CASE OF LEONID PETROV v. RUSSIA
Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
5. The applicant was born in 1978 and lived in Cheboksary before his conviction. He is currently serving a sentence in Novocheboksarsk. 6. In April 2006 a criminal case was opened into the theft of money belonging to the applicant’s cousin, Ms G. 7. On 8 September 2006 G. was found dead in her flat with several gunshot wounds. On 9 September 2006 a criminal case was opened into her murder. 8. On 14 September 2006 the applicant, who was suspected of the theft and whose whereabouts were unknown, was placed on a police wanted list. 9. At around 10 p.m. on 6 October 2006 the applicant was arrested on the street. He was handcuffed and taken to the police station of the Moskovskiy district police department of Cheboksary (Московский РОВД г. Чебоксары – “the district police”). According to Ms P. and two other female witnesses, the applicant had no injuries before his arrest. 10. The applicant was escorted to the police station at around 11 p.m. He was taken in handcuffs to room no. 217 on the first floor (“second floor” in Russian) and interviewed by operative police officers Ch. and F. about the theft and murder. He gave a partial confession, stating that he had stolen less money from the victim, but denied murder. 11. The parties provided different accounts of the events at the police station. 12. According to the applicant, police officers Ch. and F., who were drunk at the time, demanded that he confess to the theft and murder. They allegedly beat him up, delivering blows to his head, ears, body and legs, and threatened him with rape. At about 3 a.m. they shackled a 40 kg weight to his hands, which he was made to hold while they continued to physically assault him. At about 4 a.m. they made him stand on the windowsill of an open window and threatened to throw him out and make it look as if he had attempted to flee or commit suicide if he did not confess to the murder. After refusing to do so, one of the police officers allegedly pushed him out of the window. 13. According to the Government, in the course of the police interview the applicant, who was drunk when he was taken to the police station, suddenly climbed on a table and jumped out of the window. This course of events was reported by police officers Ch. and F. to their superior on 7 October 2006. They stated that they had taken the applicant for an interview in room no. 217 in handcuffs as he had been drunk, had had a strong smell of alcohol coming from his mouth, had behaved aggressively and inadequately and had used obscene and threatening language towards them. 14. Shortly before 6 a.m. on 7 October 2006 the applicant was given first aid by the ambulance service, which diagnosed him with a closed head injury, concussion and bruises of the soft tissue on the face and on both feet. According to the paramedic and his assistant, they found the applicant lying on the tarmac conscious; he was handcuffed without any weight shackled to him. 15. At 6.15 a.m. the applicant was taken to the Cheboksary Town Emergency Hospital handcuffed on a stretcher, accompanied by police officers Ch. and F. After surgery his right foot was in plaster and his left foot had a weight fixed to it. The applicant was shackled to the bed by one of his hands and guarded by a police officer. 16. From 11.20 to 11.55 a.m. on 7 October 2006 an investigator from the district police questioned the applicant in hospital as a suspect in the theft case, in the presence of a lawyer. He reiterated his confession (see paragraph 10 above). From 7 to 8.30 p.m. that evening an investigator from the Moskovskiy district prosecutor’s office questioned him as a witness in the murder case. 17. According to Ms P. and the applicant’s mother, who visited the applicant in the hospital, the applicant’s eyes were both bruised (which is also evident on photographs of the applicant in hospital), his left ear was swollen, his teeth were loose and he could hardly talk. According to his mother, his left ear was unresponsive and he could not hear, his head and chin were badly bruised, and he had bruises and cuts on his wrists. The applicant told his mother that he had been beaten up and threatened with rape by two police officers, who had shackled a 40 kg weight to him and threatened to throw him out of a window if he did not confess to the crimes. He could not remember what had happened next. 18. At 1.10 p.m. on 10 October 2006 an investigator from the district police drew up a record of the applicant’s arrest at 1 p.m. that day as a suspect in the theft case. On 11 October 2006 the Moskovskiy District Court of Cheboksary (“the District Court”) dismissed the investigator’s request to have the applicant remanded in custody on the grounds that he had been hospitalised and could not participate in the hearing himself. 19. At 2.15 p.m. on 13 October 2006 an investigator from the Moskovskiy district prosecutor’s office drew up a record of the applicant’s arrest at 2.10 p.m. that day on suspicion of the murder. On the same day the District Court extended his arrest until 16 October 2006. 20. On 16 October 2006 the criminal cases concerning the theft and murder were joined and the applicant was charged with both crimes. The District Court remanded him in custody. 21. On the same day the applicant, who had been undergoing continuous inpatient treatment in hospital since 7 October 2016, was transferred to the Cheboksary pretrial detention facility. 22. By an order of 21 October 2006 the Ministry of Internal Affairs of Chuvashiya held police officers Ch. and F. liable in disciplinary proceedings for failing to properly guard the applicant and leaving him without permanent surveillance on 7 October 2006. They were issued with a severe warning. The order stated that in the course of the applicant’s interview the police officers, who had failed to carry out their duties in accordance with the service regulations and to take into account the applicant’s personality, had opened a window thereby creating conditions for the applicant to jump out of it. 23. On 22 November 2006 the applicant confessed to the murder of G. in the course of his questioning as an accused, in the presence of his lawyer. 24. On 8 February 2007 the District Court convicted him of theft, murder and possession of a firearm, and sentenced him to fourteen years’ imprisonment. The period of his arrest and remand in custody from 10 to 12 October 2006 and from 13 October 2006 onwards was counted towards his sentence. The judgment entered into force on 5 April 2007. 25. The following injuries were recorded during the applicant’s initial examination at the Cheboksary Town Emergency Hospital on 7 October 2006: a soft tissue injury to the head, scratches on the face and knees, swelling and bruises on the left hip, a fractured left foot and a dislocated right foot. He was diagnosed with a closed head injury, concussion, bruises and scratches on the head soft tissue and left hip and knee joints, and fractures to both feet. 26. On 8 October 2006, during his inpatient treatment in hospital, the applicant, who had complained that one of his teeth was loose and painful, was examined by a dentist and diagnosed with a “contusion of tooth 41” (lower tooth on the right side). On 11 October 2006 an otolaryngologist examined him in connection with the impaired hearing in his left ear and diagnosed him with otitis. 27. From 22 October to 12 November 2006 the applicant received inpatient treatment in the medical facility of Chuvashiya correctional colony no. 4 (IK-4). 28. It appears from a report by a panel of forensic psychiatrists dated 24 November 2006 that the applicant suffered from a personality disorder which did not require medical treatment or exclude his criminal responsibility. The experts did not assess the applicant’s fall from the window of the police station. 29. On 11 December 2006 an investigator of the Moskovskiy district prosecutor’s office ordered a forensic medical examination of the applicant. The investigator stated that at about 5 a.m. on 7 October 2006 the applicant had fallen from office no. 217 on the first floor of the police station and received injuries to both feet. The investigator asked whether on 7 October 2006 the applicant had had any injuries other than those to both of his feet, and if so, how and when they had been received, whether they could have been received as a result of a fall onto tarmac from the first floor, where they were located and how serious they had been. 30. Following an examination of the applicant’s hospital records, a forensic medical expert concluded on 14 December 2006 that the information concerning the applicant’s initial examination in hospital on 7 October 2006 was undetailed. Information on the exact location, number and morphological characteristics of the injuries was missing, and was insufficient to determine the time and order they had been inflicted to distinguish them and determine which could have been as a result of the applicant being punched and kicked and which could have been as a result of his fall from the first floor. It was stated in the expert’s report that the applicant had not attended the examination, after asking in writing to carry it out in his absence. 31. On 11 October 2006 the applicant’s mother lodged a complaint with the Chuvashiya prosecutor’s office concerning her son’s alleged illtreatment and unlawful deprivation of liberty from 6 to 10 October 2006. 32. On 8 November 2006 the applicant lodged a complaint with the Moskovskiy district prosecutor’s office concerning his alleged illtreatment by the police officers, requesting that criminal proceedings be opened against them. 33. The Moskovskiy district prosecutor’s office and subsequently the Cheboksary inter-district investigation department of the investigative committee at the Chuvashiya prosecutor’s office refused to open a criminal case into the applicant’s alleged ill-treatment and unlawful deprivation of liberty twenty-four times, pursuant to Article 24 § 1 (2) of the Code of Criminal Procedure (“CCrP”), because none of the elements of the offences provided for in Articles 127, 285, 286, 299 and 301 of the Criminal Code (unlawful deprivation of liberty, abuse of powers, criminal prosecution of persons known to be innocent and unlawful arrest and detention respectively) were present in respect of the actions of the police officers. They concluded that the applicant’s allegations could not be confirmed by a pre-investigation inquiry. 34. The pre-investigation inquiry was resumed twenty-three times as the decisions refusing to open a criminal investigation were set aside by higher authorities within the prosecutor’s office and subsequently the investigative committee as unsubstantiated, unlawful or based on an incomplete inquiry. (i) A refusal on 21 October 2006 was overruled on 5 December 2006 on the grounds, inter alia, that nothing had been done to establish whether there had been a 40 kg weight in office no. 217. Moreover, police officers Ch. and F. had carried out non-investigative actions involving the applicant, a suspect in the criminal case, from 11 p.m. to 5.42 a.m. on the night of 6 October 2006, and no assessment of the lawfulness of those actions had been carried out. (ii) A refusal on 12 December 2006 was overruled on 13 December 2006. It was noted that office no. 217 had been inspected and no weights had been found. (iii) Twenty further decisions refusing to open a criminal case taken between 18 December 2006 and 9 October 2008 were overruled. In particular, a refusal on 22 May 2008 was overruled on 5 June 2008 on the grounds that instructions by the deputy head of the investigative committee of Chuvashiya given on 22 November 2007 had still not been fulfilled. A refusal on 16 June 2008 was overruled on 16 June 2008 on the grounds that deficiencies identified by the deputy head of the prosecutor’s office of Chuvashiya on 5 December 2006, the Moskovskiy District Court of Cheboksary on 6 March 2007 and the Supreme Court of Chuvashiya on 12 April 2007 had still not been corrected. (iv) A refusal on 27 October 2008 was overruled on 28 October 2008 on the grounds that the investigative committee of Chuvashiya acknowledged that investigator S. had been found liable in disciplinary proceedings for stalling the inquiry and issuing unlawful and unsubstantiated decisions based on an incomplete inquiry. (v) A refusal on 2 December 2008 was upheld by the courts as a result of a review under Article 125 of the CCrP (see paragraph 40 below). 35. In the most recent refusal issued on 2 December 2008 investigator A. from the Cheboksary investigative committee found that the applicant, who had been wanted in the theft case, had been arrested and taken to the police station and remained there on suspicion of committing it. His being held in room no. 217 for five hours had been necessary for carrying out operationalsearch measures. Police officers Ch. and F. had handcuffed him lawfully in order to guard him and prevent him from escaping or harming himself or others. His hospitalisation had made it impossible for him to be arrested as a suspect on 7 October 2006. He had been handcuffed in hospital to prevent him from attempting to escape again. 36. The investigator also found that the applicant had jumped out of the window himself in order to flee, without any coercion by the police officers. His allegations that he had been subjected to physical violence had not been confirmed. The investigator stated that injuries other than those to both feet had been found on the applicant at the time of his admission, as set out in the forensic medical expert’s report of 14 December 2006. However, the lack of any detailed description of those injuries in the applicant’s medical records had made it impossible to establish when and how they had been received, in particular whether they had been received as a result of him falling from the first floor or being beaten up. 37. The investigator’s decision of 2 December 2008 referred, inter alia, to statements by police officers Ch. and F. They said that after the applicant’s arrest on 6 October 2006 they had interviewed him in room no. 217 about the theft and the murder of G. of which he had been suspected. The applicant had given a partial confession to the theft but had denied murder. He had been convicted of a criminal offence in the past and had tried to escape from a police station by jumping out of a toilet window. The incident had prompted the police to install iron bars on it. In September 2006, after the murder of G., the applicant had been hospitalised for a drug overdose, but had not been arrested because after the hospital had alerted the police he had managed to escape. During the interview on 6 October 2008 the applicant, who had been drunk and had smelled of alcohol, had behaved provokingly and insulted them with obscene words. They had therefore handcuffed him (placing his hands in front) to avoid any attempts to escape or commit suicide. At about 5 a.m., as F. had been leaving the room, the applicant had jumped on a table adjacent to an open window and jumped out. Ch. claimed that he had been putting documents into a safe at the time, while F. said that Ch. had been sitting at the table and the applicant had been sitting on a chair near the table immediately before jumping out of the window. Access to the window had been blocked by the table. It had been possible to reach and open it while sitting at the table. They had taken the applicant to hospital and guarded him there to prevent him attempting to flee again. 38. The decision of 2 December 2008 also referred to the applicant’s statements that immediately before his arrest he had been drinking, and to statements by the investigator from the district police and a police officer who had guarded the applicant at the hospital on 9 October 2006 that the applicant had allegedly stated off the record that he had jumped out of the window himself trying to flee, without any influence by the police officers. It also relied on statements by duty police officer T. that in the early morning of 7 October 2006 he had seen on a monitor (no video recordings had been made) that somebody had fallen out of the window of the police station. He had been the first to go near the applicant lying on his back with his hands handcuffed to his front. Nothing had been attached to his hands. In his earlier statements set out in the refusal to open a criminal case of 21 October 2006, T. explained that at around 5 to 6 a.m. on 7 October 2006 he had seen on a monitor that somebody was lying near the entrance of the police station. Police officers and ambulance staff approached him. T. had not gone near him himself and had neither seen him nor whether there had been any objects near him. 39. Refusals of 17 February 2007 and 25 April 2007, as well as the refusal of 2 December 2008, were reviewed by the domestic courts in accordance with Article 125 of the CCrP. The applicant’s complaints concerning the two 2007 refusals were allowed. In decisions of 6 March and 13 September 2007 the District Court found that they were unlawful and lacked reasoning. The decision of 6 March was upheld on appeal on 12 April 2007 by the Supreme Court of Chuvashiya, which noted that it was necessary to assess the lawfulness of the handcuffing and guarding of the applicant in hospital before his detention in the criminal proceedings. The decision of 13 September 2007 also found the Moskovskiy district prosecutor’s failure to enforce the District Court’s previous decision of 6 March 2007 unlawful. 40. On 3 November 2009 the District Court dismissed the applicant’s appeal against the most recent refusal to open a criminal case, finding that the investigating authorities had carried out all the measures necessary for establishing the relevant facts fully, objectively and thoroughly, and had taken a reasoned decision on the basis of a full and comprehensive inquiry in accordance with the law. On 10 December 2009 the Supreme Court of Chuvashiya upheld that decision on appeal, noting that in disagreeing with the District Court’s findings, the applicant’s representative had misinterpreted the relevant domestic law.