CASE OF BARABANSHCHIKOV v. RUSSIA
Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Non-pecuniary damage - award
Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
6. The applicant was born in 1961 and lives in the village of Terbuny, Lipetsk Region. 7. On 7 August 2001 the applicant bought sugar from Ms D. He paid with a hundred-dollar note. When Ms D. attempted to exchange the note for Russian roubles, she was told that the note was counterfeit. Ms D. lodged a complaint with the Lipetsk Town Police Department alleging that the applicant had given her a counterfeit note. 8. On the same day police officers stopped the applicant’s car and arrested him on suspicion of fraud and use of counterfeit currency. During his arrest the applicant attempted to pass several dollar notes to his friend, who returned the notes to the applicant following an order from a police officer. 9. The applicant was taken to the Oktyabrskiy District police station. 10. According to the applicant, he refused to answer the investigator’s questions and police officers hit him several times with rubber truncheons on the head, back and legs. The beatings alternated with admonitions to confess his guilt. A police officer twice punched the applicant on the ear and once hit him on both ears with both hands at the same time. The police officers continued hitting the applicant’s legs and head with rubber truncheons. The applicant tried to shy away from the punches, but once he bent forward on the chair, he received a series of truncheon blows to his chest and back. The applicant fell on the floor. The policemen continued hitting and kicking him on the back and legs. They forced the applicant to confess to the use of counterfeit currency. 11. The Government submitted that after the applicant had been taken to the police station, an investigator of the Lipetsk Town Police Department, Ms Z., had questioned him. The applicant confessed that he had been involved in the distribution of the counterfeit bills. In particular, he stated that he had bought three counterfeit hundred-dollar notes from an unidentified man and had asked his friend, Mr Ma., to exchange those notes for Russian roubles. Mr Ma. had told him that the notes were counterfeit and had refused to take them. On 7 August 2001 the applicant had bought sugar from Ms D. and had paid with one of those notes. The Government enclosed a copy of the applicant’s confession and the record of his questioning. At the bottom of his confession statement the applicant noted as follows: “The confession statement is handwritten by me; no moral or physical pressure [was] applied”. The Government noted that the applicant had been advised of his right to the services of counsel prior to the entry of his guilty plea. However, he had expressly waived that right, making a handwritten entry to that effect in the interrogation record. 12. On 8 August 2001 the applicant was placed in the temporary detention facility of the Oktyabrskiy District police station. According to the Government, on his admission to the facility the applicant signed an entry in a registration log that he had “a slash wound on his left forearm and a bruise on the left side of the body which he had inflicted on himself on 8 August 2001 in the Oktyabrskiy District police station” and that he had no complaints about the state of his health. The Government submitted an extract from the registration log copied by hand by a warder and certified by the head of the detention facility. According to the extract, submitted by the Government, on the same day the applicant was also examined by a prison otolaryngologist, who did not establish any signs of an ear trauma. 13. On 9 August 2001 the applicant was brought to the Oktyabrskiy District Prosecutor who authorised his placement in custody due to the gravity of the charges against him. The applicant complained to the prosecutor that the police officers had severely beaten him up after his arrest. On the same day, upon a prosecutor’s request, the police investigator, Ms Z., ordered a medical expert examination of the applicant. The relevant part of the investigator’s decision read as follows: “On 9 August 2001, when [the applicant] was brought to the Lipetsk Town Prosecutor for an authorisation of his placement in custody, [he] complained that he had been beaten up by police officers. The police officers, who had arrested [the applicant], stated that during the arrest [the applicant] had lost consciousness twice.” The investigator put several questions to an expert concerning possible injuries on the applicant’s body, their severity and nature. 14. Several hours later, at approximately 6.00 p.m., the medical expert examined the applicant. The relevant part of his report, issued on 13 August 2001, read as follows: “2.1 When examined: [there is] a bruise of a crimson and bluish colour in the projection of the 9-11 ribs on the left side, along the scapular line; [it is] moderately saturated, has a shape of a stripe [and] measures 4 centimetres in width and 7.5 centimetres in length. In the projection of the right edge of the right shoulder-blade [and] on the right side of the parietal region of the head [there are] abrasions having an elongated form, [which are] covered with dry and somewhat raising crusts and [which] measure 0.3 centimetres in width and 3.5 centimetres in length and 0.2 centimetres in width and 0.8 centimetres in length, respectively. No other injuries were discovered. Conclusions. 3.1. During the medical expert examination of [the applicant] the following injuries were discovered: a bruise on the left side of the lumbar region, abrasions on the right shoulder-blade and the right side of the parietal region of the head. 3.2. These injuries were caused as a result of traumas to the indicated body parts by a blunt firm object having a narrow, possibly elongated surface: cannot be considered as causing damage to health. 3.3. The type, character and intensity of those injuries allow the conclusion that they were caused within three to five days before the expert examination, thus not excluding the possibility that they were caused ... on 7 August 2001. 3.4. It is impossible to assess those injuries with a view to determining whether they were caused as a result of a fall or an impact (impacts) with a certain object, as the circumstances of the alleged “fall” are unknown.” 15. On 11 August 2001 a medical emergency team was twice called to the applicant following his complaints of severe heart pain and dizziness. 16. On the following day the applicant complained to warders of severe pain in the right side of the chest and back. An emergency team was called and he was taken to the Lipetsk Regional hospital. The applicant, without providing any further explanation, complained to the hospital doctors that he had been beaten up on 7 August 2001. The hospital report on the applicant’s medical examination stated the following: “1. Consultation of a urologist. Diagnosis: an injury to the right kidney. Treatment of this injury in the urological department for ten days. Subsequent supervision by a surgeon at the place of residence. 2. Consultation of an otolaryngologist. Diagnosis: two-sided adhesive otitis media, posttraumatic, deformation of the external nose and nasal septum deviation. The patient has suffered from those two conditions for a long time and [they] were not caused by a head injury received approximately a week ago. 3. Consultation of a neurosurgeon. Diagnosis: Posttraumatic asthenic syndrome. [The applicant] needs supervision by a neurologist at the place of residence...” The report also indicated that the applicant had bruises to the ribs and the right side of the back. 17. The applicant remained in the hospital until 22 August 2001. 18. On 19 October 2001 an assistant prosecutor of the Oktyabrskiy District of Lipetsk, Ms F., dismissed the applicant’s complaint about the beatings. The one-page decision read as follows: “On 8 October 2001 the prosecutor’s office of the Oktyabrskiy District of Lipetsk received documents... pertaining to the inquiry into [the applicant’s] complaints about the beatings by police officers on 7 August 2001. During the interview [the applicant] refused to give explanations about the beatings in the lawyer’s absence. After [he] was told that the lawyer’s presence was not necessary in this case, [the applicant] again refused to provide any explanations and did not substantiate his refusal. Therefore, it is impossible to establish the circumstances of the event. On the basis of the abovementioned.... [the applicant’s] request for institution of criminal proceedings against the police officers is dismissed because there is no indication of a criminal offence.” 19. On 19 November 2001 the Oktyabrskiy District Prosecutor ordered an additional inquiry into the applicant’s ill-treatment complaints. 20. Three days later the applicant unsuccessfully requested the investigator to authorise an additional medical expert examination and complained again about the beatings. 21. On 7 December 2001 the assistant prosecutor, Ms F., issued a report confirming the lawfulness of her decision of 19 October 2001. The assistant found as follows: “While being questioned, [the applicant] explained that on 7 August 2001 he had been arrested... and brought to the Oktyabrskiy District police station in Lipetsk. At the police station he had been questioned by police officers, Mr S., Mr M. and Mr Ye. During the interrogation the police officers, Mr S. and Mr Ye., had beaten [the applicant], hitting him on the head, in particular on the ears and the back of the head, and on the right side of the back and kicking him in the groin. Mr M. had not taken part in the beatings. Following the beatings, [the applicant] had written a confession statement. Mr S., who was questioned on the facts, stated that on 7 August 2001 he, together with Mr Ye. and Mr M., had talked to [the applicant] in an investigation room of the Oktyabrskiy District police station; [the applicant] had been arrested on suspicion of use of counterfeit notes. [The applicant] had voluntarily provided an explanation of the circumstances leading to his arrest. No moral or physical pressure had been applied to [the applicant]. After having talked to [the applicant], Mr S. and Mr Ye. had left, and Mr M. had stayed with [the applicant]. Mr Ye. gave identical statements. Mr M. gave statements similar to those of Mr S. and Mr Ye., adding that after Mr S. and Mr Ye. had left the room, [the applicant] had been apprised of his [rights] guaranteed by Article 51 of the Russian Constitution and the circumstances mitigating the punishment had been explained to him. [The applicant] had expressed a wish to write a confession statement... pertaining to his crime: a sale of counterfeit US dollars. During confrontation interviews in which [the applicant] participated... Mr S., Mr M. and Mr Ye. confirmed their statements. As follows from expert report no. 785 issued on 13 August 2001, [the applicant] had a bruise to the left side of the back, abrasions to the right shoulder-blade and the right side of the head, which could not be considered as causing damage to [his] health. As follows from statements by Mr P. and Mr A., police officers... from the Lipetsk Town Police Department, who had taken part in [the applicant’s] arrest on 7 August 2001, when [the applicant] had been brought to the Oktyabrskiy District police station, he had lost consciousness in the duty unit and had fallen from his own height on to the concrete floor. After he had regained consciousness, [the applicant] had explained that he had had a heart attack and had asked for medicines. They think that [the applicant] faked the fainting. Mr Za., a police officer...from the Lipetsk Town Police Department, who had also taken part in [the applicant’s] arrest, gave identical statements. During an examination of [the applicant] by an otolaryngologist... on 9 August 2001, no signs of an ear trauma were discovered. There is entry no. 1110 made on 9 August 2001 in the registration log... of the temporary detention facility of the Lipetsk Town Police Department concerning [the applicant] in which he noted that “he had inflicted a slash wound to his own right forearm and a bruise to the left side of the body on 8 August 2001 in the Oktyabrskiy District police station. He had had no complaints about the state of his health.” That entry had been made by [the applicant]; [the fact] is corroborated by his signature. In his statement made to the Oktyabrskiy District Prosecutor [the applicant] asked for an additional medical examination because he had sustained a kidney injury and had spent ten days – from 12 to 22 August 2001 – in the Lipetsk Regional Hospital undergoing treatment. Taking into account those circumstances, a forensic medical examination was performed with a view to determining the severity of the injuries sustained by [the applicant] and establishing a causal link between the sustained injuries and [the applicant’s] stay in the Lipetsk Regional Hospital where he had been diagnosed with “a kidney injury”. As follows from report no. 7320 of the forensic medical examination issued on 7 December 2001, [the applicant’s] stay in the hospital for the treatment of an injury to the right kidney was not connected to [his] injury sustained on 7 August 2001, as the initial examination had not established bruises on the chest and back, although they had been recorded on admission to the Lipetsk Regional Hospital. Thus, it can be concluded that those injuries could have been sustained by [the applicant] after his examination by the medical expert on 9 August 2001. Taking into account the above-mentioned, it should be concluded that during the inquiry [the investigator] did not obtain any objective data showing that the actions of the police officers contained elements of a criminal offence, and thus there are no grounds for quashing the decision of 19 October 2001 by which an institution of criminal proceedings was refused.” 22. The applicant learned about the decision of 7 December 2001 at the trial. 23. The applicant was additionally charged with theft and forgery of documents. On 7 December 2001 the authorised period of his detention expired. Five days later he was committed to stand trial before the Oktyabrskiy District Court of Lipetsk. The applicant lodged a complaint with the District Court, alleging that he had been ill-treated by the police officers after his arrest. 24. At the trial the applicant repeated his statements given on 7 August 2001, save for the fact that prior to his arrest he had known that the hundred-dollar notes were counterfeit. 25. On 10 January 2002 the Oktyabrskiy District Court found the applicant guilty of theft of documents and use of counterfeit currency, acquitted him of the remaining charges and sentenced him to five years and six months’ imprisonment. The District Court based its judgment, in particular, on the applicant’s testimony, statements by witnesses, a record of the search on the applicant’s person and seizure of the hundred-dollar notes, and an expert opinion indicating that the notes were counterfeit. Having examined the expert report of 13 August 2001, the hospital report of 12 August 2001, extracts from the detention facility’s registration logs pertaining to the applicant’s admission on 8 August 2001 and the prosecutor’s decisions of 19 October and 7 December 2001, the District Court dismissed the applicant’s ill-treatment complaint as unsubstantiated. 26. The applicant’s lawyer lodged an appeal statement, complaining, in particular, that the applicant had been beaten up by the police officers after the arrest. 27. On 7 February 2002 the Lipetsk Regional Court upheld the judgment. The Regional Court found that the District Court had lawfully concluded that the fact of the ill-treatment had not been proven. Several police officers testified that the applicant had fallen in the police station and had hit his head. 28. The RSFSR Code of Criminal Procedure (in force until 1 July 2002, “the CCrP”) established that a criminal investigation could be initiated by an investigator upon the complaint of an individual or on the investigative authorities’ own initiative when there were reasons to believe that a crime had been committed (Articles 108 and 125). A prosecutor was responsible for general supervision of the investigation (Articles 210 and 211). He could order a specific investigative action, transfer the case from one investigator to another or order an additional investigation. If there were no grounds to initiate a criminal investigation, the prosecutor or investigator issued a reasoned decision to that effect, which had to be notified to the interested party.