CASE OF SHERSTOBITOV v. RUSSIA
Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 6-1
Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Khanlar Hajiyev;Sverre Erik Jebens
5. The applicant was born in 1974 and lives in Krasnoyarsk. 6. On 29 January 2002 Ts. and V. were drinking beer at a bus stop, where they saw the applicant and B., a nine-year-old boy. They were under the impression that the applicant was making sexual advances to B. and asked the assistant from a shop nearby to call the police. The shop assistant called the security guards from her company. Two guards, T. and S., arrived and took the applicant and B. to the police station at about 1 a.m. on 30 January 2002. 7. At the police station, the applicant was placed in an “administrative” cell with three other detainees. According to K. and N., police officers on duty at the police station at the time, N. had to remove the applicant from the cell because other detainees verbally and physically attacked him. The applicant did not dispute the account of his placement in the cell provided by K. and N. However, he denied having been beaten by the other detainees. According to him, the police officer removed him from the cell as soon as one of the detainees started making threats to him. The detainee did not have time to hit him. 8. At about 4 a.m. on 30 January 2002 the applicant was taken to a separate room for questioning. According to the applicant, three police officers handcuffed him, verbally insulted him and hit him on the head, legs, back and crotch with rubber truncheons. They kicked and punched him. Then they removed the handcuffs, took off his sweater and a jacket and continued the beatings, questioning him about the boy. At about 6 a.m. they brought a rubber truncheon with a condom put over it. They pulled down the applicant's pants, inserted the truncheon up his anus and put a gas mask over his head. He screamed and they stopped. After that he wrote a confession dictated by the policemen, who held the rubber truncheon in front of him throughout that time. At about 1 p.m. the applicant was taken to the investigator's office. The applicant told the investigator about the beatings. The policemen took him out of the office and punched him again. 9. According to policeman Nik., he took part in the applicant's questioning together with policemen Gr. and P. The applicant had bruises and scratches on his face when they saw him for the first time. It was obvious that he had been beaten up. His clothes were covered with dust and shoe prints were visible on them. Nik. realised that other detainees had beaten the applicant up. The applicant was at first ashamed to tell them what had happened but then confessed. None of the policemen put any psychological or physical pressure on him. Gr. confirmed Nik.'s version of the events. P. later testified that he had no recollection of the applicant's questioning. 10. On the same day at 10 p.m. the applicant was taken to the temporary detention centre, where the officer on duty documented his injuries. Then the applicant was taken to State Hospital no. 7. The doctor examined him and noted numerous bruises, scratches on the face, neck, back and arms, and abrasions on the back and chest. The doctor stated that those injuries were not of a serious nature and had not caused any “health impairment” or “loss of working capacity”. 11. According to the applicant, other persons detained at the temporary detention centre could see bruises and abrasions on his face. He also had scratches on his chin caused by the gas mask. The handcuffs left abrasions on his wrists. There were scratches on the neck and bruises on the chest, buttocks, legs and back. The skin of the anus was damaged and bleeding. 12. According to the materials in the investigation file, none of the persons detained at the temporary detention unit recalled that the applicant had had injuries on his face and body. Nor did they remember that he had told them about the beatings by the policemen. 13. On 1 February 2002 the investigator ordered the applicant's detention pending investigation, noting that he was charged with a serious criminal offence and might abscond. 14. On 8 February 2002 the investigator authorised the applicant's continued detention pending investigation. In particular, she noted as follows: “Given that [the applicant] might abscond or reoffend, and having regard to the gravity of the charges..., [he] should remain in custody.” 15. On 10 April 2002 the Kirovskiy District Court of Krasnoyarsk dismissed the applicant's request to be released pending investigation and trial. The applicant appealed. He argued, inter alia, that he was not a repeat offender, that he had a permanent place of residence and employment and that he had to provide special care for his elderly parents. 16. On 7 May 2002 the Krasnoyarsk Regional Court upheld the decision of 10 April 2002 on appeal. In particular the court noted: “[The applicant] is charged with a very serious criminal offence. His remand in custody and indictment have been conducted in accordance with law. The [District] Court's decision to dismiss the [applicant's] application for release was therefore justified.” 17. On 30 April 2002 the prosecutor approved the bill of indictment and on 7 May 2002 the Kirovskiy District Court of Krasnoyarsk received the case file. 18. On 31 May 2002 the court opened the trial. It held four hearings in total. The first two hearings, on 31 July and 8 August 2002, were adjourned following requests submitted by the applicant and his counsel to study the case file and to obtain medical documents and materials concerning the applicant's allegations of ill-treatment from the prosecutor's office. 19. On 26 August 2002 the District Court found the applicant guilty of sexual assault of a minor and sentenced him to eight years' imprisonment. On 29 October 2002 the Krasnoyarsk Regional Court quashed the applicant's conviction on appeal, noting that the trial court had failed to establish the exact time of the crime and to consider an application by the applicant for certain evidence to be declared inadmissible. The court further ordered that the applicant should remain in custody. 20. On 25 November 2002 the case file was returned to the District Court. On 17 December 2002 the trial was suspended pending consideration of a request by the prosecutor for supervisory review of the judgment of 29 October 2002. 21. On 31 December 2002 the District Court extended the applicant's detention pending trial until 28 March 2003. In particular, the court noted: “After having heard [the applicant], his counsel..., who argued that the applicant should be released pending trial given that he was employed, could provide positive references and had two elderly parents who needed his financial support, and the prosecutor, who argued that it was necessary to extend [the applicant's] detention, the court finds that it is necessary to extend [the applicant's] detention until 28 March 2003 since, after [the applicant's] conviction on 26 August 2002 was quashed on appeal, the trial was adjourned pending consideration of the prosecutor's application for supervisory review of the appeal judgment of 29 October 2002. The preventive measure was imposed on the applicant in accordance with the law and was justified.” 22. On 4 January 2003 the Presidium of the Regional Court dismissed the prosecutor's request for supervisory review and returned the case file to the District Court, which opened the trial on 16 January 2003. 23. On 23 January 2003 the Regional Court upheld the decision of 31 December 2002 on appeal. The court noted as follows: “[The applicant] is charged with a very serious criminal offence. The indictment and the decisions to remand [the applicant] in custody and to subsequently extend his detention were in accordance with the law.” 24. On 26 March 2003 the District Court further extended the applicant's detention until 28 June 2003. In particular, the court noted: “The preventive measure in the form of detention imposed earlier on the defendant was lawful and justified. At the present time it is still necessary to detain [the applicant] as the circumstances justifying his placement in custody have not ceased to exist.” 25. On 3 April 2003 the Regional Court upheld the decision of 26 March 2003 on appeal. 26. On 23 April 2003, for an unknown reason, the applicant was not transported to the courthouse and his counsel did not appear in court. The District Court adjourned the hearing. 27. On 6 May 2003 the District Court commissioned a new comprehensive forensic medical examination of the victim. 28. On 25 June 2003 the District Court ordered the applicant's release on an undertaking not to leave town. The court noted that the proceedings had been stayed pending two expert examinations, that the investigation had been completed and the victim and all witnesses had been questioned. It further noted that the applicant had a permanent place of residence and employment and could not interfere with the proper administration of justice. On 8 July 2003 the Regional Court upheld the decision of 25 June 2003 on appeal. 29. On 26 August 2003 the District Court granted the prosecutor's request for a forensic psychiatric examination of the victim and stayed the proceedings, which were resumed on 18 December 2003. 30. On 16 June 2004 the District Court found the applicant guilty of sexual assault of a minor and sentenced him to eight years' imprisonment. The applicant was placed in custody on the same day. According to the Government, the trial comprised nineteen hearings. Eight of them were adjourned because of the witnesses' failure to appear in court. 31. On 14 October 2004 the Regional Court upheld the applicant's conviction on appeal. 32. On 21 March 2006 the Presidium of the Regional Court quashed the applicant's conviction by way of supervisory review and remitted the case to the trial court for fresh consideration. The applicant was released on an undertaking not to leave town. In particular, the court indicated as follows: “The [trial] court failed to comply with the law requiring objective consideration of the case ... [and] found the applicant guilty on the basis of assumptions. The time and place of the crime as established by the court are a supposition (evening of 29 January in a flat at an unidentified address). The court's findings are not supported by the evidence examined at the trial. It failed to take into account circumstances which could have been decisive for the findings with regard to the applicant's guilt.” 33. Following the receipt of the case file, on 26 April 2006 the District Court scheduled the trial for 10 May 2006. According to the Government, the District Court held at least twenty-seven hearings. Thirteen hearings were adjourned because of the witnesses' failure to appear in court. 34. On 14 June 2007 the District Court adjourned the hearing owing to the illness of the applicant's counsel. On 2 and 23 July 2007 the hearings were adjourned since the prosecutor and the applicant's counsel were on vacation. 35. On 10 December 2007 the District Court acquitted the applicant. As regards the confession written by the applicant on 30 January 2002, the court accepted his explanation that it had been dictated to him by the police officers and dismissed it as inadmissible evidence. The court further noted that the applicant's version of the events in that regard had been corroborated by other evidence examined by the court. 36. According to the Government, on 19 December 2007 the Regional Court upheld the applicant's acquittal on appeal. 37. On 31 January 2002 the applicant was questioned by investigator E. in connection with the criminal case against him. The applicant refused to answer her questions in the absence of a lawyer and informed her that the police officers had beaten and tortured him to make him confess. 38. On 1 February 2002 the applicant met the district prosecutor Ger. The prosecutor allegedly refused to accept the applicant's written statement concerning the ill-treatment and advised him to submit it to the investigator in charge of the criminal case against him. The investigator agreed to take the statement only on 5 February 2002. On 7 February 2002 the applicant reiterated his allegations during questioning in the presence of the lawyer. On 15 February 2002 the investigator registered the applicant's complaint and forwarded it to the prosecutor's office. 39. On 23 April 2002 the Kirovskiy District Prosecutor's Office opened a criminal investigation. On 15 May 2002 the applicant was granted victim status. 40. On an unspecified date the investigator questioned Ts. and V., two women who had facilitated the applicant's arrest. According to them, Ts. had told the applicant that the police would arrest him and he had hit her in the face. She had punched him back and scratched his face. V. could not provide any details with regard to the incident as she had been severely inebriated at the time of the alleged altercation between Ts. and the applicant. 41. On 4 May 2002 the investigator questioned T., a security guard from a private company, who had taken the applicant to the police station. He provided the following account of events: “I entered the shop and asked the shop assistant why she had called us. [She] said that the women had asked her to do it. I went out of the shop. There were two women and a man in camouflage clothing. He was holding [the applicant]. A nine-year-old boy was standing next to them. The women told us that [the applicant] was selling the boy to the passing-by drivers. We took [the applicant] and the boy into [our] car. We did not use truncheons or physical force against the applicant since [he] was calm. We took [the applicant] and the boy to [the police station]. The applicant was seated on a bench. He was not put in a cell while I was at the police station, where I spent 20-30 minutes... I don't think that [the applicant] had any abrasions or injuries. [He] was decently dressed and clean.” 42. On 17 May 2002 the investigator questioned N., an officer on duty at the police station on 30 January 2002. N. submitted as follows: “Then I brought [the applicant] to an administrative cell where there were three men being held. While I was booking another person, the detainees started a fight with [the applicant]. I immediately opened the cell to take [the applicant] out, but [the others] had already hit him several times. I took [the applicant] out of the cell. He had blood over his face. I think his lip was cut. I took him to [the bathroom] where [he] washed his face. After that I did not place him in the cell as the other detainees kept shouting obscenities about him.” 43. On 18 May 2002 the investigator questioned Ya., one of the persons detained with the applicant, who provided the following account of the events: “In the night of 29 January 2002 I was taken to [the police station]. I was placed in an administrative cell... There were two other men held there. They were in their thirties. Later another man, who was arrested for the sexual assault of a boy, was brought to [the police station]. I heard the policemen talk about it. That man was not placed in the cell. He remained seated on a bench. I remember that the other detainees and myself asked him for a cigarette. He did not give us any although he was smoking. I was let go at about 3 a.m. ... While I was at the police station, that man was not placed in the cell with other detainees. There were no conflicts or altercations between him and others... I did not see any injuries on his face.” 44. On 20 May 2002 the investigator questioned K., another person held at the police station on 30 January 2002. She submitted as follows: “When my brother and myself were brought to [the police station], [the applicant] was already there. When other men heard why he had been arrested, they started swearing, but I would not say that they were aggressive. In my presence [the applicant] was not placed in the cell. He either walked around or sat on one of the chairs. Then the policemen took him away. At that time he was wearing clean clothes. He had no injuries on his face.” 45. On 27 November 2002 a forensic expert examined the relevant medical documents concerning the applicant and concluded as follows: “According to the medical documents concerning the medical aid provided to [the applicant] on 30 January 2002, [he] had numerous bruises of the soft tissue, scratches on the face, neck, back and hands, and abrasions on the back and chest. None of them caused any health impairment or loss of working capacity. It is impossible to determine the origin and the time of the said injuries since the medical documents do not contain any specific details (of their size, shape, colour and nature).” 46. K.'s brother submitted that he had very poor eyesight and had slept all the time after he had been placed in a cell with another man. 47. On an unspecified date the investigator questioned other persons who had been detained at the police station on 30 January 2002. B. confirmed that the applicant had been placed in the cell with other men who had beaten him. She further submitted that, after the applicant's placement in the cell, she had heard loud voices and sounds of a fight. Ro. and Ru. told the investigator that they had been brought to the police station from a sobering-up centre and that they had not been put in a cell. According to the documents submitted by the Government, no attempt was made to question Z., Kov., Dzh., Kon. and Kh., who had also been detained at the police station on 30 January 2002. 48. On an unspecified date the investigator commissioned a graphological forensic examination of the applicant's handwritten confession. The expert report stated as follows: “[The applicant] wrote the confession on 30 January 2002 under the influence of a temporary natural distraction which could have been external (uncomfortable position) or internal (unusual state caused by extreme emotional disturbance, restraint, irritation, etc.) or both. It is impossible to determine the type of distraction (external or internal) or its source.” 49. In 2002 and 2003 the proceedings were discontinued on seven occasions. Each time the investigator closed the file for lack of corpus delicti and the supervising prosecutor quashed the relevant decision, noting that the investigation had been incomplete and based on insufficient and inconclusive evidence. On 12 April 2003 the investigator closed the case once more. Her decision was upheld by the District Court on 5 January 2004. On 17 February 2004 the Regional Court quashed the decision of 5 January 2004 and discontinued the proceedings, noting that the thrust of the applicant's complaint was to challenge the validity of the confession he had made on 30 January 2002 and that the lower court had not been in a position to consider it. 50. On 13 January 2006 the Krasnoyarsk Region First Deputy Prosecutor quashed the decision of 12 April 2003 and reopened the case. 51. On an unspecified date the investigator commissioned a forensic examination of the applicant's clothing, which did not reveal any traces of blood on the clothes, including the underwear. As regards the applicant's damaged jacket, the expert submitted as follows: “The damage to the back of the applicant's jacket is a tear which resulted from overstretching of the loosest part of the fabric, probably when some part of the jacket (the sleeve or the front) was yanked in the course of a fight. It is impossible to determine the source of the damage (whether it could have been a rubber truncheon).” 52. The case was closed again on 17 February 2006. Relying on the medical documents, including the forensic report of 27 November 2002, the medical forensic report that showed that there had been no blood on the applicant's clothes, the statements made by Ts., V., the police officers on duty on the day of the applicant's arrest, the persons detained with the applicant at the police station and the alleged perpetrators, the investigator noted, in particular, as follows: “The preliminary investigation has demonstrated that all the bodily injuries incurred by [the applicant] were caused by Ts. and V. and subsequently [the detainees] in the administrative cell. However, in an attempt to render inadmissible the evidence obtained against [the applicant], he denies those facts, alleging that the injuries were inflicted by the police officers...” 53. On 15 August 2007 the Deputy Regional Prosecutor quashed the decision of 17 February 2006 and reopened the case owing to the incompleteness of the investigation. 54. On 17 September, 14 December 2007 and 21 January 2008 the investigation was stayed pending various forensic expert examinations. It appears that the investigator commissioned an additional forensic medical examination of the applicant's injuries and an examination of the applicant's handwritten confession. 55. According to the medical forensic examination of 18 September 2007, the applicant had spots on the left part of his body which could have been caused by the impact of a blunt object or objects under any circumstances from at least three to six months before the examination. The expert could not determine the cause and exact time of the injuries owing to the scarcity of information in the relevant medical documentation. 56. According to the expert report concerning the applicant's handwritten confession, the expert was unable to conclude whether the applicant had been in a state of fear or under psychological or physical pressure owing to the insignificant volume of the text submitted for examination. 57. On 26 March 2008 the investigation was resumed and a month later it was closed again. The investigator noted that the applicant's allegations had not been supported by any other evidence gathered. He relied, inter alia, on the testimonies provided by Ts. and V., the police officers on duty at the police station on the day of the applicant's arrest, the alleged perpetrators, including Nik., who claimed that the applicant had confessed voluntarily to the crime, and the persons detained at the police station, and forensic reports. The investigator summed up his conclusion as follows: “The evidence gathered in the course of the investigation is not sufficiently reliable to show that the applicant was subjected to psychological and physical pressure, including ill-treatment, by the policemen. It has been established in the course of the investigation that the bodily injuries incurred by [the applicant] resulted from an altercation with Ts. and V. and subsequently from his placement in the administrative cell. ... No proof has been established in the course of the investigation to support [the applicant's] allegations. Accordingly, there are grounds to believe that [the applicant] has intentionally concealed the circumstances in which he was beaten in order to mislead the investigation.” 58. Until 1 July 2002 criminal-law matters were governed by the Code of Criminal Procedure of the Russian Soviet Federative Socialist Republic (Law of 27 October 1960, “the old CCrP”). From 1 July 2002 the old CCrP was replaced by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, “the new CCrP”). 59. The Russian Constitution of 12 December 1993 provides that a judicial decision is required before a defendant can be detained or his or her detention extended (Article 22). Under the old CCrP, a decision ordering pre-trial detention could be taken by a prosecutor or a court (Articles 11, 89 and 96). The new CCrP requires a decision by a court on a reasoned request by a prosecutor supported by appropriate evidence (Article 108 §§ 1 and 36). 60. Before 14 March 2001, pre-trial detention was authorised if the accused was charged with a criminal offence carrying a sentence of at least one year's imprisonment (Article 96). The amendments of 14 March 2001 repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they had committed. The new CCrP reproduced the amended provisions (Article 97 § 1 and Article 108 § 1) and added that a defendant should not be remanded in custody if a less severe preventive measure was available. 61. Under the new CCrP, “preventive measures” include an undertaking not to leave a town or region, personal surety, bail and detention (Article 98). If necessary, the suspect or accused may be asked to give an undertaking to appear (Article 112). When deciding on a preventive measure, the competent authority is required to consider whether there are “sufficient grounds to believe” that the accused would abscond during the investigation or trial, reoffend or obstruct the establishment of the truth (Article 97). It must also take into account the gravity of the charge, information on the accused's character, his or her profession, age, state of health, family status and other circumstances (Article 99). 62. Before 15 June 2001 the old CCrP set no time-limit for detention pending trial. On 15 June 2001 a new Article 239-1 entered into force which established that the period of detention during the trial could not generally exceed six months from the date on which the court received the file. However, if there was evidence to show that the defendant's release might impede the thorough, complete and objective examination of the case, a court could – of its own motion or following a request by a prosecutor – extend the detention by no longer than three months. These provisions did not apply to defendants charged with particularly serious criminal offences. The new CCrP provides that the term of detention during the trial is calculated from the date on which the court received the file up to the date on which the judgment is given. The period of detention during the trial may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3). 63. In response to a complaint alleging a criminal offence, the investigator is under an obligation to verify the complainant's allegations (Article 144 of the new CCrP). 64. Should there be sufficient grounds to believe that a crime has been committed, the investigator initiates a criminal investigation (Article 145 of the new CCrP). 65. Every person who has been acquitted has a right to rehabilitation, which includes compensation for pecuniary and non-pecuniary damage and reinstatement of his or her employment, pension, housing and other rights (Article 133 of the new CCrP). 66. A person who is acquitted after a criminal prosecution may recover, inter alia, lost earnings, pension and other benefits as well as legal fees and other litigation expenses he or she incurred (Article 135 of the new CCrP). 67. The following provisions of the Russian Civil Code are relevant to the present case: Article 1070: Responsibility for damage caused by unlawful acts of investigative authorities, prosecuting authorities and courts “1. Damage caused to a person as a result of unlawful conviction, unlawful criminal prosecution, ... unlawful pre-trial detention ... shall be compensated [by the State] ... in full, irrespective of the fault of the [police], prosecutor's office or the court.” Article 1100: Grounds for compensation for non-pecuniary damage “Compensation for non-pecuniary damage shall be afforded irrespective of the fault of the tortfeasor if: ... the damage is caused to a person as a result of his unlawful conviction, unlawful criminal prosecution, [or] unlawful pre-trial detention...”