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FIRST
SECTION
CASE OF A.A. v. RUSSIA
(Application
no. 49097/08)
JUDGMENT
STRASBOURG
17
January 2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of A.A. v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer
Lorenzen,
Elisabeth Steiner,
Khanlar
Hajiyev,
Linos-Alexandre Sicilianos,
Erik Møse,
judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 13 December 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 49097/08) 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, Mr A.A. (“the
applicant”), on 10 September 2008. The President of the
Chamber acceded to the applicant’s request not to have his name
disclosed (Rule 47 § 3 of the Rules of Court).
- The
Russian Government (“the Government”) were represented by
Mr G. Matyushkin, Representative of the Russian Federation at
the European Court of Human Rights.
- On
5 July 2010 the President of the First Section decided to give
priority treatment to the application and to give notice of it to the
Government. It was also decided to rule on the admissibility and
merits of the application at the same time (Article 29 § 1).
THE FACTS
- The
applicant was born in 1945 and is serving a prison term in colony no.
6 in the Kirov Region.
I. THE CIRCUMSTANCES OF THE CASE
A. Alleged ill-treatment
1. The parties’ versions of the events
- The
applicant and several others were suspected of kidnapping a Mr K.
for ransom in the Dagestan Republic. The case was investigated by Mr
A., an investigator in the Khasavyurt town prosecutor’s office,
Dagestan Republic.
- On 23 April 2006 the applicant was arrested, apparently
by officers D. and Z., while he was driving a car in the town of
Khasavyurt. As noted in the arrest record, the arrest was recorded on
video. According to the applicant, a bag was placed on his head, he
was put into a police car and allegedly received several blows to the
head and stomach. He was then taken to the local Organised Crime Unit
(OCU). He was severely beaten up by several individuals, including
the above-mentioned officer Z. (the head of the OCU), and
subsequently remained at the OCU (see also paragraphs 11 and 20
below). Despite beatings, he refused to admit to the kidnapping or
any other offences.
- On
the same day, the applicant was interviewed in the OCU by
investigator A. The arrest record, which was signed by two attesting
witnesses, indicates that the applicant was suspected of kidnapping
and that his son had been notified of his arrest. The applicant made
the following statement in the record:
“I am not acquainted with the kidnapping
victim...I would like to see a lawyer and ask that all subsequent
investigative measures be carried out in his presence.”
The
applicant was provided with legal assistance at some point between
23 and 25 April 2006 (see also paragraph 9 below).
- Also,
on 23 April 2006 a search of his mother’s house, where the
applicant was living at the time, was carried out. Another search was
carried out some two weeks later.
- On 25 April 2006 the Khasavyurt Town Court remanded the
applicant in custody. The text of the court decision indicates that
the applicant and his counsel were present at the hearing. According
to the Government, during this hearing the defence made no
allegations of ill-treatment and no health-related complaints.
According to the applicant, he was not brought to this hearing from
the OCU.
- According to the Government, on the day of his arrest
the applicant was admitted to the Khasavyurt temporary detention
centre at the police station, where he was examined by a medical
assistant, who did not record any health complaints and did not
detect any visible injuries.
- According to the applicant, he was kept until 9 May
2006 at the OCU premises, except for two or three days in solitary
confinement in the temporary detention centre (apparently on 7 or 8
and 9 May 2006). The police station, the OCU and the temporary
detention centre were, at the time, located in the immediate
vicinity. According to the applicant, the beatings continued in the
OCU until 9 May 2006. He remained handcuffed all the time; for
extended periods of time he was attached to a radiator by the
handcuffs. He sustained fractures of his right arm and one of his
legs (see also paragraph 46 below). He was not given any food or
drink and was not allowed to sleep. The applicant was forced to sit
on a bottle on at least three occasions, which provoked acute
bleeding from the anus. He was also forced to stand in a position of
doing the splits, while his arms remained handcuffed behind his back.
The applicant was sexually assaulted at night from 8 to 9 May
2006. OCU head officer Z. and investigator A. brought in three
relatives of the kidnapping victim, who had been told that the
applicant had kidnapped their relative. The applicant was beaten on
the kidneys and head with a plastic bottle filled with water; he was
hit on the legs with a shovel handle. His co-accused, Mr Ib., was
told to have sexual intercourse with him. Acts of torture were
photographed by one of the kidnap victim’s relatives. The
applicant was told that if he refused to confess, the photographs
would be distributed among his neighbours and other detainees. The
photographs were subsequently distributed in the remand centre and
were later examined at the trial (see below).
- According
to the applicant, officers of the temporary detention centre saw the
officers beating him up but took no action to put a stop to the
beatings or to alert the authorities. The applicant was not provided
with any medical assistance in the temporary detention centre, in
particular after 9 May 2006.
- The Government submitted written statements,
apparently made in 2010, by three officers of the temporary detention
centre, on duty at the time. They affirmed that no force had been
used against the applicant in that detention facility; and that the
logbooks recording detainees’ admission to or departure from
the detention centre and the police station had been destroyed during
an explosion in the police station in 2009. According to the
Government, the applicant had been taken from the detention centre
for measures connected with the investigation but had not had any
contact with OCU officers. According to the Government, emergency
services were called to examine the applicant when he complained of
stomach and kidney pains on 30 April and 9 and 10 May 2006; no
fractures were recorded. According to the applicant, he was examined
by paramedics in the presence of OCU officers, who attempted to put
pressure on them.
- According
to the applicant, his adolescent son was also arrested and detained
for three days. He saw the applicant in bad condition. He stated that
his wife was also kept in detention, with their young daughter.
- On
11 May (15 or 16 May according to the applicant) 2006 the applicant
was transported from the temporary detention centre to Khasavyurt
remand centre no. 3/5. He was then brought back to the temporary
detention centre because of his medical condition. However, the
applicant was admitted to the remand centre soon afterwards.
- According
to the applicant, in the remand centre he was kept in solitary
confinement. Due to his state of health after the alleged torture, he
was unable to walk or use the toilet. He was not provided with any
medical assistance. He also alleged that numerous injuries had been
recorded in the register of the remand centre, including fractures of
the right arm and right leg.
- The applicant’s medical file in the remand
centre indicates that on 11 May 2006 he complained of pain in
the chest, arms, legs and head; he had bruises on his body, showed
sensitive palpation in his cheekbone and hips; had bruises and
scratches on his hips; severe pain in the chest, especially in the
area of the costal margins; and soft tissue and bone bruising. It
does not appear from the record that the applicant was given any
medication. In the applicant’s submission, on several occasions
the investigator prevented emergency paramedics from providing the
applicant with medical assistance and refused to allow him to be
transferred to a hospital.
2. Complaints of torture lodged by the applicant and Mr
I.
- In
the meantime, on 9 May 2006 Mr I. was arrested in connection with the
kidnapping case and was interviewed by investigator A. After this
interview, Mr I.’s relatives complained that he had been
ill-treated. On 18 May 2006 the Prosecutor’s Office of the
Dagestan Republic
(“the regional prosecutor’s
office”) instituted criminal proceedings
(file no. 668130)
on charges of insult and abuse of power.
- According
to the applicant, he also complained to the regional prosecutor’s
office, the regional ombudsman and the regional office of the Federal
Security Service that he had been tortured. He did not specify the
details of the sexual assault he complained of, while naming among
his assailants chief officer Z. and investigator A., and asking the
authorities to carry out an investigation. He asked them to examine
photographs which had allegedly been taken during the ill-treatment
(see also paragraph 25 below).
- Unlike Mr I., the applicant was not granted victim
status in case no. 668130. However, on 19 May 2006 the
applicant, who was not assisted by counsel, was interviewed as a
witness and made the following written statement concerning the
events between 23 April and 11 May 2006:
“I was taken out of my car by force and brought to
the Khasavyurt OCU. I was taken up to a room on the second floor and
beaten up there. Four officers punched and kicked me. I was then
taken to the OCU Chief officer’s office, where I was forced to
put on a gas mask; I lost consciousness on several occasions. Later
on, I was taken to another room for questioning. After this, I
remained handcuffed to a radiator until the next morning, when I was
questioned by investigator A. Another man, K., who was apparently the
son of the kidnap victim, was also present. Mr A. put a gas mask on
my head and blocked the air flow; I lost consciousness on several
occasions while being beaten up by K.... the next day I was beaten up
by OCU officers, who used their hands, feet and a plastic bottle...I
can identify at least one of the officers...Later, I was again beaten
up by two OCU officers who had just arrived from Makhachkala...During
the night of 8 to 9 May 2006 I was beaten up again. I also heard
another person, Mr Ib., being tortured in another office...Mr A. told
me to sign some documents but I refused. I was taken into the room
where Mr Ib. was. There, I was told to kneel; A. hit me on the back
and told Ib. to have sexual intercourse with me. Ib. was told to take
off my and his trousers and to approach me from behind and bend over
me. I resisted and received a blow to the head from a bottle. K. took
photographs...”
- On
19 May 2006 the investigator dealing with case no. 668130
ordered that the applicant be examined by medical experts of the
regional Forensic Expert Office (see below).
- On
23 May 2006, for unspecified reasons, the regional prosecutor’s
office reassigned K.’s kidnapping case from investigator A. to
an investigator in the Investigations Department of the regional
prosecutor’s office under case no. 668493.
- On
25 May 2006 senior officer Z. was interviewed by an investigator of
the regional prosecutor’s office and denied torturing Mr I.
- As can be seen from a report dated 30 May 2006, the
applicant had been examined by a medical expert in the Forensic
Expert Office on 22 May 2006, when he had complained of pain in the
chest and hip. The expert identified two bruises measuring 8 x 6 cm
and 5 x 4 cm on the left side of the applicant’s chest.
According to the applicant, no check-up had been carried out on 22
May 2006 and the report was false.
- An expert report was commissioned on the photographs
submitted in I.’s torture case. The following descriptions were
given in the report, no. 4161 dated 8 June 2006. Photograph
no. 1 depicted a man lying on the floor, with his arms held
behind him by another person. Photograph no. 2 depicted a man
lying on the floor with another person’s genitals near his
face. Photograph no. 3 depicted a man lying on the floor with
his arms handcuffed behind him, his buttocks half exposed and a stick
near his anus. Photograph no. 4 depicted two men: one man lying
on the floor with his pants slightly down so that his genitals are
partly visible, and the other man bending over him. The report
describes the photographs as reproductions/computer screen captures,
photos 2 and 4 showing “indications of editing”. The
expert was not able to determine whether the photographs had been
taken in the police station or the OCU. Another report, issued by
another expert institution on 14 October 2006, concluded that
the photographs had not been edited.
- On
9 June 2006 the Internal Control Office of the Ministry of the
Interior carried out an inquiry in reply to a request from a Member
of Parliament. The inquiry concluded that senior officer Z. and two
officers had been interviewed and had denied torturing Mr I.
- According
to the Government, senior officer Z. and officer D., who had arrested
the applicant on 23 April 2006, could not be interviewed during the
inquiry because they had been killed on 20 June and 23 July 2006
respectively.
- In
July 2006 the applicant wrote to the regional prosecutor’s
office about ill-treatment. Receiving no reply, on 21 November 2006
he submitted another complaint.
- On 22 November 2006 the torture case (concerning
Mr I.) was reassigned from the regional prosecutor’s
office to the town prosecutor’s office. The criminal
investigation was suspended on 18 December 2006 for lack of a
suspect. However, on 22 December 2006 the regional prosecutor’s
office instructed the district prosecutor to continue the inquiry.
- By
a letter of 22 December 2006, the regional prosecutor’s office
notified the applicant that his complaint against investigator A. and
unlawful methods of investigation had been forwarded for examination
by the Khasavyurt prosecutor’s office.
- On
30 December 2006 the Khasavyurt prosecutor’s office suspended
the inquiry in I.’s case because no suspect had been
identified. According to the applicant, he first learnt about this
decision at the trial (see below).
- Having
received no information about the investigation into his allegations
of ill-treatment, the applicant complained to the Prosecutor
General’s Office. On 10 January 2007 the latter forwarded this
complaint for examination by the Khasavyurt prosecutor’s
office.
- On
14 September 2007 the applicant complained to the regional
prosecutor’s office that there had been no meaningful
investigation of torture, that the authorities had failed to examine
his earlier complaints, the presumption of innocence had been
violated and the jurors had been influenced by the mass media (see
paragraph 40 below). On 24 September 2007 the regional
prosecutor’s office forwarded this complaint to the Khasavyurt
prosecutor’s office. It appears that no reply was received.
- However,
by a letter of 10 July 2008 the Khasavyurt prosecutor’s office
notified the applicant that his complaints of ill-treatment were
unfounded and that they had already been examined at the trial and on
appeal against the jury verdict. The applicant received this letter
on 1 October 2008.
- No
proceedings were pending until 7 December 2009, when the Khasavyurt
town prosecutor issued an order to resume the preliminary
investigation in Mr I.’s torture case, and to investigate the
applicant’s allegations made before the European Court.
- As it appeared that no investigative measures had been
taken, the applicant complained to the Prosecutor General’s
Office. He submitted a handwritten copy of their letter dated 23 June
2010, which reads as follows:
“Indeed, during the stage of preliminary
investigation [the applicant] and another convict in the same
criminal case were subjected to violence at the hands of police
officers and relatives of the crime victim. This fact gave rise to
criminal proceedings initiated on 18 May 2006. The relevant case file
was examined by the trial court in the [applicant’s] criminal
case.
This notwithstanding, [the applicant] and I. stated at
their trial that violence applied to them had not resulted in false
testimony or admissions.”
- On 11 August 2010 Mr A., acting head of the
Khasavyurt inter-district investigations unit of the Investigations
Department of the regional prosecutor’s office (the
investigator A. mentioned above), considered that the Khasavyurt
prosecutor’s request was justified, in part because no
face-to-face confrontation had been carried out between the applicant
and Ib.; the medical doctor who had provided emergency assistance to
the applicant in the OCU, had not been interviewed; and officers of
the temporary detention centre had not been interviewed in relation
to injuries mentioned in the forensic expert report. In view of the
above, Mr A. quashed the decision of 18 December 2006 (see paragraph
29 above) and ordered an investigator in the Khasavyurt
inter-district investigations unit to resume the preliminary
investigation. According to the applicant, the newly-designated
official was subordinate in rank to Mr A., who had been implicated in
the allegations of torture made by the applicant and his co-accused.
- On
11 September 2010 the preliminary investigation was suspended for
unspecified reasons. On 8 October 2010 it was resumed but then again
suspended on 8 November 2010. By a letter of 14 December 2010
the Prosecutor General’s Office informed the applicant that his
allegations had been previously examined in I.’s torture case
and that further inquiries should be addressed to the Khasavyurt
prosecutor’s office, also noting that the applicant’s
application was pending before the European Court.
B. Criminal proceedings against the applicant
- On
25 April 2006 the Khasavyurt Town Court of the Dagestan Republic
remanded the applicant in custody as a suspect in the kidnapping
case. Separate preliminary investigations concerning kidnapping,
extortion, murder and unlawful handling of firearms were joined in
one case. In May 2006 the applicant was charged with kidnapping
(Article 126 of the Criminal Code).
- After the arrest of the applicant and his accomplices
their case received some press coverage. The applicant submitted an
article entitled “Who was the contract murder client?”,
which had been published in a regional newspaper, Dagestan
Argumenty i Facty, on 24 May 2006. Another article in similar
terms was published at the same period of time in Dagestanskaya
Pravda, another local newspaper. These publications relied on
statements allegedly made by a public official. The applicant was
treated in these publications as a “bandit” and a
“recidivist” convicted of murders and kidnapping.
- The
applicant and his counsel studied the materials of the criminal case
(twelve volumes), allegedly, for two hours on 23 December 2006. On 27
or 28 December 2006 the applicant had a heart attack. On
6 January 2007 he was provided with a copy of the bill of
indictment.
- Thereafter,
the criminal case against the applicant and his accomplices,
including Mr I. and Mr Ib., was listed for trial before the Supreme
Court of the Dagestan Republic. The applicant requested to be tried
by a lay jury. On 12 January 2007 the presiding judge held a
preliminary hearing, extended the defendants’ detention and
granted the applicant’s request for a trial by a lay jury. A
jury panel was formed. Apparently, at the time the applicant was not
aware of the publications in the press (see paragraph 40 above).
- The
transcript of the hearing indicates that the presiding judge made a
general direction requesting the jury not to follow any media
coverage of the trial; if they had already seen any press coverage of
the case they were instructed not to take account of the conclusions
drawn by the mass media.
- The
trial judge admonished the public prosecutor for mentioning the
applicant’s criminal record. The judge instructed the jury not
to take that information into account. The applicant was also
admonished for subsequently mentioning his own criminal record.
- In
the course of the trial the applicant admitted that that he had
unlawfully deprived the victim of his liberty, but pleaded not guilty
to the remaining charges.
- The presiding judge ordered the prosecution to submit
the criminal investigation file in relation to I.’s allegation
of torture. Instead, the prosecution read out a procedural summary
note concerning this file. The applicant stated that he had been
subjected to similar humiliating ill-treatment, which had been
photographed. The presiding judge also admitted to the file a letter
from the remand centre, apparently containing information concerning
the applicant’s injuries. The judge granted the defence’s
request and ordered a medical expert examination of the applicant, to
investigate his allegation that fractures had been inflicted on him
by torture. According to the applicant, a report compiled by the
expert indicated that the applicant had sustained arm and leg
fractures. No copy of this report was submitted to the Court.
- The applicant made a written statement accusing
investigator A. of torture. The presiding judge accepted the
statement, and ordered it to be forwarded to the appropriate
authority after the trial. In reply to the judge’s questions,
the applicant stated on several occasions that despite torture he had
not made any “false” admissions during the preliminary
investigation.
- The
court examined four photographs. The applicant affirmed that he was
shown in one of them, depicting two men. His co-accused Mr Ib. (the
other man in this photo) confirmed it. Ib. also affirmed that A. had
made him watch video recordings showing the applicant and I. being
ill-treated.
- During
the hearing on 5 June 2007 the applicant was removed from the
courtroom because of repeated misbehaviour. He was then brought back
after counsel’s concluding remarks and was allowed to conclude
his pleading.
- On
21 June 2007 the jury found the applicant guilty as charged and
sentenced him to twenty-five years’ imprisonment.
- It
appears that the car, which the applicant had used with the
permission of its owner, was seized during the investigation. At the
closure of the trial, the car was handed over to the victims in
settlement of their civil claims. It appears that the owner of the
car then sought compensation from the applicant and his next of kin.
The latter paid the owner a sum equal to the value of the car.
- The
applicant appealed against the verdict, seeking a retrial in another
region of Russia because, he submitted, it was impossible to ensure a
fair trial in Dagestan, particularly on account of the press coverage
of the first trial.
- On
15 May 2008 the Supreme Court of Russia upheld the verdict of 21 June
2007. According to the applicant, the appeal hearing, which was
carried out by video link, took no more than fifteen minutes.
- On
6 June 2008 the Supreme Court dismissed the applicant’s request
for supervisory review. The Supreme Court considered that it was not
shown that the jury had been aware of the publications in 2006 and
that it was not established that they had been unduly influenced by
these publications. The Supreme Court also considered that these
publications were not capable of prejudicing the impartiality of the
jury.
C. Conditions of detention and transport
- A
medical certificate issued in 2003 indicates that the applicant has a
Category 2 disability and was recognised as unfit for work (without
any period of limitation). He also has ischaemic heart disease,
hemiplegia (paralysis of part of the body) and some other conditions.
- From
25 April to 9 or 11 May 2006 the applicant was kept in a police
station or a temporary detention centre. From 9 or 11 May to
8 December 2006 he was detained in Khasavyurt remand centre no.
3. From 8 December 2006 to an unspecified date in March 2008 he was
detained in Makhachkala remand centre no. 1, allegedly in overcrowded
cells. From March to 5 June 2008 the applicant was detained in Moscow
remand centre no. 77/3.
- On
5 June 2008 the applicant was sent back to Makhachkala remand centre
no. 1. On his way back he was temporarily admitted to the medical
unit of a Volgograd remand centre. In Astrakhan colony no. 6 he was,
however, placed in an ordinary transit cell, which was, allegedly,
overcrowded. It appears that the applicant’s complaint to the
administration of the colony was not examined. Thereafter, the
applicant was transported for twelve hours in a “container”
measuring 1.7 m x 2 m, together with many other detainees. Upon his
arrival in Makhachkala remand centre no. 1 he was sent to a colony in
the Kirov Region, while his medical file containing the
recommendations for his treatment was, allegedly, replaced by a blank
one.
- On
an unspecified date, the applicant was transferred to colony no. 6
in the Kirov Region. He was admitted to a hospital on several
occasions in 2008 and 2009 and prescribed various types of
medication.
D. Correspondence with the European Court
- By
a letter of 14 October 2008, the European Court acknowledged receipt
of the applicant’s first letter to the Court. By a letter of
19 August 2009 the Court informed the applicant that his
recent request under Rule 39 of the Rules of Court had been rejected.
According to the applicant, the above letters were opened and
inspected before being handed over to him in unsealed envelopes.
- Allegedly,
in March 2009 the colony administration refused the applicant access
to his medical file and refused to issue any documents relating to
this file in the absence of an official request from a national
public authority or the European Court of Human Rights.
- On
10 March 2009 the applicant handed over the completed application
form to be dispatched from the detention facility to the Registry of
the Court. The application form was received by the Registry of the
Court on 15 May 2009. Allegedly, in 2010 the detention facility
staff refused to dispatch one letter to the Court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Use of force against detainees and investigation of
complaints
- Under
the Custody Act (Federal Law no. 103-FZ of 15 July 1995),
physical force may be used against a suspect or an accused in a
detention facility in order to put an end to an offence or his
resistance to lawful orders issued by public officials, if other
means prove to be inefficient (section 44 of the Act). Rubber
truncheons may be used to stop a detainee assaulting a public
official, to put an end to mass disorder or breaches of prison rules
committed in a group, to put an end to unlawful actions on the part
of the detainee if he resists a lawful order, or to prevent him from
causing damage to others (section 45). Handcuffs may be used to put
an end to unlawful actions on the part of the detainee if he resists
a lawful order, or to prevent him from causing damage to himself or
others (ibid).
- The
Federal Ministry of Justice’s decree no. 189 of 14 October
2005 provides that during admission to a remand centre a detainee
should be examined by a duty medical doctor or a medical assistant,
with the purpose of identifying health problems requiring isolation
from other detainees or urgent medical care. If there is reason to
believe that injuries identified on the detainee’s body could
have been caused by unlawful actions, the medical staff should
indicate this in the medical record and compile a separate note. An
inquiry should be carried out by a special unit. If there are
indications of a criminal offence the inquiry file should be
submitted to a prosecutor (section 16 of the Decree).
B. Code of Criminal Procedure (CCrP)
- Article
125 of the CCrP provides for judicial review of a decision or
(in)action on the part of an inquirer, investigator or prosecutor,
which has affected constitutional rights or freedoms. The judge is
empowered to verify the lawfulness and reasonableness of the
decision/(in)action and to grant the following forms of relief: (i)
to declare the impugned decision/(in)action unlawful or unreasonable
and to order the respective authority to remedy the violation; or
(ii) to reject the complaint.
- In
its Resolution of 10 February 2009 the Plenary Supreme Court of
Russia considered that it was incumbent on the judges to verify
before processing an Article 125 complaint whether the preliminary
investigation has been completed in the main case (point 9). If the
main case has already been set for trial or has been completed, the
complaint should not be examined unless it was brought by a person
who was not a party to the main case or if the complaint was not
amenable to judicial review under Article 125 at the pre-trial
stage of the proceedings. In all other situations, the complaint
under Article 125 should be left without examination and the
complainant be informed that he or she can raise the matter before
the trial or/and appeal courts in the main case.
- In
the same vein, according to the interpretation given by the
Constitutional Court, a complaint under Article 125 cannot be brought
or pursued after the criminal case to which the complaint is
connected has been submitted for trial. However, when it is
established that a party to the proceedings (including a judge or a
witness) has committed a criminal offence, thus seriously affecting
the fairness of the proceedings, the Code exceptionally allows for a
separate investigation of the relevant circumstances leading to a
reopening of the case (see Decision no. 412-O-O of 17 November 2009;
see also Ruling no. 13-П of 29 April 1998 and Ruling no. 5-П
of 23 March 1999 concerning respectively Articles 113 and 218 of the
RSFSR Code of Criminal Procedure before 1 July 2002).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that he had been subjected to torture in
detention and that no meaningful investigation had been carried out,
in breach of Articles 3 and 13 the Convention. The Court will examine
this complaint under Article 3 of the Convention. It reads as
follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
applicant argued that between 23 April and 9 May 2006 he had been
continually and severely beaten up by officers of the Organised Crime
Unit, had been sexually assaulted and humiliated, and had not been
provided with any medical assistance.
- The
Government argued that the investigation into the allegation of
torture was effective, since the national authorities had taken all
practicable investigative measures, given the death of the arresting
officers and the destruction of the relevant logbooks of the
temporary detention facility. As the investigation was not yet
complete, the applicant’s grievance was premature.
A. Admissibility
- The
Court considers that the examination of the Government’s
argument concerning exhaustion of domestic remedies is closely linked
to the merits of the applicant’s grievances concerning the
procedural aspect of Article 3 of the Convention. Thus, the Court
considers that the issue of exhaustion of domestic remedies should be
joined to the merits.
- The
Court also notes that this part of the application 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.
B. Merits
1. Alleged ill-treatment
(a) General principles
- The
Court reiterates that Article 3 of the Convention prohibits in
absolute terms torture and inhuman or degrading treatment or
punishment. In order to fall within the scope of Article 3, the
ill-treatment must attain a minimum level of severity, the assessment
of which depends on all the circumstances of the case, such as the
duration of the treatment, its physical or mental effects and, in
some cases, the sex, age and state of health of the victim (see,
among others, Ireland v. the United Kingdom, judgment of
18 January 1978, § 162, Series A no. 25).
- In
assessing evidence, the Court has generally applied the standard of
proof “beyond reasonable doubt”. However, such proof may
follow from the coexistence of sufficiently strong, clear and
concordant inferences or of similar unrebutted presumptions of fact.
Where the events in issue lie wholly, or in large part, within the
exclusive knowledge of the authorities, as in the case of persons
within their control in custody, strong presumptions of fact will
arise in respect of injuries occurring during such detention. Indeed,
the burden of proof may be regarded as resting on the authorities to
provide a satisfactory and convincing explanation (see Zelilof
v. Greece, no. 17060/03, § 44, 24 May 2007, and
Polyakov v. Russia, no. 77018/01, §§ 25 and 26,
29 January 2009).
- The
Court reiterates that where domestic proceedings have taken place, it
is not the Court’s task to substitute its own assessment of the
facts for that of the domestic courts, and, as a general rule, it is
for those courts to assess the evidence before them (see Klaas v.
Germany, 22 September 1993, § 29, Series A no. 269).
Although the Court is not bound by the findings of domestic courts,
in normal circumstances it requires cogent elements to lead it to
depart from the findings of fact reached by those courts (see
Matko v. Slovenia, no. 43393/98, § 100, 2
November 2006). Where arguable allegations are made under Article 3
of the Convention, however, the Court must apply a particularly
thorough scrutiny.
(b) Application of the principles in the
present case
- The
applicant provided a detailed account of physical ill-treatment at
the hands of, with the connivance of, or instigated by, agents of the
State after his arrest and during his detention between 23 April and
9 May 2006 (see paragraphs 6, 11 and 20 above). In particular,
according to the applicant, he was beaten up on numerous occasions;
he was forced to stand in a position of doing the splits, while his
arms remained handcuffed behind his back. He was sexually assaulted
and was forced to sit on a bottle, which provoked acute bleeding from
the anus. The applicant was beaten on the kidneys and head with a
plastic bottle filled with water; he was hit on the legs with a
shovel handle. Allegedly, he sustained fractures of his right arm and
one of his legs.
- While
for unspecified reasons the applicant failed to submit before the
Court any documentary evidence concerning his allegation of fractures
inflicted by ill-treatment (see paragraph 46 above), it was recorded
in the remand centre that on 11 May 2006 he had complained of
pain in the chest, arms, legs and head; he had bruises on his body,
showed sensitive palpation in the area of his cheekbone and hips; had
bruises and scratches on his hips; severe pain in the chest,
especially in the costal margin area; and had soft tissue and bone
bruising (see paragraph 17 above).
- It
is also noted, and is not in dispute between the parties, that the
applicant was arrested on 23 April 2006 in “good health”.
The Court also observes that there is no indication that the
applicant self-mutilated or resisted arrest, which might have
accounted for injuries. The applicant’s description of the
alleged ill-treatment is sufficiently detailed, and there is a clear
match between this description of the beatings and the injuries
identified. Moreover, as followed from a document submitted by the
applicant and uncontested by the Government, the Prosecutor General’s
Office had acknowledged that violence had been used against the
applicant (see paragraph 36 above).
- It
follows from the Government’s submissions that on the day of
his arrest the applicant was examined by a medical assistant, who did
not detect any visible injuries (see paragraph 10 above). Should this
finding be accepted as true and supported by appropriate evidence, it
remains unexplained why the applicant had injuries during his
admission to the remand centre on 11 May 2006. Moreover, it is noted
that emergency services were called to examine the applicant when he
complained of stomach and kidney pains on 30 April and 9 and 10 May
2006 (see paragraph 13 above). In view of the above considerations,
it is plausible that the injuries were inflicted during the
applicant’s detention.
- The
Court also considers that the medical evidence, together with the
fact that the alleged ill-treatment took place while the applicant
was within the authorities’ control in custody, created a
presumption of fact that the applicant was subjected to ill-treatment
at the hands of State agents and required the national authorities to
provide a satisfactory and convincing explanation as to how those
injuries could have originated.
- The
Court observes in that connection that the applicant’s
grievance was not properly assessed by any domestic courts, which
could have examined the available evidence. In fact, the national
authorities did not provide any plausible explanation for the
applicant’s injuries.
- Thus,
the Court accepts the applicant’s submission that he was
physically ill-treated by State agents. At the same time, the Court
does not find it necessary to assess whether the allegations of
sexual assault are true owing to the difficulty of proving them
in the absence of appropriate medical evidence (see, mutatis
mutandis, Yavuz v. Turkey, no. 67137/01, § 39,
10 January 2006).
- In
these circumstances and having assessed the available material,
including the available medical evidence, the Court considers it
established that between 23 April and 9 May 2006 the applicant
was subjected to physical ill-treatment and humiliation, which
amounted to inhuman and degrading treatment.
- There
has therefore been a violation of Article 3 of the Convention.
2. Alleged lack of an effective investigation
(a) General principles
- The
Court reiterates that where an individual raises an arguable claim
that he has been seriously ill-treated by agents of the State in
breach of Article 3 there should be a thorough and effective
investigation (see, among others, Assenov and Others v. Bulgaria,
28 October 1998, § 102, Reports of Judgments and Decisions
1998 VIII, and Gäfgen v. Germany [GC], no. 22978/05,
§ 117, 1 June 2010).
- While
not every investigation should necessarily come to a conclusion which
coincides with the claimant’s account of events, any
investigation should in principle be capable of leading to the
establishment of the facts of the case and, if the allegations prove
to be true, to the identification and punishment of those responsible
(see Mahmut Kaya v. Turkey, no. 22535/93, §
124, ECHR 2000-III, and Paul and Audrey Edwards v. the United
Kingdom, no. 46477/99, § 71, ECHR 2002-II).
- The
investigation into credible allegations of ill-treatment must be
thorough. This means that the authorities must make a serious attempt
to find out what happened and should not rely on hasty or ill-founded
conclusions to close their investigation or as the basis for their
decisions (see Assenov and others, cited above, § 103 et
seq.). They must take all reasonable steps available to them to
secure evidence concerning the incident, including eyewitness
testimony and forensic evidence
(see Tanrıkulu v. Turkey
[GC], no. 23763/94, § 104 et seq., ECHR 1999-IV, and Gül
v. Turkey, no. 22676/93, § 89, 14 December 2000). Also,
the Court has often assessed whether the authorities reacted promptly
to the complaints at the relevant time, consideration being given to
the date of commencement of investigations, delays in taking
statements and the length of time taken to complete the investigation
(see Labita v. Italy [GC], no. 26772/95, § 133
et seq., ECHR 2000 IV, and Indelicato v. Italy,
no. 31143/96, § 37, 18 October 2001). Any deficiency
in the investigation which undermines its ability to establish the
cause of injuries or the identity of the persons responsible will
risk falling foul of the applicable standard.
(b) Application of the principles in the
present case
- Turning
to the present case, the Court first observes, and it is common
ground between the parties, that the applicant’s injuries and
his allegations were sufficiently serious and credible to require an
investigation on the part of the national authorities.
- The
Court also observes that it is unclear when the applicant first
informed the national authorities of the ill-treatment allegedly
inflicted on him between 23 April and 9 May 2006. A person alleging
ill-treatment should not act in a way which prejudices any future
investigation. However, in the circumstances of the case the Court is
not prepared to draw adverse inferences from this delay (see, for
comparison, Shanin v. Russia, no. 24460/04, §§
64-68, 27 January 2011, and Andreyevskiy v. Russia,
no. 1750/03, § 55, 29 January 2009). The Court notes with
concern that on 11 May 2006, having recorded certain injuries on the
applicant’s body, the staff of the remand centre omitted to
initiate, without delay, a proper medical examination of the
applicant (see paragraph 17 above) or an inquiry, as required by
national law (see paragraph 63 above).
- Moreover,
despite an unequivocal and detailed allegation of ill-treatment made
by the applicant during an interview on 19 May 2006, no formal
inquiry was opened. Instead, after being interviewed as a witness in
relation to his co-accused’s allegations of torture, the
applicant was not given a different procedural status which could
have enabled him to participate effectively in an inquiry (see
paragraph 20 above). The Court considers that the applicant’s
right to participate effectively in the investigation was not
secured.
- In
fact, it transpires from the available material that the majority of
the measures taken at the domestic level did not directly relate to
the examination of the applicant’s complaint, which was
connected to the co-accused’s complaint but distinct from it in
various respects. In this context, the Court does not attach any
particular weight to the expert report dated 30 May 2006 (see
paragraph 24 above). Even assuming that the applicant had been taken
for examination to an expert institution on 22 May 2006, the findings
concerning the presence of two bruises on the applicant’s body
were not assessed by the domestic authorities. Nor was the expert
interviewed at any stage of the proceedings to dispel any doubts
about the examination procedure.
- The
Court reiterates in this connection that proper medical examinations
are an essential safeguard against ill-treatment (see Akkoç
v. Turkey, nos. 22947/93 and 22948/93, §§ 55
and 118, ECHR 2000-X). When a medical doctor writes a report after
examining a person who has alleged ill-treatment, it is important
that the doctor states the degree of consistency with the story of
ill-treatment. A conclusion indicating the degree of support for the
alleged description of ill-treatment should be based on a discussion
of different possible diagnoses (injuries not relating to
ill-treatment, including self-inflicted injuries and diseases)
(see
Barabanshchikov v. Russia, no. 36220/02, § 59,
8 January 2009).
- In
any event, bearing in mind the medical record of 11 May 2006 and the
report of 30 May 2006, it was incumbent on the national authorities
to respond to the applicant’s claim, which was clearly
credible, without undue delay and to provide a plausible explanation
for the applicant’s injuries. In that context, the Government’s
argument before this Court concerning the destruction of logbooks in
2009 is not convincing.
- The
Court also observes that no attempts to interview officers Z. and D.
were made after the authorities became aware of the alleged
ill-treatment. Nor were any OCU officers, police officers or staff of
the temporary detention centre or remand centre, or medical personnel
including emergency paramedics interviewed in connection with the
applicant’s allegations. No adequate assessment was made
in relation to his allegations of sexual assault. No clear attempt
was made to identify whether the applicant appeared in any of the
photographs at all.
- Furthermore,
the Court reiterates its finding made on a number of occasions that
the “investigation” in terms of Article 2 or 3 of the
Convention should be carried out by competent, qualified and
impartial experts who are independent of the suspected perpetrators
and the agency they serve (see Oğur v. Turkey [GC],
no. 21594/93, §§ 91 and 92, ECHR 1999-III, and
Ramsahai and Others v. the Netherlands [GC], no. 52391/99,
§ 325, ECHR 2007 II). In the Court’s view, it is
highly questionable whether any investigation by the Khasavyurt
prosecutor’s office could be independent and impartial. In
fact, the respondent Government did not deny the hierarchical,
institutional or organisational interdependence between officials
allegedly implicated in the ill-treatment (in particular, OCU
officers and investigator A.) and the authorities who had the task of
dealing with the applicant’s complaints, in particular the
Khasavyurt prosecutor’s office (see paragraph 37 above).
- Lastly,
even accepting that the domestic proceedings concerning the
allegation of torture raised by the applicant’s co-accused Mr
I. could be taken into consideration as regards the Government’s
argument concerning exhaustion of domestic remedies, the Court cannot
but observe that these proceedings were closed and reopened several
times between 2006 and 2010. These proceedings are still pending at
the stage of a preliminary investigation. In the absence of any
indication to the contrary and taking into account the findings made
in the preceding paragraphs, the Court finds that the Government had
sufficient time at their disposal to address the applicant’s
own grievances by means of the domestic investigation
(see
Maslova and Nalbandov v. Russia, no. 839/02, § 83, 24
January 2008). In view of the above, the Court finds that the
applicant has complied with the requirement to exhaust domestic
remedies, and rejects the Government’s objection.
- In
view of the foregoing, the Court concludes that there was no
effective investigation into the applicant’s allegation of
ill-treatment, in breach of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION
- The
applicant complained of a violation of the presumption of innocence
due to adverse statements allegedly made by a public official in
local newspapers. Article 6 § 2 of the Convention reads as
follows:
“2. Everyone charged with a criminal
offence shall be presumed innocent until proved guilty according to
law.”
- The
Government submitted that the impugned statements had been made in
2006. The applicant had been convicted in July 2007, whereas the
present complaint had been lodged in September 2008. The Government
concluded that the applicant had not complied with the six-month
time-limit under Article 35 § 1 of the Convention. In any event,
he had not raised the matter in any separate proceedings. As to the
substance of the complaint, the Government argued that the articles
did not contain any verifiable information concerning the official
source of affirmations contained therein. In any event, the applicant
had not made any allegations to the effect that the publications in
question had affected the trial court in his criminal case.
- The
applicant submitted that he had first learnt about the publications
in the newspapers only after the formation of the jury for his trial.
As soon as he had become aware of them, he complained to the trial
judge, but received no reply; his request for the withdrawal of the
trial judge had also been dismissed. He argued that his related
complaints in the course of the trial and on appeal against
conviction, as well as on supervisory review and on his separate
complaints before various authorities, had been dismissed with
reference to the absence of evidence that the jurors had effectively
read the publications. In the applicant’s view it was incumbent
on the authorities, including the trial judge or the public
prosecutor, to dispel doubts as to whether the jurors had become
aware of the statements made by a public official in those
publications and with extensive coverage on television, which had
both offended the presumption of innocence and his honour and
dignity. The applicant referred in that connection to the part of the
publications treating him as a “bandit”, a “recidivist”
convicted of murders and kidnapping.
- The
Court has first to determine whether applicant has complied with the
admissibility criteria. The Court observes at the outset that the
applicant first wrote to the Court on 10 September 2008, raising
complaints of torture, lack of an investigation and effective
remedies at the domestic level. He also referred in general terms to
the criminal proceedings against him and Article 6 of the Convention.
In his application form of 10 March 2009 he raised specific
grievances concerning the fairness of these proceedings, as well as a
complaint about a breach of the presumption of innocence on account
of public statements made by a public official after the applicant’s
arrest. A general reference to the trial and Article 6 of the
Convention in the first letter does not suffice in the circumstances
of the case for taking 10 September 2008 as the introduction
date (see, in a similar context, Pavlenko v. Russia,
no. 42371/02, § 94, 1 April 2010, and Allan v. the
United Kingdom (dec.), no. 48539/99, 28 August 2001). In
view of the above, the Court considers that the complaint concerning
the presumption of innocence was first raised in substance before it
on 10 March 2009.
- Even
assuming, in the applicant’s favour, that the appeal judgment
of 15 May 2008 in the applicant’s criminal case could have
been taken as the relevant final domestic decision in the chain of
domestic remedies to be exhausted before lodging an application
before this Court, the Court cannot but note that the matter was
raised before it nearly ten months after this court decision, that is
still outside the six-month time-limit in breach of Article 35 §
1 of the Convention. It has not been argued, and the Court does not
consider, that the applicant was not immediately aware of the
contents of the appeal judgment or could not obtain a copy in due
time before bringing a complaint before this Court.
- It
follows that this complaint has been introduced out of time and must
be rejected in accordance with Article 35 §§ 1
and 4 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained about the arrest and ill-treatment of his
next of kin; conditions of detention; various detention proceedings
and raised a number of complaint in relation to the trial.
Furthermore, he alleged that letters from the Court had been opened
and that the detention facility authorities had delayed the dispatch
of his application form. Lastly, the applicant complained that
law-enforcement officers had misappropriated a sum of money and that
his next of kin had had to pay a sum equal to the value of the car
seized by the authorities. The applicant referred to Articles 3, 5, 6
and 34 of the Convention, as well as Article 1 of Protocol No. 1.
- The
Court has examined these complaints as submitted by the applicant.
However, having regard to all the material in its possession, and in
so far as the matters complained of are within its competence, it
finds that these complaints do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols. It follows that this part of the application must be
rejected as manifestly ill-founded, pursuant to Article 35 §§
3 (a) and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 18,000 euros (EUR) in respect of pecuniary damage
and EUR 10,000,000 in respect of non-pecuniary damage.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, the Court notes that it has found a violation under
the substantive and the procedural heads of Article 3 of the
Convention on account of the applicant’s ill-treatment and the
authorities’ failure to carry out an effective investigation
into the matter. In these circumstances, the Court considers that the
pain, humiliation and frustration caused to the applicant cannot be
compensated for by the mere finding of a violation. Having regard to
the nature of the violation and making its assessment on an equitable
basis, the Court awards the applicant EUR 25,000 in respect of
non-pecuniary damage, plus any tax that may be chargeable.
B. Costs and expenses
- The
applicant also claimed EUR 5,000 for the costs and expenses incurred
before the domestic courts.
- The
Government contested this claim.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
rejects the claim for costs and expenses in the domestic proceedings.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Decides to join to the merits the Government’s
argument concerning exhaustion of domestic remedies in relation to
the alleged ill-treatment from 23 April to 9 May 2006 and
rejects it;
- Declares the complaint concerning the alleged
ill-treatment from 23 April to 9 May 2006 and the alleged lack
of an effective investigation into it admissible and the remainder of
the application inadmissible;
- Holds that there has been a violation of Article
3 of the Convention under its substantive aspect;
- Holds that there has been a violation of Article
3 of the Convention under its procedural aspect;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 25,000
(twenty-five thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, to be converted into Russian roubles
at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 17 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President
