CASE OF MASLOVA AND NALBANDOV v. RUSSIA
Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment;Torture) (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;Inhuman treatment) (Substantive aspect);Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Loukis Loucaides;Sverre Erik Jebens
6. The applicants were born in 1980 and 1982 respectively and live in the town of Nizhniy Novgorod. 7. Between 4 and 24 November 1999 the first applicant had the status of witness in a murder case conducted jointly by the police and the prosecution. 8. It appears that these authorities repeatedly summoned her to give evidence to the Nizhegorodskiy District Department of Internal Affairs (Нижегородское районное управление внутренних дел – “the police station”). 9. It also appears that at some point during the investigation suspect B. stated that the first applicant had been in receipt of the murdered person's belongings. 10. According to the first applicant, investigator Zh. summoned her to appear on 25 November 1999 at 12.30 p.m. The Government submitted that the first applicant was summoned by policeman K. and not by investigator Zh. 11. The applicants submitted the following account of events. The Government did not make any specific comments in this respect. 12. The first applicant arrived at the police station on time and was questioned. The interrogation was initially conducted by policemen Kh. and K. and took place at office no. 63 of the police station. 13. The policemen requested the first applicant to acknowledge that she had received property belonging to the murdered person. When the first applicant refused to do so, they started shouting and threatened to bring criminal proceedings against her. They took her soccer scarf and administered several blows with the scarf to her face. 14. Then K. left the office and Kh. stayed there with the first applicant in private. He locked the door from the inside and went on with physical and psychological coercion. Kh. fettered the first applicant's hands with thumbcuffs and administered blows to her head and cheeks. He raped her using a condom and then forced her to perform oral sex with him. 15. Kh. was interrupted by noise in the corridor and knocking on the door. The first applicant was allowed to go to the lavatory and tidy herself up. 16. At around 2 p.m. the first applicant was confronted with suspect B. In his presence, she yet again denied her involvement in the murder. 17. Thereafter Kh. and K. fettered the first applicant's thumbs and repeatedly hit her in the stomach. They put a gas mask over the first applicant's face and made her suffocate by shutting off access to air. Kh. and K. also ran electricity through wires connected to the first applicant's earrings. The above actions were coupled with attempts to obtain a confession. 18. It appears that eventually the first applicant admitted having received the property in question and agreed to write her confession down on paper. Since the first applicant was in an agitated state and failed to write properly, she had to try twice. The confession was addressed to a local district prosecutor. 19. Kh. and K. then suggested that the first applicant's mother should bring the notebook containing the phone numbers and addresses of the applicant's friends and acquaintances. 20. The first applicant called her mother and at 4.40 p.m. the latter and the second applicant came to the police station and brought the required notebook. The first applicant's mother and the second applicant stayed in a lobby near office no. 63. 21. At 5 p.m. S., an investigator from a local prosecutor's office, came to office no. 63. He learned from the first applicant that she was a CSKA Moscow soccer fan and started to insult her and administer blows to her head with the second applicant's own scarf, requiring her to curse this club. 22. Some time later Kh. brought the first applicant to office no. 3 of the prosecutor's office for the Nizhegorodskiy District of the city of Nizhniy Novgorod (Прокуратура Нижегородского района г. Нижний Новгород – “the local prosecutor's office”) which was situated in the same building as the police station. 23. Zh., an investigator of the local prosecutor's office, interrogated the first applicant in connection with her confession. 24. In order to put additional pressure on her the investigators simultaneously arrested and detained her mother. It appears that the first applicant's mother spent two hours in detention. 25. According to the second applicant, around 6.30 p.m. investigator S. was in the lobby and saw the second applicant. S. rudely demanded the second applicant to leave the building, kicked him on the hip, pushed him towards the exit, then caught up with him and forced him into office no. 54 in which there were two unidentified policemen. 26. Then S. locked the door from the inside, hit the second applicant in his trunk several times and dealt a few blows to the second applicant's head and trunk with his own CSKA Moscow soccer scarf. 27. S. brought the second applicant to office no. 7 and, in presence of Kh. and investigator M., went on beating the second applicant, requiring him to curse the CSKA Moscow soccer club. When the second applicant refused, S. put the scarf around his neck and started to suffocate the applicant, simultaneously hitting him on the trunk. The second applicant eventually capitulated. 28. Thereafter M., Zh. and Kh. sent the second applicant to a nearby shop to buy alcohol, cigarettes and food and upon his return he was expelled from the building. 29. Around 7 p.m., S. and M. came to office no. 3 in which investigator Zh. was finalising the interrogation of the first applicant. They did not let the first applicant out after the questioning was over and started to drink alcohol. According to the first applicant, her requests to leave were denied. 30. Upon her request, the first applicant was escorted to the lavatory on the third floor of the building where she unsuccessfully tried to cut the veins of her left wrist. 31. She returned to office no. 3 and for the next two hours she was raped by Zh., S. and M. It appears that they used condoms and that following the rape they cleaned the place with wipes. It appears that Kh. had left the office upon the first applicant's return from the lavatory and had not taken part in the rape. 32. At 9 p.m. S. left and during the next hour Zh. and M. went on raping the first applicant. Around 10 p.m. they released her. 33. At 10.30 p.m. the first applicant reached the place of her acquaintance RB. Shortly later she was joined by IA and EA. After a talk, EA called the first applicant's parents and told them that RB and IA would follow the first applicant to a hospital. 34. At 1.20 a.m. on the next day they arrived at hospital no. 21 and the first applicant told an assistant nurse that she had been raped in the police station. The nurse and the doctor did not examine the applicant and advised her to address herself to a bureau of forensic examination. The applicant refused because the bureau was located too close to the police station. She was then advised to go to a bureau in a different district. It does not appear that the first applicant did so. 35. It appears that on 26 November 1999 the first applicant applied to the prosecutor's office alleging that she had been tortured and raped. The Nizhniy Novgorod City prosecutor's office (прокуратура г. Нижний Новгород) opened a criminal case in this connection and carried out an investigation. The second applicant had the status of crime victim in this case. 36. On 25 April 2000 Kh., Zh., S. and M. were charged with commission of crimes punishable under Articles 131, 132 and 286 of the Criminal Code. 37. On 5 July 2000 the bill of indictment was signed and the case against Kh., Zh., S. and M. was transferred to the Nizhegorodskiy District Court of the city of Nizhniy Novgorod (Нижегородский районный суд г. Нижний Новгород – “the District Court”) for trial. 38. The bill of indictment stated that Kh. was accused of having tortured and raped the first applicant, ill-treated the second applicant, abused the office and discredited the authority (see the episodes described in paragraphs 12-15, 16-21, 25-28 and 29-32 above). Zh. was charged with having raped and sexually abused the first applicant, abused the office and discredited the authority (see paragraphs 22-24 and 29-32). As to S., he was accused of having ill-treated the first and second applicant and abused and discredited the authority (see paragraphs 16-21 and 25-28), raped and sexually abused the first applicant and abused and discredited the authority (see paragraphs 29-32). M. was charged with having raped and sexually abused the first applicant and abused and discredited the authority (see paragraphs 29-32). The alleged criminal acts of the accused were characterised under Articles 131-1, 2 (b), 132-1, 2 (b) and 286-3 (a, b), respectively, of the Criminal Code. 39. It appears that the accused denied their involvement in the crimes in question, kept silent and refused to give urine or sperm for examination. 40. The findings in the bill of indictment were principally made on the basis of evidence given by the first and second applicants, who had identified the alleged offenders and gave a very detailed account of events. 41. The bill also referred to the statements of witness B., who heard the screams of Kh. and moans of the first applicant and then saw that the first applicant was tear-stained and demoralised. B. also cited the statement of Kh. who had allegedly said that the first applicant had “cracked” and admitted everything. 42. There were also statements of witnesses RB, EA and IA, the assistance nurse and the doctor, the parents of the first applicant, the mother of the second applicant and an employee of the shop who had sold the food and alcohol to the second applicant (see paragraph 28 above). 43. The other evidence also included the items obtained through searches carried out on the premises of the police station and the prosecutor's office, the first applicant's handwritten statement of a self-incriminating character which had been described by an expert as having been written by “a shaking hand” (see paragraph 18), the medical confirmation of the first applicant's attempts to cut her veins (see paragraph 30), the report of the forensic examinations and other evidence. It appears that several other people who had previously been prosecuted and whose criminal cases had been dealt with by the accused gave evidence confirming that the accused had used torturing devices, such as a gas mask, electric wires and a fettering device. 44. According to forensic examination no. 650 of 31 December 1999, the clothes that Kh. had worn on 25 November 1999 bore traces of cells of vaginal epithelium of the same antigen group as the first applicant's. The investigation also established that Kh. and his spouse had a different antigen group. 45. During the search carried out at the premises on 27 November 1999 the investigative authority discovered two used condoms, one in the yard of the police station and the other on the cornice under the window of office no. 3 of the prosecutor's office. 46. It appears that only one of the discovered condoms was suitable for forensic examination. The genomic examination revealed the presence of vaginal cells belonging, with a probability of 99.9999%, to the first applicant and spermatozoids and cells of male urethra. 47. The same search also led to the discovery of two wipes in the yard of the police station bearing traces of sperm. 48. Furthermore, the forensic examination established that the first applicant's clothes which she had allegedly worn on that day bore traces of sperm. 49. During a preliminary examination of the case on 16 August 2000 counsel for the accused pointed to various procedural defects in the investigation and applied to have the case remitted for additional investigation. 50. On the same day the District Court granted the application and remitted the case for additional investigation. 51. The court ruled that the investigative authorities had committed serious breaches of domestic procedure during the investigation which had infringed the rights of the accused and rendered most of the evidence in the case inadmissible. 52. In particular, the decision noted numerous inaccuracies and deficiencies in the handling of the case, including disregard of a special procedure for opening an investigation in respect of prosecution officers and the fact that Kh., Zh., S. and M. had not enjoyed the procedural status of accused persons until 24 April 2000, which meant that almost all investigative actions (searches, interrogations, identification parades, expert examinations, etc.) prior to that date had been carried out in breach of their defence rights and rendered the respective evidence inadmissible. 53. The decision of the District Court of 16 August 2000 was upheld on the prosecutor's appeal by the Nizhniy Novgorod Regional Court (Нижегородский Областной Суд – “the Regional Court”) on 13 October 2000. 54. On an unspecified date in September 2001 the first applicant's counsel brought an appeal against the decisions of 16 August and 13 October 2000 to the Presidium of the Regional Court, requesting that they be re-examined by way of supervisory review. 55. On 1 October 2001 counsel lodged a similar appeal with the Supreme Court of the Russian Federation (Верховный Суд РФ – “the Supreme Court”). 56. Having examined the case file, on 6 June 2002 the Presidium of the Regional Court declined the applicants' request for re-examination of the decisions by way of supervisory review. 57. It appears that a similar decision was taken by the Supreme Court on 21 June 2002. 58. On 12 January 2001 the Regional Prosecutor's Office (Нижегородская областная прокуратура) examined the case, found that the charges were essentially based on the first applicant's incoherent and inconclusive submissions, that the evidence in the case taken as a whole was inconsistent, and concluded that no strong evidence against the accused had been collected during the investigation. 59. It also had regard to the conclusions in the court decisions of 16 August and 13 October 2000 and noted that “the repetitive breaches of law and, in particular, the failure to respect the procedures and rules governing the institution of criminal cases in respect of special subjects – investigators of the prosecutor's office – created no judicial perspective [for the case] since it appeared impossible to remedy the breaches committed during the investigation”. For these reasons it was decided to discontinue the criminal proceedings. The decision stated that the first applicant and the accused were to be notified and that the decision could be appealed against to a higher prosecutor's office. 60. By a letter of 19 June 2001 (No. 15/1-1018-99) the Regional Prosecutor's office responded to the first applicant's appeal against the decision of 12 January 2001 fully deferring to its reasons and conclusions. The letter did not mention the possibility of appeal against the decision in a court. 61. According to the Government, the investigation in this case was repeatedly resumed and discontinued. 62. On 30 August 2002 the Regional Prosecutor's Office annulled its decision of 12 January 2001 to discontinue the criminal proceedings and submitted the case for additional investigation. It mentioned the lack of legal characterisation of the acts committed in respect of the second applicant as a drawback of that decision. 63. On 16 October 2002 the local prosecution office terminated the investigation in the criminal case, referring to the lack of evidence of any crime and the failure to prove the involvement of the police and prosecution officials. 64. It appears that this decision was subsequently annulled, but on 24 February 2002 the local prosecutor's office again terminated the proceedings on the ground of lack of evidence of a crime. 65. On 19 September 2004 the first applicant's counsel challenged the decision of 24 February 2002 before the District Court. In a judgment of 28 September 2004 the District Court upheld the decision, fully deferring to its reasons. The judgment was upheld on appeal on 29 October 2004 by the Regional Court. 66. On 29 April 2005 the Regional Prosecutor's office yet again decided to resume the proceedings in the case. 67. According to the applicant, on 28 June 2005 the proceedings were yet again closed. 68. The Government submitted that on 22 August 2005 the proceedings in the case had been resumed. This decision was appealed against by the accused. On 22 November 2005 the District Court quashed the decision to resume the proceedings as unlawful. The Regional Court upheld the District Court's decision on 30 December 2005. Thereafter the Deputy Prosecutor General lodged a supervisory review request in respect of the decisions of 22 November and 30 December 2005. 69. On 1 February 2007 the Regional Court, sitting as a supervisory review instance, examined and rejected the prosecutor's request, but noted that the decision of 30 December 2005 had been adopted by an unlawful composition of judges and remitted the case to the Regional Court for a fresh examination on appeal. 70. The outcome of these proceedings remains unclear, but no further steps appear to have been taken in respect of the criminal case against the policemen and investigators. 71. Article 131 §§ 1 and 2 (b) of the Criminal Code of the Russian Federation punishes the offence of rape committed by a group, whether or not organised and with or without prior conspiracy, with imprisonment up to fifteen years. 72. Article 132 §§ 1 and 2 (b) punishes forced sexual acts committed by a group, whether or not organised and with or without prior conspiracy, with up to fifteen years of imprisonment. 73. Article 286 § 3 (a, b) punishes abuse of office committed with use of force or threat to use force, with or without the use of arms or other special devices with imprisonment up to three years. “A witness shall be called for interrogation by a written notice served on him personally or, in his absence, on an adult member of his family... The notice shall contain the name of the person called as a witness, indicating where, before whom, on what date and at what time he is required to appear and the consequences of failure to appear. A witness may also be called by means of telephone or cable.” “The interrogation of a witness shall be conducted at the place of the investigation. An investigator may decide to interrogate a witness at the location of that witness.” 74. Under Articles 108 and 125 of the Code of Criminal Procedure, a criminal investigation could be initiated by a prosecution investigator at the request of a private individual or of the investigating authorities' own motion. Article 53 of the Code stated that a person who had suffered damage as a result of a crime was granted the status of victim and could join criminal proceedings as a civil party. During the investigation the victim could submit evidence and lodge applications, and once the investigation was complete the victim had full access to the case file. 75. Under Articles 210 and 211 of the Code, a prosecutor was responsible for overall supervision of the investigation. In particular, the prosecutor could order a specific investigative measure to be carried out, the transfer of the case from one investigator to another, or the reopening of the proceedings. 76. Under Article 209 of the Code, the investigator who carried out the investigation could discontinue the case for lack of evidence of a crime. Such a decision was subject to appeal to the senior prosecutors or the court. The court could order the reopening of a criminal investigation if it deemed that the investigation was incomplete. 77. Article 210 of the Code provided that the case could be reopened by the prosecutor “if there were grounds” to do so. The only exception to this rule was for cases where the time-limit for prosecuting crimes of that kind had expired. 78. Article 161 of the Code provided that, as a general rule, the information obtained in the course of the investigation was not public. The disclosure of that information might be authorised by the prosecuting authorities if disclosure did not impede the proper conduct of the investigation or go against the rights and legitimate interests of those involved in the proceedings. The information concerning the private life of the parties to the proceedings could not be made public without their consent. 79. Section 42 of the Law on Prosecution Authorities and Decree No. 44 of the Prosecutor General of 26 June 1998 sets out a special procedure for bringing administrative and criminal proceedings against officials of the prosecution authorities. In particular, the officials who have the right to initiate such proceedings are exhaustively listed. 80. The Civil Code of the Russian Federation, which entered into force on 1 March 1996, provides for compensation for damage caused by an act or failure to act on the part of the State (Article 1069). Articles 151 and 1099-1101 of the Civil Code provide for compensation for non-pecuniary damage. Article 1099 states, in particular, that non-pecuniary damage shall be compensated for irrespective of any award for pecuniary damage.