CASE OF SALIKHOV v. RUSSIA
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Article 6-3 - Rights of defence) (Article 6 - Right to a fair trial;Article 6-3-d - Witnesses);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - award
Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
4. The applicant was born in 1965 and lived in Novosibirsk before his arrest. 5. The following facts are based on the documents produced by the parties and on the applicant’s submissions in so far as they have not been disputed by the Government. 6. At 8 p.m. on 22 June 2004 the applicant was arrested in the Chelyabinsk Region on suspicion of rape and placed in the interview room of the Uysk police station. At 10 p.m. Mr Zh., an investigator with the Uysk district prosecutor’s office, drafted an arrest record. 7. At about midnight on that day the applicant was taken out of the room into the corridor and told to hand over his underwear for examination by an expert. He replied that he was prepared to do that on condition that another pair of underwear was provided to him by the police or by his relatives. 8. Thirty minutes later Mr M., the head of the criminal investigation department, the police officer Mr F. and other police officers entered the interview room in which the applicant was locked, and started beating him with rubber truncheons. They handcuffed him and dragged him out of the room into the corridor. 9. The applicant was brought to the office of Mr M. where the following persons were also present: the investigator Mr Zh., Mr F. and two or three other officers, a forensic police expert, and two attesting witnesses, Mr L. and Mr R., both residents of Uyskoye village. 10. The applicant was thrown on to the table face down and beaten on the back. His head struck the central unit of a computer. The officers forcibly removed his trainers, tracksuit bottoms and underwear, took the underwear away and told him to get dressed. The applicant refused to get dressed, because he was handcuffed and his tracksuit bottoms were torn. 11. The officers M. and F. returned him to the interview room and threw him on the table on his stomach. M. hit him on the back with a rubber truncheon, removed the handcuffs and then went out and locked the door. 12. F. returned half an hour later, put handcuffs on the applicant and took him again to M.’s office where other officers were also present. The applicant was only wearing a T-shirt and socks. 13. The forensic expert attempted to take a hair sample from the applicant’s groin using a comb. He was unsuccessful, and M. cut some hair with scissors. 14. The applicant was then laid on the table facing the desk and M. started clipping his fingernails. In the process the applicant’s fingers began bleeding. 15. Once these procedures had been completed, the applicant was taken back to the interview room, which contained a table and two chairs. The handcuffs were removed. He was still wearing only a T-shirt and socks. 16. The applicant remained there overnight, until noon on 23 June 2004. At noon he was transferred to a detention cell and given some clothing which his relatives had brought for him. 17. On 24 June 2004 the applicant was taken to a doctor for an examination. While there he asked the doctor to record his injuries. The doctor refused, saying he had had no instructions in that respect. 18. On the same day the applicant was brought before a judge with a view to deciding on the question of detention on remand. During those proceedings the applicant described his injuries to the judge, who remanded him in custody but did not otherwise take note of the applicant’s complaints. 19. On 25 June 2004 the applicant complained to the Uysk district prosecutor about the forceful removal of his underwear, beatings and the cutting of his fingernails. On 29 June 2004 a deputy prosecutor heard him in person. 20. On 1 July 2004 the deputy prosecutor refused to institute criminal proceedings on the basis of the statements from officers M. and F. and investigator Zh. which read as follows: “It follows from M[.]’s statement that Salikhov refused to perform procedural acts voluntarily, struggled to break loose and accidentally struck his head against the computer. He was not intentionally beaten by anyone. After his fingernails had been removed and his groin shaven, Salikhov was told to get dressed. He refused to get dressed. He was taken by the corridor to the detention wing. He was wearing a T-shirt and socks... F. explained that... Salikhov had refused to take part in procedural acts. He was held by the hands while his underwear was being removed. He broke loose and struck his head against the computer. He refused to get dressed... Zh. stated that... Salikhov had struck his head against the computer when his underwear was being removed. He did not make any threats against Salikhov. He said that if Salikhov refused to hand over his underwear voluntarily, it would be taken by force because it was needed. Salikhov refused to get dressed of his own will...” The decision did not mention the applicant’s version of the events. 21. The applicant contested the refusal in court. On 19 August 2004 the Uyskiy District Court of the Chelyabinsk Region rejected his complaint, finding as follows: “Pursuant to Article 202 § 1 of the Code of Criminal Procedure, the investigator may obtain samples from the suspect ... It follows from the statements by Mr Zh[.], Mr F[.] and [the head of the investigators’ group] Ms Z[.] that they did not use any unlawful means on Mr Salikhov or made any treats against him...” 22. On 14 January 2005 the Chelyabinsk Regional Court summarily upheld that decision on appeal. 23. At about 9 p.m. on 24 June 2004 the applicant was taken out of the cell – where he was detained on remand – into the corridor, where the investigators Zh. and Z. and a nurse from the Uysk emergency station were present. 24. The investigators told the applicant that they wanted to take a blood sample from him. The applicant refused to give blood in the absence of counsel. 25. At 9 a.m. the following morning investigator Zh. visited the applicant in his cell. Counsel for the applicant was also present. The investigator showed him a copy of a decision that a blood sample should be taken for a comparative study, and asked the applicant to comply. The applicant refused to give blood voluntarily and counsel maintained that a sample could not be taken against his will. 26. Half an hour later escort officers K. and D. took the applicant out of the cell into an office where the investigator Zh., the nurse, and two attesting witnesses, Kh. and I., were waiting for him. The investigator requested the applicant to give blood. The applicant refused. The investigator asked the escort officers to hold the applicant still but they refused, stating that it was beyond their call of duty. The nurse declined to take blood against the applicant’s will. Thereafter, the applicant was brought back to his cell. 27. At 9 p.m. on 1 July 2004 the applicant was taken from his cell and into the corridor. The investigators Zh. and Z., the head of the police station R. and his deputy Is., officers-on-duty Ye. and A., as well as the nurse, were waiting there for him. The applicant again refused to give blood. 28. The investigator ordered him to be handcuffed and the nurse tried to take blood, but could not get near enough to the applicant. The officers then threw him on the floor, face down with his hands behind his back. Ye. sat on his neck, A. on his legs, and R. and Is. held his hands. The nurse again attempted to use a syringe but, as he kept jerking his arms, she stopped. 29. The applicant complained to the district prosecutor, the internal security department of the police and the Ombudsman of the attempted taking of a blood sample by force. He did not receive any replies. 30. On 13 October 2004 he lodged a complaint about a violation of his constitutional rights and ill-treatment with the Uyskiy District Court. 31. The District Court heard the applicant, the investigators Zh. and Z., and the officers Is., Ye. and A. and dismissed the applicant’s complaint on 28 December 2004, finding as follows: “Salikhov claimed ... that attempts to take a blood sample by force and the use of handcuffs had amounted to torture. Article 21 of the Russian Constitution prohibits the use of torture. Article 1 of the Convention against Torture defines torture as any act by which severe pain is inflicted on a person for obtaining a confession, punishing or intimidating him. The court did not see any evidence that severe pain had been inflicted on Salikhov on 24, 25 June or 1 July 2004, this followed from the statements by the witnesses and Salikhov’s own testimony. The use of handcuffs was permitted under section 45 of the Pre-Trial Detention Act. As the witnesses stated in court, Salikhov had been handcuffed after he had started using obscene language against the nurse and police officers and jerking his hands, that is, they were used for putting an end to his unlawful conduct. Thus, the court finds no violation of Salikhov’s constitutional rights because a blood sample was not taken, because he was not subjected to torture, and because the use of handcuffs was lawful.” 32. On 5 April 2005 the Chelyabinsk Regional Court upheld that decision on appeal in a summary fashion. 33. Following his detention on remand, the applicant was placed in remand prison IZ-74/1. During the investigation of the criminal case against him, he was, on a number of occasions in the period from 22 June 2004 to 1 April 2005, detained in the detention unit of the Uysk police station, for a total duration of seventy-five days. 34. Cells were equipped with beds made of sheet metal. No mattresses, blankets, pillows or bed linen were provided. There were no toilets inside the cells; detainees were given buckets without covers or handles. Access to daylight and fresh air was limited. There was no opportunity for outdoor exercise; the only light bulb was dim. No breakfast or dinner was served and the midday meal was limited to a slice of bread and a bowl of soup. 35. The applicant complained to the prosecutor’s office about the conditions of his detention at the Uysk police station, lack of sleep and malnutrition. In addition, he repeated his complaint before the Uysk District Court at the hearing on 9 August 2004. 36. On 18 August 2004 the Uysk prosecutor replied to the applicant that there had been numerous (unspecified) breaches of the legal requirements relating to the conditions of detention. By letter of 18 October 2004, the prosecutor additionally informed him that on 23 August 2004 he had instructed the head of the Uysk police station to remedy those breaches and to take disciplinary action against those responsible. 37. By a letter dated 19 November 2004, the regional police headquarters informed the applicant that mattresses and bed linen had been purchased and distributed to all inmates. They also stated that buckets with covers and handles were available in all cells and that one hour of outdoor exercise was possible on a daily basis. Food was purchased from the local consumers’ union for a total amount of twenty-four Russian roubles (less than one euro) per person per day. 38. On 20 September 2005 the deputy Uysk prosecutor issued a formal requirement to the head of the Chelyabinsk Region police and the chief officer of Uysk police station to remedy the violations of the laws relating to pre-trial detention of suspects and defendants. The prosecutor deputy noted that, in breach of the relevant laws and regulations, the detainees at the Uysk police station were not provided with bedding, that the cells were not equipped with toilets or water taps, that cell no. 2 was overcrowded, that there was no opportunity for outdoor exercise, and that food was distributed only once a day on weekdays and not provided at all at weekends. 39. On 12 October 2005 the head of the Chelyabinsk Region police reported to the Uysk district prosecutor that his requirement had been examined and that the conditions of detention in the Uysk police station had indeed fallen short of the statutory requirements. The deficiencies were largely due to insufficient funding from the federal budget. However, a renovation of the Uysk police station at the expense of the regional budget was planned for 2006. 40. On 26 October 2005 the chief officer of Uysk police station also acknowledged, in his report to the Uysk district prosecutor, that the conditions at the Uysk police station were unsatisfactory but renovation would be carried out in 2006. 41. As indicated above, the applicant spent a total of seventy-five days of his detention on remand in cells of the Uysk police station. One of those occasions was on 21 October 2004 when the applicant was brought to Uysk police station from the remand prison at about 4 p.m. The applicant was locked in cell no. 1. 42. Soon afterwards police officer Mr P. told the applicant to leave the cell and follow him. The applicant refused to leave the cell without the investigator and counsel being present. 43. The chief officer of the police station, Mr R., accompanied by officers Mr Pr., Mr Ye. and Mr V., entered the cell and ordered his subordinates to “wrap him up” and take him to the hospital for a medical check-up. The officers started dragging the applicant off the bed by the feet, hitting and punching him. Someone banged his head against the bed. He was handcuffed and taken out into the corridor. The applicant was shouting and swearing at the policemen. 44. The applicant wore socks but no shoes. He was dragged into the courtyard, pulled through the slush and puddles and placed into a prison van. 45. The applicant was brought to the hospital where a nurse put some questions to him. The applicant spotted investigator Zh. nearby and requested him to secure the presence of his counsel. 46. The applicant was then taken to the court-house. Counsel M. met him there and told him that a hearing concerning an extension of his detention period would now take place. The applicant replied that he would come to the hearing as he was: barefoot, wet and dirty, with blood from wounds on his forehead and face. 47. The escorting officers took the applicant into the hearing room. The applicant told the judge that he was ready to take part in the hearing, but drew the judge’s attention to his lamentable appearance. The judge replied that “nothing dramatic had happened” and opened the hearing. At the close of the hearing the judge approved an extension of the authorised period of detention for a further three months. 48. The applicant appealed, complaining in addition about the circumstances in which he had been brought to the hearing. On 12 November 2004 the Chelyabinsk Regional Court rejected his appeal against the extension order but did not address the other complaints made. 49. Furthermore, on 25 October 2004 the applicant complained to the District Court that the hearing record made no mention of his complaint about the conditions in which he had been transported to the courthouse. On 3 November 2004 a judge of the District Court rejected his application for the correction of the hearing record, noting that “all statements, questions and answers had been recorded exactly as they had been made by the participants to the hearing”. 50. On 27 October 2004 the applicant complained to the Uysk prosecutor that the escorting officers had acted unlawfully. 51. On 19 November 2004 the deputy prosecutor of the Uysk district refused to institute criminal proceedings, finding as follows: “On 21 October 2004 Salikhov was escorted from remand prison no. IZ-74/1 to the Uysk police station for an extension of his authorised detention period. According to the applicable requirements of criminal law, a medical specialist must examine the detainee and determine whether he is fit to remain in custody. Salikhov was invited to follow the escorting officers. He refused and insisted on seeing his counsel and the head of the police station. Medical examination is not a procedural act, it does not require a separate decision by the investigator. It follows that there was no breach of the criminal procedure in respect of Salikhov. The actions of the escorting officers in respect of Salikhov were lawful because he refused to go out of the cell, behaved aggressively and used obscene language against the policemen. By decision of 10 November 2004, a criminal case was instituted against Salikhov for insulting public officials.” 52. According to the applicant, he challenged the deputy prosecutor’s decision before the Uysk District Court but he was not informed about the outcome of the proceedings. According to the Government, first the Uysk District Court on 28 December 2004 and then the Chelyabinsk Regional Court on 5 April 2005 had examined the deputy prosecutor’s decision and upheld it as lawful and justified. However, the copies of the judicial decisions of those dates produced by the Government concerned the applicant’s appeal against the deputy prosecutor’s decision of 13 October 2004 (see paragraphs 30 and 31 above) and no other decisions issued on the same dates were submitted. 53. The applicant stood trial before the Uysk District Court of the Chelyabinsk Region. The victim, Ms K., and the witnesses Ms V. and Ms Kar. did not appear at the hearings and the prosecution requested that their pre-trial statements be read out. The court granted the request, overriding the applicant’s objections, referring to reports by the police officers to the effect that they had moved home and their current whereabouts were not known. 54. The applicant’s line of defence was that of consensual intercourse. He did not deny having had sex with Ms K., but maintained that all contacts had been voluntary. In his submission, it was of fundamental importance to have Ms K. examined in open court. 55. The trial court examined in particular the following evidence: – the pre-trial statement by the victim K. She stated that on 20 June 2004 she had agreed to meet with her friend Mr V. While waiting for him, she was drinking coffee and chatting with her friends, Ms V. and Ms Kar. Mr V. came at about 11 p.m. and brought along two friends, the applicant and his co-defendant. The two girls were gone twenty minutes later. At about 2 a.m. she fell asleep. In the morning she asked the applicant and his co-defendant to leave, but they refused. Instead, they beat her with a plastic bottle on the head, undressed her by force and repeatedly raped her. After they left, she fell asleep and only woke up at about 8 p.m. on 21 June 2004. – the pre-trial statements by the witnesses Ms V. and Ms Kar. They stated that they had been visiting Ms K. at her home on the night of the events and had seen a very drunk Mr V. come in late with two friends. After a while they left and on the following day Ms K. told them that she had been raped. – the testimony from Ms M., Ms K.’s grandmother. She testified that at the material time K. had rented a flat elsewhere and moved out. On 22 June 2004 K. came in late at night, she was pale and shaking, but M. abstained from putting any questions to her. Only a few days later K. said that she had been raped, without giving any details. – the testimony from Mr V. He testified that he used to date K. On 20 June 2004 he got the news that the applicant and his co-defendant had been released from prison and they decided to celebrate. They came to the flat and got drunk with the girls. He spent the night on the sofa together with K. and then got up very early and left for work. – the testimony from the forensic expert Z. She testified that the applicant’s and his co-defendant’s underwear bore traces of epithelium cells that could belong to a woman with Type A blood. No blood or skin cells were found in their nail clippings. – the testimony from the forensic expert S. She stated that she had examined the victim K. on 23 June 2004 and found superficial abrasions and bruises. The injuries had been inflicted one or two days before the examination and they could have resulted from rape or other impact. No damage to the genital or anal area was detected. – the testimony from the police officer B. who worked in the missing persons unit of the Uysk district police. He stated that Ms K. had been on the list of missing persons since 28 February 2005 and that there were grounds to believe that she had been a victim of loan sharks to whom she had not repaid the debt. His report to the effect that he had gone to Chelyabinsk to search for K. was untruthful, as he had never gone to Chelyabinsk and as he had drafted the report “just like that, with no real information” because the investigator Za. had asked him to do so. He had been unable to locate Ms Kar. because she had moved out of the Uyskoy village; he had once seen Ms V. but he did not know where she lived. – the forensic biology reports prepared by the experts Z. and S. 56. On 31 March 2005 the District Court found the applicant and one co-defendant guilty as charged, finding as follows: “The materials of the pre-trial investigation and judicial inquiry support the finding that the defendant Salikhov is guilty of the offences of [aggravated rape and non-consensual sexual intercourse]. The defendant did not deny that he had engaged in sexual intercourse with K. on 21 June [2004] in the day-time at the following address ... The findings of a forensic biology report ... corroborated the fact of sexual intercourse by Salikhov and K. The following evidence confirms the non-consensual and violent nature of the intercourse between Salikhov and K.: the statements by the victim K. made during the pre-trial investigation and read out in court; the statements by the witnesses Ms V. and Ms Kar. made during the pre-trial investigation and read out in court; the testimony by the witness Ms M. and the witness Mr V. which were logical and consistent and which the court finds no reason to doubt. An indirect indication of the non-consensual and violent nature of the intercourse follows from the testimony of Mr B. in the part in which he stated: ‘K. said: Maybe you’ve had enough sex for today? Salikhov replied: [K.] is a smart girl, she’s got it right, - and took her to the bedroom.’ which implies the non-consensual nature of the intercourse between Salikhov and K. Furthermore, the injuries found on K.’s body – bruises on the outer surface of the hips, neck, shoulders and abrasions on the forearms – also confirm that Salikhov had had a sexual intercourse with her and forced her to perform oral sex on him; the expert S. stated before court that the timing of injuries did not contradict the information on Salikhov’s criminal acts [sic] and that such injuries might be the product of a non-consensual sexual intercourse... The fact that the forensic study did not uncover any injuries to K.’s genital or anal area does not exclude the possibility that sexual acts had been performed on K.’s against her will; the expert S. explained to the court that a forcible intercourse is possible without injuring the genitals or the anal opening and that she could not categorically exclude that there might be some indications of violent sexual intercourse. The scene of the offence (a fourth-floor flat), the identity of the participants (two men, both recently released from penitentiary facilities, one of them infected with tuberculosis, and a young woman), the number and frequency of sexual intercourse and violent acts demonstrate that the intercourse was carried out against the victim’s will.” 57. In addition, the District Court found the applicant guilty of insulting six police officers on 21 October 2004 (see paragraphs 41-47 above). The finding of his guilt was founded on the statements by the police officers. The court held that the application of handcuffs had been lawful because the applicant had refused to leave the cell. 58. The applicant was sentenced to three years and six months’ imprisonment in a high-security colony. 59. On the same day the District Court issued two separate decisions “concerning breaches of law committed during the pre-trial investigation”. The first decision related to a belated notification of the decision to prepare the forensic biology report: the report was requested on 25 June 2004 but the applicant was only informed of it on 29 June 2004. The second decision concerned the report by the police officer B., which stated that, further to a prosecutor’s request, on 15 November 2004 he had visited the registered residence of the victim K. in Chelyabinsk and talked to the neighbours, but no one had seen her or knew her. According to the officer’s testimony in court, he had never gone to Chelyabinsk or talked to anyone there and that he had written the report “just like that, with no real information”. The District Court considered this to be a gross violation of criminal procedure and requested the chief officer of the Uysk police station to take measures and report back to the court. 60. In his statement of appeal, the applicant submitted in particular that pre-trial written depositions by the victim and eyewitnesses had been read out in breach of the domestic law. 61. On 23 May 2005 the Chelyabinsk Regional Court rejected the appeal and upheld the conviction in substance. The appeal court found, in particular, that the first-instance court had taken “sufficient measures” to secure Ms K.’s appearance. 62. Article 202 of the Code of Criminal Procedure regulates the way in which samples may be obtained for a comparative study. The investigator may obtain samples of handwriting or body fluids from a suspect or defendant if it is necessary to check whether or not he or she has left traces in a specific place or on material evidence (paragraph 1). It is prohibited to obtain samples by methods that endanger the individual’s life and limb or diminish his honour and dignity (paragraph 2). If necessary, samples can be taken by a specialist (paragraph 3). 63. The Pre-Trial Detention Act, no. 103-FZ of 15 July 1995, provides that handcuffs may be used on a suspect or accused to put a stop to unlawful resistance on his part and to prevent him from escaping or from causing harm to others or himself (section 45). 64. The Police Act, no. 1026-I of 18 April 1991, in force at the material time, sets out an exhaustive list of circumstances in which special means, including rubber truncheons and handcuffs, and firearms may be used. 65. Handcuffs may only be applied to overcome resistance offered to a police officer, to arrest an individual caught in the act of committing a crime and attempting to escape, and to bring arrestees to police stations, to transport and protect them if their behaviour allows the conclusion that they are liable to escape, cause harm to themselves or other individuals or offer resistance to police officers (section 14 § 1 (2, 3, 5)). 66. Rubber truncheons may only be used to fend off an assault on police officers or civilians, overcoming resistance offered to a police officer, or putting an end to mass breaches of public order or group actions that interfere with the functioning of transport, communications or organisations (section 14 § 1 (1, 2, 7)). 67. The Code of Criminal Procedure provides that witnesses are to be examined directly by the trial court (Article 278). Statements given by the victim or a witness during the pre-trial investigation can be read out with the consent of the parties in two cases: (i) if there is a substantial discrepancy between those statements and the testimony before the court; or (ii) if the victim or witness has failed to appear in court (Article 281). 68. If a witness does not obey a summons to appear without a good reason, the court may order that the police or the bailiffs should bring him to the courtroom by force (Article 113).