya “to seduce Chechen boys” and ordered him to give up the contacts of the applicant’s sexual partners. When the applicant refused, the interrogator asked Mr M. and the other person involved in the applicant’s arrest, Mr I., to beat him up.
15. Mr M. and Mr I. took the applicant to another office. They insulted him referring to his sexual orientation and forced him to make a telephone call to a homosexual acquaintance arranging a meeting with him. The applicant gave up and telephoned Mr A. with whom he had had a sexual contact. Then, together with Mr M. and Mr I., he arrived at the meeting with Mr A. and saw Mr M. and Mr I. arresting Mr A.
16. After Mr A.’s arrest, the applicant together with him was taken to a basement floor of the building where the applicant had been previously interrogated. The basement floor had several cells. The applicant and Mr A. were put in two neighbouring cells.
17. The floor of the applicant’s cell was covered with blood. Pieces of cardboard served as a bed and a blanket; a bucket was used as a toilet.
18. On one of the following days the applicant saw Mr A. being beaten up with a piece of water pipe.
19. The next night on several occasions the applicant was visited by men who insulted him, shouted at him, beat him in the face, and threatened him with sexual abuse.
20. The next day two of the applicant’s guards armed with water pipes beat him up saying that they were punishing him for his homosexuality and for him having sexual intercourse with Chechens. One of the perpetrators tried to abuse him sexually, but the applicant resisted. Dozens of strokes with water pipe had been administered by the perpetrators on the applicant, particularly on his buttocks. The perpetrators hit his hand with a piece of water pipe. The blood from the hand stained the cell wall.
21. After the beatings the applicant was confronted with Mr A. During the session they were forced to describe the details of their sexual intercourse. It was their last meeting; the applicant presumes that Mr A. was killed by the officers.
22. The applicant lost sense of time. On the second or third day of his detention the applicant was forced to clean up cells in the basement. At that time he met Mr A.K., another prisoner who told him that he had also been apprehended for being a homosexual.
23. On the eleventh day of detention, 27 March 2017, Mr M. came to the applicant’s cell and said that the applicant had to go to his flat, pack his belongings and then leave Chechnya, returning to his home region.
24. The applicant’s guards put a bag on his face and brought him to his flat. They were unable to enter as someone had changed the lock on the door. Then they returned the applicant back to his cell.
25. Several hours later they brought the applicant to his flat again and opened the door. The applicant had ten minutes to pack his belongings. Thereafter he was returned to his cell again.
26. The next day, 28 March 2017, the applicant was brought to the man who had previously ordered Mr I. and Mr M. to extract information from him. That man threatened the applicant saying that the latter’s family would be dealt with shortly with if the applicant complained about his detention. Then the man put a gun in the applicant’s hand to have his fingerprints on it and forced the applicant to put his signatures on unknown documents and blank sheets of papers. The applicant did not read the documents which he signed. Then the applicant was forced to read out his personal details and information about his sexual orientation in front of an officer who filmed that with a mobile telephone’s camera. The applicant was also forced to give information about his friends’ addresses. One of the investigators who were present in the room was called Mr S.
27. Then the applicant was taken to a train station. The perpetrators gave him a ticket to the town of Pyatigorsk in the neighbouring region, but instead of departing to that town he visited the families of prisoners he had met in detention and informed them about the fate of their relatives.
28. The applicant did not contact medical authorities to have his injuries recorded because, according to him, he was afraid that the doctors would report the incident to the police and the perpetrators of his abduction would learn about that. Shortly after his release from detention he took several photos of his injuries with a mobile telephone’s camera.
29. In April 2017 the applicant left Chechnya. He settled down in his relative’s house in the Perm Region.
4. Search for the applicant
30. On 23 March 2017 the applicant’s sister reported her brother’s disappearance to the Chechnya Ministry of the Interior. Mr S. was the investigator responsible for the case. According to him, on 25 March 2017 the applicant’s whereabouts had been established and he was taken to the Ministry of the Interior to give written explanations. The latter submitted that his mobile telephone had been out of order, he was busy with work and therefore he had not called his family. On the grounds of the above explanation the investigating authority issued a decision not to open a criminal case on 17 April 2017.
5. Pre-investigation inquiry
31. On 1 June 2017 the applicant asked a Russian NGO “Committee against Torture” to assist him in initiating criminal investigation into his unlawful arrest and ill-treatment between 16 and 28 March 2017.
32. On 29 August 2017 the applicant had a personal meeting with the High Commissioner for Human Rights of the Russian Federation, Ms T. Moskalkova, who then asked the deputy chief of the Russian Investigative Committee to investigate the incident. On the same date, 29 August 2017, the applicant lodged a request to the same effect on his own behalf.
33. The unit for very important cases of the Russian Investigative Committee in the North Caucasus Region was ordered to carry out a pre‑investigation inquiry into the applicant’s allegations.
34. On 29 and 30 September 2017 the applicant was questioned by an investigator of the aforementioned unit. The applicant submitted him a detailed account of his arrest and ill-treatment including names and appearances of the perpetrators and offered to join to the case file photographs of his injuries (see paragraph 28 above).
35. After the interview of 20 September 2017 the applicant asked the investigator to question witnesses of his abduction, alleged perpetrators, as well as the persons who had seen his injuries. The applicant also asked the investigator to examine in his presence the Grozny police station, seize recordings from CCTV cameras installed at its premises, and perform other investigative actions. Lastly the applicant applied for protective measures, primarily from the Chechen police officers. The latter application was dismissed by the investigator on 29 October 2017 on the grounds that there was no real threat to the applicant’s personal security.
36. On 6 October 2017 the applicant was examined by a medical expert, who found two groups of scars: (i) two scars on the applicant’s right palm and one on his right wrist which had been caused by contusions with a blunt object from eighteen to six months before the examination; and (ii) scars on the applicant’s forehead, left cheekbone, chin, lower back, left thigh, right shoulder, right palm and right feet which had been caused by cuts (right palm and right feet) or contusion with a blunt object (the remainder of the injuries) more than eighteen months before the examination.
37. On the same day the applicant underwent a lie detector test, the results of which were interpreted as indicating that he had not been detained in custody on the grounds of his sexual orientation for eleven days, or ill‑treated. On the basis of the test results a conclusion was made that he had reported the incident to avoid responsibility for a criminal offence.
38. On 10 October 2017 the investigator together with the applicant examined the place of the applicant’s alleged arrest near the Grand Park in Grozny. Then following the abductor’s route they arrived at the Chechnya Department of the Interior and examined its premises, including the basement, which had several isolated rooms.
39. On 11 October 2017 the investigator questioned Mr S. (the investigator responsible for the applicant’s search). His submissions are described in paragraph 30 above. Shortly afterwards the investigator identified two officers who had allegedly established the applicant’s whereabouts and took him to Mr S. They stated that the applicant had been found at the address of his residence and then taken to Mr S.
40. On 12 October 2017 the investigator requested the Grand Park to provide him with the CCTV recordings of 16 March 2017. The Grand Park replied that the recording had been deleted after the expiration of the twenty‑one days storage period.
41. On 20 October 2017 Mr E.Ts. was questioned. He said that he had not been detained by the police, nor had met the applicant on 6 or 16 March 2017.
42. On various dates in October 2017 the investigator telephoned the alleged witnesses of the applicant’s arrest, but they refused to appear or give evidence.
43. On 19 October 2017 the investigator questioned police officers on duty who had patrolled the Grand Park area on 16 March 2017. None of them had witnessed the applicant’s arrest.
44. On 20 October 2017 the investigator issued a decision not to open a criminal case into the events of 16-28 March 2017. He concluded that the applicant’s allegations had not been confirmed by the evidence collected.
45. On the same day, 20 October 2018, the investigator’s superior overruled the above decision for being premature, stating that not all potential witnesses of the alleged events had been questioned.
46. On 25 October 2017 the investigator questioned the medical expert, who had examined the applicant, about an object which could have caused the injuries noted by the expert. The expert said that it might have been a piece of water pipe.
47. On 1 November 2017 several officers of the Chechen Ministry of the Interior were questioned. They unanimously stated that the Chechen Ministry of the Interior was not equipped with CCTV cameras or cells for detention. They denied that the applicant or Mr E.Ts. had been detained on its premises.
48. On various dates in November 2017 the investigator questioned street vendors working at the Grand Park. None of them had seen the applicant’s arrest. Only one of them had heard about it.
49. On 21 November 2017 the investigator identified and questioned members of Mr A.’s family. They said that their son had been killed during an armed conflict with law enforcement officers in March 2017. His body had not been presented to them. Mr A.’s parents also submitted that in spring 2017 the applicant had contacted them to transmit some information about their son. However, he had not given them any clear or useful information.
50. On 22 November 2017 the investigator for the second time refused to open a criminal case into the applicant’s allegations.
51. Two days later the investigator’s superior overruled the above decision for being premature.
52. On 6 November 2017 several police officers underwent lie detector tests which indicated that they did not have information about the applicant’s ill-treatment. One of the officers was declared unfit for the testing as, according to him, he was suffering from a chronic illness which caused pain to him. That could affect the accuracy of the test’s results.
53. On 29 November 2017 the applicant’s lawyer for the second time applied for the protective measures in respect of the applicant, who had received threats. The lawyer stated that if his request was granted he could go to Grozny, identify the perpetrators and find traces of his stay in the basement of the Chechen Department of the Interior. The investigator dismissed the request for being unsubstantiated by evidence on 29 December 2017. That decision was overruled by a higher investigative authority on 5 February 2018, but the investigator again refused to grant the applicant’s request on 8 February 2018.
54. On 25 December 2017 the investigator for the third time refused to open a criminal case into the applicant’s allegations.
55. On 10 January 2018 following a criticism from the investigator’s superior, who noted that the decision not to open a criminal case had been premature, the investigation was resumed.
56. On 15 January 2018 the investigator adduced to the case file a copy of the investigation file regarding an armed conflict of 30 March 2017 resulting in the death of “two members of illegal armed group” including Mr A.
57. On 9 February 2018 the investigator issued a refusal to open a criminal case, which was then overruled by a supervising authority on 19 February 2018.
58. On 20 February 2018 the investigators questioned a witness who had heard rumours about the applicant’s detention from the applicant’s colleague.
59. On 21 March 2018 the investigator issued a decision not to open a criminal case, concluding that the applicant’s allegations had not been confirmed by the evidence collected. The investigator also found that the applicant was not guilty of deliberately false denunciation as he had not identified the perpetrators.
6. Appeal against the decision not to open a criminal case
60. On an unspecified date the applicant appealed against the investigator’s decision not to open a criminal case. He alleged that the investigator had failed to take basic investigative steps, in particular, to attach photographs of the applicant’s injuries to the case file; to question witnesses who had seen them; to obtain from the mobile service operator information about the location of the applicant’s mobile telephone between 16 and 28 March 2017; to question Mr A.K. or officers who had been on duty at the entrance checkpoint of the Ministry of the Interior on 16 April 2017. The applicant stressed that the important investigative measures such as identification parade, witness cross-examination and others could have been carried out only in the context of an opened criminal investigation.
61. On 22 August 2018 the Essentuki Town Court dismissed the applicant’s claim. It found that the investigator had carried out a thorough inquiry into the applicant’s allegations and delivered a lawful decision within his competence.
62. On 12 September 2018 the applicant challenged the above decision on appeal before the Stavropol Regional Court, which dismissed his appeal on 26 November 2018 endorsing the finding of the lower court.
B. Relevant domestic and international material
1. Domestic law
63. For the relevant provisions of domestic law regarding the prohibition of ill-treatment and procedure for examining a criminal complaint see Lyapin v. Russia, no. 46956/09, § 96-102, 24 July 2014.
2. Documents by the Parliamentary Assembly and the Committee of Ministers of the Council of Europe
64. On 27 June 2018 the Parliamentary Assembly of the Council of Europe adopted Resolution 2230 (2018) “Persecution of LGBTI people in the Chechen Republic (Russian Federation)” which reads in the relevant part as follows:
“7. In the light of these considerations, the Assembly urges the Russian Federation to:
7.1. conduct an impartial and effective investigation into the persecution of LGBTI people in the Chechen Republic and ensure there will be no impunity for the perpetrators;
7.2. allow an independent international investigation by an international human rights organisation, should an investigation at national level not be pursued;
7.3. ensure the legal and physical protection of victims, their family members and witnesses of persecution of LGBTI people in the Chechen Republic;
7.4. implement the judgment of the European Court of Human Rights (the Court) in the case of Bayev and Others v. Russia and other relevant judgments, and repeal, as recommended by the Court, the law prohibiting the so-called promotion of non‑traditional sexual relationships among minors, which has contributed to reinforcing an overall climate of discrimination and prejudice against LGBTI people;
7.5. ensure the protection of human rights defenders throughout the country, including those working on the promotion and protection of the rights of LGBTI people;
7.6. authorise the publication of the report of the visit made by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) to the Chechen Republic in December 2017 and implement its recommendations without delay;
7.7. fully implement the recommendations of the European Commission against Racism and Intolerance (ECRI) in the context of its 5th monitoring cycle;
7.8. provide full support to the review process of Committee of Ministers Recommendation CM/Rec(2010)5 on measures to combat discrimination on grounds of sexual orientation or gender identity.”
65. On 27 June 2018 the Parliamentary Assembly of the Council of Europe also adopted Recommendation 2138 (2018) which reads in its relevant part as follows:
“2. ... the Assembly recommends that the Committee of Ministers:
2.1. call on the Russian Federation to comply with the recommendations laid down in Assembly Resolution 2230 (2018);
2.2. in the event of the Russian Federation failing to conduct an investigation within a reasonable lapse of time, consider launching a Council of Europe investigation into the campaign of persecution against LGBTI people which took place in 2017 in the Chechen Republic.”
66. On 9 January 2019 the Committee of Ministers at its 1333rd meeting adopted a reply to the above recommendation. In it relevant part it reads as follows:
“4. The Committee of Ministers notes with concern that hate crimes targeting LGBTI persons continue to be committed in Council of Europe member States. It points out that, in accordance with the requirements of the European Convention on Human Rights as interpreted by the Court, States have an obligation to carry out effective investigations and to take account of possible grounds of discrimination so that when such crimes are detected they do not go unpunished. States also have a positive obligation to protect the right to life of all persons placed under their jurisdiction and their right not to be subject to treatment in breach of Article 3 of the European Convention on Human Rights.
5. According to information provided by the Secretary General following his visit to the Russian Federation on 20 and 21 June 2018, the investigation into allegations of persecution of LGBTI persons in the Chechen Republic is still under way. The Committee of Ministers calls on the Russian Federation to carry out an immediate and transparent investigation into the reports of persecution of LGBTI persons in order to bring to justice those responsible and to ensure the safety of the LGBTI persons in the North Caucasus, as well as human rights defenders, journalists and other media workers reporting such violations and abuses.”
COMPLAINTS
The applicant complains under Article 3 of the Convention that he was subjected to ill-treatment by state agents between 16 and 28 March 2017 and that no effective investigation has been carried out in respect of his abduction and ill-treatment. The applicant points out several shortcomings of the investigation mentioned in the context of domestic proceedings (see paragraph 60 above).
He further complains under Article 5 § 1 of the Convention about his unrecorded detention between 16 and 28 March 2017.
Referring to Article 14 of the Convention the applicant states that his arrest and ill-treatment were based on homophobic motives.
Finally, he invokes Article 8 of the Convention without formulating any complaints under its head.
QUESTIONS TO THE PARTIES
1. Having regard to:
- the results of medical examination of the scars on the applicant’s body and photographs of his injuries allegedly taken by the applicant shortly after his release from detention; and
- the allegations about persecution of LGBTI people in Chechnya (see PACE Resolution 2230 (2018) “Persecution of LGBTI people in the Chechen Republic (Russian Federation)”, 27 June 2018):
(a) Was the applicant subjected to ill-treatment by state agents between 16 and 28 March 2017?
(b) If so, has there been a violation of the substantive limb of Article 3 of the Convention on account of the applicant’s ill-treatment by state agents between 16 and 28 March 2017?
2. Was the applicant deprived of his liberty between 16 and 28 March 2017, within the meaning of Article 5 § 1 of the Convention? If such detention took place, was it compatible with the guarantees of Article 5 §§ 1–5 of the Convention?
3. Having regard to the investigating authority’s refusal to open a criminal case into the applicant’s allegations of abduction and ill-treatment and their alleged failure to carry out the investigative steps mentioned by the applicant, have the domestic authorities carried out a prompt, thorough, independent and impartial investigation in compliance with the procedural obligations under Articles 3 and 5 of the Convention? In particular, did the investigating authority take into account difficulties in collecting evidence which may have appeared in that particular case? If so, did they take any measures to overcome those difficulties?
4. Has there been a violation of Article 14 of the Convention taken alone or in conjunction with Articles 3 and/or 5 thereof, on account of the alleged detention and ill-treatment of the applicant on the grounds of his sexual orientation and the domestic authorities’ decision not to open a criminal case into the incident?
The parties are requested to submit information about any new developments in the investigation and photographs of the applicant’s injuries which he allegedly took shortly after his release from detention.
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