CASE OF AGARKOVA v. RUSSIA
Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova
5. The applicant was born in 1945 and lives in Kaliningrad. 6. On 17 January 2007 the applicant’s son, Mr Pavel Agarkov, was taken to the Kaliningrad Emergency Hospital (больница скорой медицинской помощи г. Калининграда) with a severe head trauma. He lapsed into a coma a week later, and died on 1 February 2007. 7. On 5 February 2007 the Moskovskiy District Prosecutor’s Office of Kaliningrad (“the District Prosecutor’s Office”) received a pre-investigation inquiry file containing evidence of the elements of a crime under Article 111 § 4 of the Criminal Code (intentional infliction of serious bodily harm causing the victim’s death). 8. The pre-investigation inquiry established that at about 5 a.m. on 17 January 2007 the applicant’s son had started a fight with a certain V. In the course of the fight the applicant’s son had inflicted several blows on V. with a wooden baseball bat. On the third blow the bat had struck a wall and had broken into two pieces. The applicant’s son had continued to beat V. with his bare hands and kick him with his feet. V. had then managed to pick up a fragment of a broken bat and had hit the applicant’s son several times on the head, causing the latter the physical injuries that resulted in his death on 1 February 2007. 9. On 15 February 2007 an investigator of the District Prosecutor’s Office issued a decision refusing the institution of criminal proceedings against V., being of the opinion that V. had acted in necessary self-defence. 10. On 26 February 2007 the District Prosecutor set aside the above decision. Criminal proceedings into the death of the applicant’s son were instituted on the same day (criminal case no. 030292/07). 11. On 7 March 2007 V. confessed to having inflicted on the applicant’s son bodily injuries which caused his death. On the same day a preventive measure in the form of an undertaking not to leave the town and to behave properly was imposed on him. 12. On 14 March 2007 V. was charged with homicide committed as a result of exceeding the limits of necessary self-defence (Article 108 § 1 of the Criminal Code). He was questioned as an accused and fully acknowledged his guilt in relation to the actions with which he was charged. 13. On 19 March 2007 two fragments of the baseball bat were seized and examined by the investigator. 14. On 22 March 2007 the applicant was admitted to the proceedings as an aggrieved party. She was questioned by the investigator the same day, but could not submit any information regarding the circumstances of her son’s death. During her additional questioning as a victim on 7 April 2007 she stated that her son had told her that he had been beaten by police officers from the Moskovskiy District Department of the Interior of Kaliningrad (ОВД Московского района г. Калининграда). 15. The investigation established that on 17 January 2007 officers from the Moskovskiy District Department of the Interior of Kaliningrad had arrived at the scene of the incident in order to stop a disturbance of public peace caused by the applicant’s son’s unlawful actions. Upon his arrival at the police station the police officers, having assessed the victim’s medical condition as critical, called an ambulance for him. 16. On 6 April 2007 during an on-site verification of his testimony, V. demonstrated with the help of an assistant and an improvised object how the applicant’s son had struck him with a wooden baseball bat, how this bat had broken when it struck the wall, and how he had afterwards inflicted several blows on the applicant’s son’s head with a fragment of this bat. 17. On 23 April 2007 the forensic medical examination was carried out, establishing that the applicant’s son’s death had been caused by an open blunt traumatic brain injury accompanied by contused head wounds and bruises, haemorrhages in the soft tissues of the head, fractures of the skull bones, haemorrhages above and under the layers of mater, complicated by brain oedema and compression (forensic medical report no. 39/696). 18. On 10 May 2007 the District Prosecutor approved the bill of indictment and referred the case to the Moskovskiy District Court of Kaliningrad (“the District Court”) for examination on the merits. 19. On 22 October 2007 the District Court returned the criminal case to the Prosecutor for re-drafting of the bill of indictment and remedying of deficiencies that prevented examination of the case, in particular, the formulation of exactly how V.’s actions had exceeded the limits of necessary self-defence. 20. On 29 December 2007 the chief investigator from the Kaliningrad investigative division of the Investigation Department of the Investigative Committee at the Russian Federation’s Prosecutor’s Office for the Kaliningrad Region (“the Kaliningrad investigative division”) discontinued the criminal proceedings, having arrived at the conclusion that the injuries resulting in the death of the applicant’s son on 1 February 2007 had been inflicted by V. as actions of necessary self-defence. The decision was not supported by reference to any evidence. 21. On 18 January 2008 the Deputy Head of the Kaliningrad investigative division set aside the above decision and ordered a fresh investigation. 22. Subsequently, between 23 February 2008 and 29 October 2009 the criminal proceedings were discontinued and resumed on nine occasions. Three of the decisions, namely those of 23 February, 23 May and 30 June 2008, repeated word for word the previous decision of 29 December 2007. The following six decisions, namely the decisions of 22 November 2008 and 8 January, 20 February, 15 July, 29 August and 29 October 2009, reached the same conclusion, relying on: - forensic medical report no. 39/696 of 23 April 2007 (see paragraph 17 above); - statements by V. submitting that on 17 January 2007 he had had a fight with the applicant’s son and had administered to the latter at least two blows to the head with a piece of broken baseball bat, following which he had called the police, who had taken the applicant’s son to the police station; - statements by witnesses T. and P. who were present at the scene of the fight and confirmed V.’s statements; - statements by police officer Erk, who arrived at the scene and saw the applicant’s son squatting down, with blood streaming from his head and a bruise below his eye; he submitted that the applicant’s son, V., T. and P. had been taken to the police station, following which an ambulance had been called for the applicant’s son as his head was bleeding; no violence had been used against the latter; - statements by duty officer Tr., who had received information about the fight and had seen the applicant’s son brought to the police station in a state of alcoholic intoxication, with a lacerated wound in the region of one eye and several abrasions, following which an ambulance had been called to take him to hospital; he submitted that nobody in his presence had subjected the applicant’s son to any beatings; - similar statements by duty officer Ser.; - statements by operative agent Mir., who saw the applicant’s son at the police station with injuries to his body; he submitted that he had not seen anybody beating the applicant’s son at the police station; - statements by witness F., who arrived at the police station having been told that the applicant’s son had been taken there; however, she had then been informed that the latter had been taken to hospital to be treated for his injuries; she further submitted that in the hospital the applicant’s son told her that he had been beaten up by the police in the entrance to V.’s house; - statements by witness G., who had accompanied the applicant’s son in his car to the scene of the fight; he submitted that the applicant had told him that he had a score to settle with a man called “Erik” who had cooperated with the police; he had seen the applicant’s son knock on a window and enter the building with a baseball bat in his hands; about fifteen minutes later he had seen the police arrive at the exit from the building; the applicant’s son had been walking unassisted, he had not been handcuffed, but had been holding his head; one of the police officers had been holding a plastic bag containing two fragments of the baseball bat; the applicant’s son had got into the police car and been taken to the police station; he had not seen anybody hitting the applicant’s son or threatening him; - statements by the applicant, who submitted that her son had told her that he had been beaten up by the police; - statements by witness Min., who had heard about the fight from V.; - statements by witness Mot., who had heard about the fight from T.; - statements by neighbours Sukh. and Tishch., who knew nothing about the events in question; - statements by witness Gor., the applicant’s son’s partner, who had been told by the applicant’s son that he had been beaten by the police; - statements by witness Ven., who was receiving treatment in the hospital at the time when the applicant’s son was admitted and who submitted that the latter had told him that he had sustained the injuries through being beaten with a baseball bat; - the police station’s registration log, which contained no mention of the applicant’s son being arrested on the 17 January 2007; - expert report no. 366, according to which V. had an abrasion on his right forearm which could have been caused on 17 January 2007 by a blow from a hard blunt object; - expert report no. 250 on the examination of a sample of the applicant’s son’s skin from the left half of the parietal region of the head containing well-defined diffuse microinclusions of iron; - expert report no. 52 of 2 July 2008 stating that the applicant’s son’s open blunt brain injury had been caused by a combination of traumatic impacts in the region of the head which could have resulted from the circumstances described by V., that is to say by the infliction of multiple blows by a baseball bat fragment in the region of the head. 23. In the meantime, the applicant repeatedly challenged the adequacy of the investigation alleging the involvement of police officers in the death of her son. In particular, she complained about the failure of the investigator to inform her of the decisions taken in the case and to explain the possible avenues for appeal. She further complained about the refusal of her requests for information about the exact time when V.’s call was registered at the police station, the exact time when her son was brought to the police station and when the ambulance was called for him. The applicant also sought to have clarified the reasons why her son had not been questioned about the circumstances of the incident during the week before he lapsed into a coma, to obtain an expert examination of the bloodstains on his clothes which could have clarified whether he had been standing up or lying down when he sustained his injuries, and an expert examination which could have clarified the origin of metal particles found in the wounds of her son. 24. In response to her complaints, the District Court on 18 August, 5 September, 26 September and 12 December 2008 found the investigator’s refusals and lengthy inactivity unlawful and unjustified and ordered him to remedy the above deficiencies by conducting a thorough and comprehensive investigation. 25. On 16 December 2008 the applicant’s son’s clothes were seized from the applicant for expert examination. 26. On 14 September 2009 the District Court found the investigator’s inactivity unlawful, having noted that when taking the decision of 15 July 2009 the investigator had failed to comply with his own ruling of 10 July 2009 granting the applicant’s requests. 27. On 13 January 2010 the Deputy Head of the Investigative Committee at the Russian Federation’s Prosecutor’s Office for the Kaliningrad Region set aside the decision of 18 January 2008 (see paragraph 21 above) as having been taken in violation of the criminal procedure. As a result, all the evidence obtained after 18 January 2008 was found inadmissible. 28. On 15 January and 22 January 2010 forensic biological and forensic trace examinations of the applicant’s son’s clothes were ordered, which duly established that the latter had been in an upright position, or close to such a position, when the bloodstains appeared on his clothes (report no. 32 of 12 February 2010). 29. On 22 January 2010 a forensic medical examination by an expert commission was ordered. The examination established that the open blunt traumatic brain injury inflicted on the applicant’s son had been caused by at least five traumatic impacts, and that it could have arisen in the circumstances indicated by the accused V. during his questioning on 7 March 2007 and the on-site verification of his testimony on 6 April 2007 (see paragraphs 11 and 16 above) (report no. 13 of 9 February 2010). 30. On unspecified dates the applicant and the witnesses were questioned for a second time and confirmed their previous statements. 31. Between 14 February 2010 and 21 February 2012 the criminal proceedings were discontinued on five occasions on the grounds of absence of the constituent elements of a crime under Article 108 § 1 of the Criminal Code in the actions of V., and were subsequently resumed. 32. On 4 May 2012 the District Court found the decision of 21 February 2012 unlawful and unsubstantiated. The District Court also found unlawful the investigator’s failure to notify the applicant of the procedural decisions taken in reply to her requests. 33. On 6 July 2012 the acting head of the Moskovskiy District of the Kaliningrad investigative division set aside the decision of 21 February 2012. 34. On 6 August 2012 the investigator for the Moskovskiy District from the Kaliningrad investigative division discontinued the criminal proceedings. The decision noted that the investigation had identified the constituent elements of a crime under Article 108 § 1 of the Criminal Code in the actions of V. However, since the crime belonged to the category of minor crimes and had been committed over two years earlier, in 2007, V. was to be exempted from criminal liability pursuant to Article 78 § 1 (a) of the Criminal Code (exemption from criminal liability due to expiration of statutory time-limits for criminal prosecution). 35. On 5 December 2012 the acting head for the Moskovskiy District of the Kaliningrad investigative division took the decision to resume the proceedings in view of the necessity of conducting psycho-physiological expert examinations − using a polygraph − of the police officers who had brought the applicant’s son to the police station so as to verify the veracity of their statements. 36. According to information contained in the case file, the proceedings were still pending in December 2012. 37. The case file contains no information regarding further developments in the investigation of the circumstances surrounding the applicant’s son’s death. 38. On 28 December 2007 the applicant sought the institution of criminal proceedings against the police officers allegedly involved in the death of her son. 39. On 6 June 2008 the chief investigator of the Kaliningrad investigative division issued a decision refusing the institution of criminal proceedings against officers Erk., K., Tr. and Ser. of Kaliningrad’s Moskovskiy District Department of the Interior under Articles 285 and 286 of the Criminal Code (abuse of power by an official, actions of a public official which clearly exceed his or her authority). 40. On 14 July 2008 the Deputy Head of the Kaliningrad investigative division set aside the above decision and ordered a fresh pre-investigation inquiry. In particular, the investigator was instructed to assess the actions of the police officers under Articles 125 (leaving without help a person in danger) and 306 (knowingly false accusation) of the Criminal Code. 41. On 24 July 2008 the investigator of the Kaliningrad investigative division again issued a decision refusing the institution of criminal proceedings against officers. 42. On 26 September 2008 the District Court found the above decision unlawful. The District Court established that no fresh inquiry had been conducted and that the instructions given in the decision of 14 July 2008 had not been complied with. 43. On 18 November 2008 the Kaliningrad Regional Court (“the Regional Court”) upheld the decision of 26 September 2008 on appeal. 44. On 8 February 2010 the Kaliningrad investigative division’s investigator refused to open criminal proceedings against the police officers under Articles 125, 285 and 286 of the Criminal Code on the grounds that the constituent elements of a crime were absent in their actions. 45. On 19 August 2010 the District Court found the above decision lawful. The applicant did not appeal. 46. On 25 December 2008 the applicant brought civil proceedings against the Ministry of Finance seeking compensation in respect of nonpecuniary damage caused to her by the failure of the domestic authorities to investigate her son’s death. 47. On 31 March 2009 the Tsentralniy District Court of Kaliningrad dismissed the applicant’s claims. 48. On 20 May 2009 the Kaliningrad Regional Court upheld the judgment on appeal.