CASE OF MOSTIPAN v. RUSSIA
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković
5. The applicant was born in 1973 and is currently serving a prison sentence in Bozoy, Irkutsk Region. 6. According to the applicant, and not contested by the Government, at approximately 11 p.m. on 5 April 2007 she was arrested on suspicion of abducting, raping and murdering S. According to the arrest record, she was arrested at 3.30 a.m. on 6 April 2007. 7. Following the arrest, the applicant was taken to a police station where she was questioned by an investigator in the presence of a lawyer. Prior to the questioning, she wrote a statement admitting to S.’s abduction. According to her, police officers threatened to beat her if she refused to make a written statement. She did not explain whether she had been denied access to a lawyer prior to writing the statement. 8. According to the applicant, on the morning of 6 April 2007 she was taken to the town prosecutor’s office. She was taken to an office where policemen started beating her and urging her to confess to S.’s murder. They hit her on the head and threatened to rape her, and then handcuffed her and pushed her to the floor. They put a hat on her head and pulled it down over her eyes. They also threw a coat over her. They punched her in the solar plexus and the stomach, and pulled her by the legs. They attached a wire to her right leg and placed a metal object between her shoulders, then subjected her to electrocution while gagging her mouth to muffle her screams. 9. On the same day the applicant was questioned by the investigator and confessed to S.’s abduction. She was later taken to the location where she had last seen S. alive and was questioned again afterwards. The applicant’s lawyer was present during the questioning. 10. Later that day the applicant was taken to a temporary detention centre, where an officer conducted a medical examination and noted numerous bruises on her belly and scratches below the right clavicle. It appears that the administration of the detention facility informed the investigator from the town prosecutor’s office accordingly, who ordered that the applicant undergo a forensic medical examination. 11. At approximately 5 or 6 p.m. that evening the applicant underwent a forensic medical examination which, in addition to the injuries noted before, revealed two bruised areas on her chest, possibly caused by blunt solid objects one to two days before the examination. At the time, the applicant did not offer any explanation as to the cause of the injuries. 12. On 13 April 2007 the investigator questioned the applicant again the in the presence of her lawyer. She denied having any intent to kill S. According to her, it was two other co-defendants who had decided to do so. 13. On 10 May 2007 a local newspaper published an article about S.’s murder and the opening of the investigation. The names of the alleged perpetrators were not disclosed. 14. On 28 June 2007 the town prosecutor’s office received a complaint from the applicant alleging that she had been ill-treated. 15. On 10 March 2008 investigator T. from the town prosecutor’s office refused to open a criminal investigation into the applicant’s and her codefendants’ allegations of ill-treatment in police custody. The investigator noted as follows: “In the course of the investigation, [the applicant and three other defendants] alleged that their initial statements had been coerced by police officers and the prosecutor’s office and were false. In addition, the medical examination conducted revealed that they had sustained injuries. However, in the course of the investigation ... the [defendants’] statements were obtained in accordance with the rules of criminal procedure. The [defendants’] allegations should be considered with criticism. They are charged with serious offences. They have not pleaded guilty and wish to evade criminal liability. Accordingly, no objective information has been found that would confirm the defendants’ allegations that they sustained injuries while in [custody].” 16. It appears that the applicant’s allegations of ill-treatment in police custody were subject to additional pre-investigative inquiry. On 10 September 2008 investigator M. from the regional prosecutor’s office refused to open criminal proceedings against the alleged perpetrators. He took into account the fact that the applicant had been convicted as charged (see paragraph 22 below). He further relied on statements made by the police officers involved in the applicant’s arrest and questioning, who denied having beaten or tortured her. He summarised his findings as follows: “The analysis of the collected material shows that the [applicant’s] allegations of illtreatment are not confirmed by objective information and are refuted by the explanations provided by the police officers and investigators from the town prosecutor’s office. [The applicant] complained of ill-treatment after a considerable length of time, and only when she was charged with serious offences, even though nothing had precluded her from communicating her complaint to the investigator who had questioned her in the presence of a lawyer or during the inspection of the crime scene or subsequent questionings, etc. Furthermore, when admitted to the temporary detention facility, [the applicant] did not complain of her injuries allegedly inflicted by police officers. In the absence of a forensic medical examination, it is impossible to determine that [the applicant] sustained the injuries, the degree of their severity, the time of their infliction, or their cause. Regard being had to the above, it should be concluded that the [applicant’s] allegations of ill-treatment should be considered with criticism and viewed as an attempt by [the applicant] to avoid criminal liability for the serious crimes committed. Such a conclusion is substantiated by the [applicant’s] conviction by the Irkutsk Regional Court ... [Her] allegations of ill-treatment were subject to verification by the court, which ruled [that there was] no case to answer against the police officers and investigators from the prosecutor’s office, who had not abused their powers or infringed the [applicant’s] rights in contravention of the law.” 17. On 18 June 2009 investigator T. refused to institute criminal proceedings against the police officers who had allegedly subjected the defendants to ill-treatment following their arrest. The parties did not provide a copy of this decision. 18. On 26 October 2009 the Irkutsk Regional Court, within the framework of the trial, issued a separate ruling concerning the applicant’s and other defendants’ allegations of ill-treatment in police custody, advising the regional prosecutor that an additional inquiry should be conducted. In the ruling, the court considered that the inquiry conducted in response to the defendants’ complaints had been incomplete. In particular, the court stated as follows: “In the course of the trial, each of the defendants alleged that they had been subjected to physical and psychological pressure by law-enforcement officers ... who demanded that they confess to [the crimes] ... As it transpires from the material in the case file, during the preliminary investigation in the present case each of the defendants lodged complaints with the [town] and [regional] prosecutors’ offices alleging an abuse of power and the use of force by law-enforcement officers ... Following the inquiry in response to the [applicant’s] complaint, on 10 September 2008 [senior investigator M. from the investigating committee of the regional prosecutor’s office] refused to institute criminal proceedings on [the grounds that] no offence had been committed. ... The court cannot subscribe to [M.’s] finding that it was impossible to establish objectively that [the applicant] had bodily injuries because [allegedly] she had not undergone a forensic medical examination ... [T]he material in the case file ... contains information showing that all the defendants had sustained bodily injuries ... For instance, witness Sh., who saw [the applicant] immediately prior to [her] arrest ... and witness Shin., [one of the police officers] who had taken [the applicant] to [the police station] on the night of 6 April 2007 testified that [she] did not have any visible injuries and ... did not complain about her health to Sh. ... The records on the initial examination and registration of provision of medical aid to detainees admitted to [the temporary detention centre] ... contain the following entries ... On 6 April 2007 [the applicant] had bruises on her body ... On 7 April 2007 [she] had bruises on the abdomen and scratches on the right clavicle. The findings of the forensic medical experts are as follows ... [The applicant] had bruises on the abdomen and two areas of subcutaneous haemorrhage on the right side of the chest which were caused by the impact of blunt solid objects approximately one to two days ago and could not cause damage to her health. The origin of the injuries was not indicated. [The applicant] did not inform the forensic medical expert as to the origin of the bodily injuries. In 2008, when conducting an inquiry in response to the [applicant’s] complaint, investigator M. did not examine the findings of the forensic medical expert ... at all. ... Regard being had to the above, the court considers that ... investigator M. ... did not conduct a comprehensive and objective inquiry in response to the [applicant’s] allegations of [ill-treatment]. The investigator’s decision ... does not contain an answer as to how and when [the applicant] sustained bodily injuries. In accordance with the [statutory] rules of criminal [procedure], no party to the proceedings can be subjected to abuse, torture or other inhuman or degrading treatment. Accordingly, the court draws the prosecutor’s attention to the fact that a comprehensive and thorough examination is necessary in order to verify the defendants’ allegations of ill-treatment.” 19. On 26 November 2009 the investigating committee of the regional prosecutor’s office informed the Irkutsk Regional Court, in response to the decision of 26 October 2009 (see paragraph 18 above), that investigators M. and T. had been subjected to a disciplinary warning and reprimand respectively for failing to properly discharge their duties. According to the first deputy head of the investigating committee, the decision of 18 June 2009 had been reversed and the committee had conducted an additional preinvestigative inquiry into the defendants’ allegations of ill-treatment. The Government did not submit a copy of this decision or state whether its content had been communicated to the applicant. 20. According to the Government, on 6 December 2009 the investigating committee refused to open a criminal investigation into the applicant’s allegations. The Government did not submit a copy of this decision or state whether its content had been communicated to the applicant. 21. On an unspecified date the investigation against the applicant and the three other co-accused was completed and the case was transferred to the Irkutsk Regional Court for trial. 22. On 29 August 2008 the court found the applicant guilty as charged and sentenced her to twenty years’ imprisonment. 23. On 31 March 2009 the Supreme Court of the Russian Federation quashed the applicant’s conviction on appeal. The court noted that the trial court had failed to ensure the defendants’ right to an adequate defence and had held hearings in the absence of defence counsel. 24. During the new trial, the applicant admitted that she had participated in S.’s abduction and battery but denied any involvement in organising S.’s rape and murder. She further claimed that she had been subjected to illtreatment while in police custody and forced to confess. 25. In response to the applicant’s allegations of ill-treatment by police officers, the trial court questioned forensic expert R., who had examined the applicant on 6 April 2007. R. confirmed his earlier findings and stated that the applicant might have sustained the injuries at least twenty hours prior to the examination. He also considered it impossible, given the nature of the applicant’s injuries, that she had been subjected to electrocution. 26. On 26 October 2009 the Regional Court found the applicant guilty as charged and sentenced her to sixteen years’ imprisonment. The court relied, inter alia, on her statements of 6 and 13 April 2007. As regards the written statement made prior to her first questioning by the investigator (see paragraph 7 above), the court considered it admissible in so far as she had informed the investigator about S.’s abduction. The court also considered admissible the record of the applicant’s questioning by the investigator. In this connection, it noted that prior to the questioning the applicant had been advised of her rights, and had been assisted by a lawyer throughout. The applicant appealed. 27. On 17 March 2010 the Supreme Court reclassified the charges against the applicant to bring them in line with amendments to the Russian Criminal Code and reduced her sentence by two years. The court also upheld on appeal the Regional Court’s findings concerning the inadequacy of the inquiry in response to the defendants’ allegations of ill-treatment.