GORBATENKO v. RUSSIA
Inadmissible
Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
1. The applicant, Mr Aleksandr Mikhaylovich Gorbatenko, is a Russian national, who was born in 1973 and lives in the town of Omsk. 2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3. On 31 May 2005 the applicant was arrested on suspicion of inflicting bodily harm resulting in death. He was taken to the premises of the Omsk Town Department of the Interior in the Tsentralniy district of Omsk. He was subsequently placed in its custody room. On 3 June 2005 he was transferred to temporary detention facility IZ-1 located in the town of Omsk. According to the applicant, one of the cells he occupied was in an appalling condition. 4. On 10 June 2005 the applicant was transported to correctional colony IK-7 located in the same town. A prison doctor examined him on admission and made the following entry in his medical record: “[The applicant] has no complaints. The medical examination indicates no pathology of bodily organs and systems. No traces of injuries found on [the applicant’s] body. He states that he does not have any venereal diseases or HIV”. 5. According to the applicant, on 10 June 2005, following his admission, he was ill-treated. Prison guards allegedly insulted and kicked him in his kidneys, put a gas mask with a closed air valve on his face and beat him on the ribs with a mallet. 6. The applicant stated that the next day he was forced to learn by heart the list of duties detainees must undertake while in prison. On that day, he was also handcuffed to a radiator and beaten with a mallet. According to the applicant, he was ill-treated by prison guards every day between 10 and 15 June 2005. 7. On 16 June 2005 a doctor from the correctional colony examined the applicant on his discharge. The relevant medical entry reads as follows: “[The applicant] has no complaints. His skin shows no pathological condition. No pathological conditions of the bodily organs or system. No bodily injuries” 8. On an unspecified date the applicant complained to the Prosecutor’s Office of the Sovetskiy District of Omsk (“the prosecutor’s office”) that he had been subjected to ill-treatment between 10 and 15 June 2005. 9. On 29 December 2005 the prosecutor’s office dismissed his complaint as unsubstantiated. 10. On 11 January 2006 the Prosecutor’s Office of the Omsk Region (“the regional prosecutor’s office”) quashed the decision of 29 December 2005 as unfounded and ordered the prosecutor’s office to perform an additional investigation into the applicant’s allegations. 11. On 20 October 2006 the prosecutor’s office again refused to institute criminal proceedings. The regional prosecutor’s office informed the applicant about this decision by letter of 23 October 2006 and advised the applicant of his right to appeal against it in court. The applicant did not bring any court proceedings in this connection. 12. In 2010 the applicant brought a claim against the correctional colony IK7 and the Federal Service of Execution of Sentences seeking damages for the alleged ill-treatment he had suffered at the hands of prison guards between 10 and 15 June 2005. 13. On 22 February 2011 the Sovetskiy District Court dismissed the applicant’s claim as unsubstantiated. 14. On 23 March 2011 he appealed against that judgment. 15. On 25 March 2011 the Sovetskiy District Court rejected the applicant’s appeal for failure to comply with the statutory time-limit for lodging such claims, noting that the applicant had not applied for an extension of the deadline for appeal. 16. On 27 April 2011 the Omsk Regional Court upheld that decision. 17. On 31 May 2005, on the day of his arrest, the applicant was given access to defense counsel, Ms Z. The applicant allegedly considered her assistance ineffective and signed a waiver of his right to a lawyer, but did not ask the investigator to provide him with another defense counsel. The identification parade and a seizure of his personal effects, which took place on that day, were nevertheless carried out in the presence of Ms Z. During the identification parade the applicant was identified as a perpetrator of the crime by witnesses Bor., Bar. and Ya. The applicant did not take part in interrogations or cross-examinations on that day and did not give any evidence himself. 18. On 15 November 2005 the applicant was convicted as charged by the Pervomayskiy District Court of Omsk and sentenced to eight years and six months of imprisonment. It held that on 11 May 2005 the applicant, who had been drunk at the time, had beaten up a stranger on the street. The next day the victim of the applicant’s attack had died in hospital. 19. The applicant’s conviction was based on testimonies of eyewitnesses Bor., Bar. and Ya. who had seen him hitting and kicking the victim during the incident. Their trial statements were consistent with their oral evidence given during the pre-trial stage of proceedings. The court also referred to expert reports, which attributed the victim’s death to the injuries sustained during the beatings. The forensic examination established that the blood stains on the applicant’s clothes belonged to the victim of his attack. The applicant’s guilt was also confirmed by, among other things, the identification parade record of 31 May 2005. Throughout the trial the applicant was represented by defense counsel G. 20. The applicant challenged his conviction on appeal. He complained about the outcome of his case, in particular the findings of fact and law, the admission of allegedly inadmissible evidence, and the lack of effective legal assistance during the identification parade on 31 May 2005. The applicant did not raise an issue of an alleged ill-treatment between 10 and 15 June 2005 during the trial or on appeal. 21. On 2 March 2006 the Omsk Regional Court upheld the applicant’s conviction on appeal. It affirmed the findings of the lower court. It held that the identification parade had been performed in accordance with the applicable domestic rules. The court also noted that on 31 May 2005 the applicant’s defense rights had been properly secured by Ms Z. 22. Between 17 June 2005 and 6 February 2006 the applicant was frequently transferred between various detention facilities, including correctional colony IK-3 and temporary detention facility IZ-1. According to the applicant, the conditions of his detention and transportation were consistently appalling owing to overcrowding, dirt, insects, rats, poor heating and insufficient ventilation. 23. Article 21 provides that no one may be subjected to torture, violence or any other cruel or degrading treatment or punishment. 24. Article 48 provides that everyone has a right to qualified legal assistance. It also provides that an arrested or detained person or a person accused of a criminal offence should have a right to legal representation from the moment of his or her arrest, placement into custody or when charges are brought. 25. Article 116 § 1 of the Criminal Code of the Russian Federation of 13 June 1996 provides that the application to another person of physical force which has caused physical pain but has not resulted in any health damage is punishable by a fine, compulsory or correctional labour or arrest for a period of up to three months. 26. Article 286 § 3 (a) provides that actions of a public official which clearly exceed his authority and entail a substantial violation of the rights and lawful interests of citizens, committed with violence or the threat of violence, are punishable by three to ten years’ imprisonment, with a prohibition on occupying certain posts or engaging in certain activities for a period of three years. 27. Article 144 of the Code of Criminal Procedure of the Russian Federation provides that prosecutors, investigators and inquiry bodies must investigate every report of a crime committed or being planned, and take a decision on that information within three days. In exceptional cases, that time-limit can be extended to ten days. The decision should be one of the following: (a) to institute criminal proceedings; (b) to refuse to institute criminal proceedings; or (c) to transmit the information to another competent authority (Article 145). 28. Article 125 provides that the decision of an investigator or a prosecutor to dispense with or terminate criminal proceedings, and other decisions and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede citizens’ access to justice, may be appealed against to a District Court, which is empowered to check the lawfulness and grounds of the impugned decisions. 29. Article 213 provides that, in order to terminate the proceedings, the investigator should adopt a reasoned decision with a statement of the substance of the case and the reasons for its termination. A copy of the decision to terminate the proceedings should be forwarded by the investigator to the prosecutor’s office. The investigator should also notify the victim and the claimant in writing of the termination of the proceedings. 30. Under Article 221, the prosecutor’s office is responsible for general supervision of the investigation. In particular, the prosecutor’s office may order that specific investigative measures be carried out, transfer the case from one investigator to another, or reverse unlawful and unsubstantiated decisions taken by investigators and inquiry bodies. 31. Article 51 of the Code provides for mandatory legal representation if the accused faces serious charges carrying a term of imprisonment exceeding fifteen years, life imprisonment or the death penalty. Unless counsel is retained by the accused, it is the responsibility of the investigator, prosecutor or the court to appoint legal-aid counsel. 32. Article 52 provides that an accused can waive his right to legal assistance, but such a waiver must be established in writing. The waiver may be revoked at any point in the proceedings.