CASE OF OVAKIMYAN v. RUSSIA
Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)
Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
5. The applicant was born in 1981 and lived in Yoshkar-Ola before his conviction. 6. On 29 August 2007 A.K., who had left home the previous day intending to sell his car, was reported missing. On the same day his car was found on the outskirts of Yoshkar-Ola. The investigative committee at the YoshkarOla town prosecutor’s office opened criminal proceedings in respect of A.K.’s alleged murder. The criminal investigation department of the Ministry of Interior of the Republic of Mariy El carried out operational and search activities aimed at establishing A.K.’s whereabouts and the circumstances of his disappearance. 7. According to a record drawn up by investigator A., on 7 September 2007 A.K.’s body was found and the place of its location examined. 8. At 8.55 p.m. investigator G. drew up a record of the applicant’s arrest as a suspect in the murder case, indicating that the applicant had been arrested at 8.55 p.m. that day. 9. From 9.15 p.m. to 9.35 p.m. investigator A. examined the applicant as a suspect in the presence of V.K., a lawyer provided by the State at the applicant’s request. The applicant refused to give statements, relying on Article 51 of the Constitution (privilege against selfincrimination). 10. According to operative police officers (оперуполномоченные), D.K., O. and S., they received information concerning the applicant’s involvement in A.K.’s murder. At about 5 or 6 p.m. on 7 September 2007 they came to the applicant’s home and invited him to answer some questions; they took him with his consent to their office at the YoshkarOla Central police station; during his interview the applicant told them that he had murdered A.K. by strangling him in order to steal A.K.’s car and that he could show them where A.K.’s body had been hidden. 11. At about 6 p.m. or 7 p.m. D.K., O. and S. took the applicant to a place on the outskirts of Yoshkar-Ola where he pointed out the location of A.K.’s body. They called investigator A., who arrived with other members of the investigative team, carried out an examination of the place and seized the body. 12. The applicant provided a different version of his arrest and the events which followed. According to him, at 3 p.m., when he and his girlfriend were buying something at a kiosk in the street, three men in plain clothes approached him, pushed him to the tarmac, handcuffed him and put him in an unmarked car without any explanation. A plastic bag was put over his head, making it difficult for him to breathe, and he was taken to a forest, where the three men subjected him to ill-treatment, demanding that he accept their conditions and do as he was told. He was punched (in particular on the forehead), kicked (after he had fallen to the ground), and administered electric shocks through wires attached to the thumbs. He agreed to cooperate and was taken to investigator G at the YoshkarOla Central police station. 13. During the criminal proceedings against him the applicant asserted that he had never shown the whereabouts of A.K.’s body to the investigating authorities; rather, it was his co-accused R.K. who had shown them the body (see paragraph 37 below). 14. At 10.45 p.m. the applicant was placed in a temporary detention facility (“the IVS”) at the Ministry of Interior of Mariy El. An officer on duty recorded the following injuries on him: a swelling and a haematoma on the left side of the forehead; haematomas on the right side of the chest, on the right shoulder and right shoulder blade; and abrasions on the back in the region of the waist. 15. At 2.35 p.m. on 8 September 2007 the applicant was taken from the IVS to investigator G. to take part in two confrontations, which were carried out between 3.30 p.m. and 5.25 p.m. The applicant, who was represented by lawyer V.K., again refused to give statements. 16. According to the IVS’s records, the applicant was brought back to the IVS at 3.20 a.m. 17. In a “statement of surrender and confession” (явка с повинной) drawn up by investigator G. at 7 p.m. in the absence of a lawyer, the applicant confessed to participating in a conspiracy to murder A.K. and to stealing A.K.’s car. The applicant stated that A.K. had been strangled by his partners in crime, R.K. and M.Ts. 18. According to investigator G., that day the applicant remained in his office until he was taken back to the IVS. 19. According to the applicant, investigator G. demanded that he confess to the crimes. The applicant refused, and after 9 p.m., G. telephoned someone and three men took the applicant out of the town by car. They beat him up, strangled him, threatened him with a revolver, tied him up with a car tow rope, threw him into a pit dug by one of them and threatened to bury him alive, demanding that he confess to the murder. After being taken back to the IVS, the applicant signed a statement of surrender and confession, as requested by the investigator. 20. During the criminal proceedings against him the applicant stated that he had never signed the statement of surrender and confession, and that his signature on the record had been forged by the investigator. On 16 July 2008 a criminal complaint lodged by the applicant on 1 February 2008 against the investigator was dismissed after a handwriting expert was unable to determine whether his signature had been forged. 21. At 8.20 a.m. on 9 September 2007 the applicant was taken to investigator G., charged with murder and robbery, and questioned as an accused in the presence of lawyer V.K. According to the record of his questioning, he stated that he had given the statement of surrender and confession the previous day voluntarily, without any pressure from police officers. He reiterated his self-incriminating statements. 22. During the criminal proceedings against him the applicant claimed that he had never signed the record of his questioning as an accused, and that his signature on the record had been forged by an investigator. A handwriting expert, whose opinion was sought by an investigator, concluded that a handwritten note in which the applicant fully acknowledged his guilt of A.K.’s murder had been written by the applicant, but that it was impossible to determine whether he had also signed that record. On 16 July 2008 the applicant’s criminal complaint against the investigator (see paragraph 20 above) was dismissed. 23. On the same day the Yoshkar-Ola Town Court, at a hearing held in the presence of the applicant and his lawyer, V.K., investigator G. and a prosecutor, ordered that the applicant be detained on remand. 24. At 5.30 p.m. he was placed in pretrial detention facility IZ-12/1. Upon his admission he was examined by a medical assistant, who recorded the following injuries on him: an 8-cm-long bruise on the front side of the neck, a bruise 2 cm in diameter on the right side of the chest, and a 3cmlong abrasion at the level of the first lumbar vertebra. 25. On 17 October 2007 the applicant lodged a complaint with the Prosecutor’s Office of the Republic of Mariy El, requesting that investigator G. and the police officers responsible for his ill-treatment (see paragraphs 12 and 19 above) be prosecuted. An inquiry into his allegations was carried out under Article 144 of the Code of Criminal Procedure (“CCrP”) by the investigative committee of the Mariy El prosecutor’s office. 26. The pit into which the applicant had allegedly been thrown on 8 September 2007 with the threat that he would be buried alive was located in a forest at a place pointed out by the applicant. Statements were taken from investigators and police officers. Investigator G. and operative police officers D.K., O. and S. denied having ill-treated the applicant. 27. On 18 December 2007 an investigator ordered a forensic expert medical report concerning the applicant’s injuries, as recorded in pretrial detention facility IZ-12/1 (see paragraph 24 above). In a report dated 19 December 2007 the forensic medical expert concluded that the injuries could have been caused by hard blunt objects. They had not resulted in a health disorder of sufficiently long a duration for it to be categorised as health damage. The information contained in the medical records made available to the expert did not make it possible to establish the time at which the injuries had been inflicted. 28. Investigators refused five times (on 2 and 19 November and 13 December 2007, and 7 April and 29 June 2008) to open criminal proceedings in respect of the applicant’s allegations for lack of the event of a crime (отсутствие события преступления). Each time their decision was annulled as unlawful and unfounded by their superior at the Mariy El prosecutor’s office and an additional inquiry ordered. The annulment of the investigators’ refusals of 13 December 2007, 7 April 2008 and 29 June 2008 followed the YoshkarOla Town Court’s findings of 3 March, 29 May and 31 July 2008 respectively that those refusals had been unlawful and lacking reasoning. 29. The Town Court’s decision of 31 July 2008 was initially set aside after an appeal by the prosecutor before the Mariy El Supreme Court on 22 September 2008 for the reasons that on 15 August 2008 the criminal case against the applicant had been transferred for trial to the Mariy El Supreme Court, that those proceedings were pending, and that it was open for the applicant to raise in the course of his trial complaints concerning his illtreatment. In supervisory review proceedings on 22 October 2010 the Presidium of the Mariy El Supreme Court quashed the decision of 22 September 2008. It found that the decision had been based on an erroneous interpretation of criminal procedural law and had failed to take into account Article 46 of the Russian Constitution, which guaranteed access to court in respect of complaints against decisions of State authorities. It noted that the Constitutional Court had explained that it was possible under Article 125 of the CCrP to appeal against decisions made by (as well as actions undertaken by or inaction on the part of) investigating authorities at the pre-trial stage of proceedings, regardless of whether issues addressed in those decisions were connected to circumstances concerning other pending or completed criminal proceedings. The Presidium referred to the Constitutional Court’s decisions no. 369-O of 18 November 2004, 156O of 25 March 2004, 500-O of 20 December 2005, 576-O-P of 19 May 2009, 1107-O-O of 13 October 2009 and 79-O of 16 March 2006. The Mariy El Supreme Court stressed that in the course of a trial the task of a court was to examine the admissibility of evidence and other questions relevant to the merits of the case; such questions were factually and legally different from those examined in a review under Article 125 of the CCrP. On 22 November 2010, following supervisory review and appeal proceedings, the Town Court’s decision of 31 July 2008 entered into force. 30. The most recent decision of the investigative committee of the Mariy El prosecutor’s office was taken on 9 March 2011. An investigator again refused to institute criminal proceedings against investigator G. and police officers D.K., O., S. and Z. for lack of the event of a crime under Article 24 § 1 (1) of the CCrP. Relying on the statements of the applicant’s coaccused, R.K., the investigator concluded that the injuries found on the applicant upon his admission to the IVS could have been inflicted by A.K. on 28 August 2007. R.K. stated that shortly before A.K.’s murder the applicant and A.K. had had a fight in a car and that he had seen them delivering several blows to each other. R.K. was unable to say where A.K. had hit the applicant. As regards the bruise on the applicant’s neck recorded upon his admission to the SIZO on 9 September 2007, the investigator noted that its cause had not been established and concluded that it could have been self-inflicted. 31. On 7 October 2011 the Yoshkar-Ola Town Court dismissed an appeal by the applicant against the investigator’s decision of 9 March 2011. It found that the investigator had carried out a comprehensive inquiry, having exhausted all possibilities for collecting evidence, and that his decision had been lawful and well-reasoned. 32. On 5 December 2011 the Mariy El Supreme Court dismissed an appeal by the applicant against the Town Court’s decision. It stated that in a review of an investigator’s decision not to initiate criminal proceedings under Article 125 of the CCrP a court’s task was to check whether the procedure for the examination of a complaint regarding the commission of a crime had been observed. The Mariy El Supreme Court noted that the Town Court had examined the material gathered during the course of the inquiry and established that the applicant’s arguments had been examined by the investigator. It fully endorsed the Town Court’s findings that the inquiry had been thorough and the investigator’s decision of 9 March 2011 lawful and reasoned. 33. On 12 December 2011 first deputy prosecutor of the Republic of Mariy El annulled the investigator’s decision of 9 March 2011 as unlawful, lacking reasoning and proper assessment of evidence, and based on an inquiry which had not been thorough and had not exhausted all possibilities for collecting evidence. In particular, the applicant’s allegations of illtreatment had not been refuted; the circumstances in which he had received the injuries had not been established; the existence of the pit at the place of the applicant’s alleged ill-treatment had not been assessed; the allegations of electric shocks had not been verified; and the forensic medical expert had not been given all the necessary information (including the applicant’s version of the cause of the injuries). Consequently, the forensic expert (see paragraph 27 above) had not made a full assessment, in particular of the injuries recorded upon the applicant’s admission to the IVS. The prosecutor further noted that (i) the IVS records, which recorded at what times in the period from 7 until 9 September 2007 the applicant had been taken from the detention facility for the purpose of carrying out investigative actions and when he had been brought back, had not been assessed, and (ii) the documents indicating the grounds for the applicant’s absence from the detention facility were missing. It was necessary, inter alia, to establish the applicant’s location and a detailed chronology of the events in which had had participated in the period from 7 until 9 September 2007, taking into account the fact that he had actually been arrested at 3 p.m. on 7 September 2007, as established at the applicant’s trial. The prosecutor ordered that the investigative committee of the Mariy El prosecutor’s office carry out an additional inquiry. 34. The applicant’s case was heard by the Mariy El Supreme Court. On 20 August 2008 it ordered that a preliminary hearing be held in order to examine the applicant’s request for the exclusion of some evidence as inadmissible. On 28 August 2008 the applicant withdrew his request. On 1 September 2008 the Mariy El Supreme Court – after hearing the applicant and his legal counsel, who confirmed the withdrawal of the request – ruled that the request should not therefore be examined. According to the trial records of 23 October 2008, in the course of the trial the applicant lodged a new request for the exclusion of some evidence as inadmissible, which he again withdrew. 35. As regards the applicant’s allegations of ill-treatment, the firstinstance court (“the trial court”) examined witnesses and other evidence collected in the course of the inquiry carried out by the investigative committee of the Mariy El prosecutor’s office. In particular, it heard investigators A. and G. and police officers O. and S., who denied having ill-treated the applicant. A., O. and S. stated that the applicant had pointed out the location of A.K.’s body. The trial court found it impossible to establish the circumstances in which the applicant had received the injuries. It noted that it could examine allegations of unlawful investigative methods as long as the admissibility of evidence was at issue, and that this was not the case because no evidence whose admissibility would have been prejudiced by the discovery of the applicant’s injuries had been examined by it. It stressed that the circumstances in which the applicant’s injuries had been inflicted could be established by the relevant law enforcement authorities by means of an inquiry. 36. In respect of an attack on A.K. in his car shortly before his murder, R.K. stated that he had seen the applicant punching A.K. to the head and body and A.K. trying to defend himself. In respect of the same episode another of the applicant’s co-accused, M.Ts., who had also been in the car, stated that he had seen the applicant beating A.K. and A.K. covering himself from the blows. 37. The applicant pleaded not guilty. When asked whether he had been taken to the place where A.K.’s body had been found, he answered that he had been taken by car to an unknown place, where he had seen R.K. talking to police officers. R.K. had been covered in mud. The applicant had been told by a driver that R.K. had dug out A.K.’s body with his bare hands. The applicant further stated that he had not written the statement of surrender and confession. 38. In its judgment of 5 November 2008 the Mariy El Supreme Court established that the applicant had murdered A.K. by strangling and had stolen his car. It found the applicant guilty of murder and robbery and sentenced him to sixteen years’ imprisonment. The finding of the applicant’s guilt was based, inter alia, on statements made by R.K. and M.Ts. (his accomplices in the robbery and eyewitnesses to the murder). In deciding on the punishment for the robbery the Mariy El Supreme Court held that the applicant had played an active role in solving the crime by pointing out the location of A.K.’s body, and that this constituted a mitigating circumstance. The applicant’s coaccused, R.K. and Ts., were convicted of aggravated robbery and sentenced to three and a half and three years’ imprisonment respectively; in M.Ts.’s case the sentence was suspended. 39. The applicant lodged an appeal with the Russian Supreme Court against the judgment, complaining, inter alia, that the Mariy El Supreme Court should not have examined as evidence the witness statements made by A., O. and S. He further complained that his sentence in respect of the murder had been unfair because, in contrast with the decision on the punishment for the robbery, his disclosure of the whereabouts of A.K.’s body had not been taken into account as a mitigating circumstance. 40. On 5 February 2009 the Russian Supreme Court dismissed the applicant’s appeal and upheld the judgment of the Mariy El Supreme Court. It stated that in view of the disputed origin of the applicant’s injuries the trial court had rightly not used evidence adduced at the time of the applicant’s alleged ill-treatment. It agreed with the applicant that the record of his arrest had been drawn up more than three hours after his actual arrest at 3 p.m. on 7 September 2007, in breach of Article 92 § 1 of the Code of Criminal Procedure. It further noted that the trial court had rectified that violation by including the time spent by the applicant in pre-trial detention in the sentence to be served.