CASE OF RAKHIMBERDIYEV v. RUSSIA
Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)
Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
5. The applicant was born in 1936. 6. In the summer of 2005, the applicant was hired as a guard to accompany a shipment of some sixty tonnes of onions from Tajikistan to Siberia. After a nine-day journey by rail, the cargo arrived at Rubtsovsk station in the Altay Region. Using sniffer dogs, Russian customs officials found concealed rubber containers inside onion skins that held a total of more than seventy-three kilograms of heroin. 7. At about 9 p.m. on 1 August 2005 the applicant was taken to the organised crime department at the Rubtsovsk police station and placed in a room (no. 26) under police guard. A record of his arrest was not drawn up. The applicant spent the night on a mattress in the corridor. 8. At 8.50 a.m. on 2 August 2005 a criminal case was instituted in connection with the uncovered shipment of drugs. The investigator, L., accepted the case at about 11 a.m. and interviewed the applicant. He was searched, and a small package of heroin was found concealed in his bag. 9. Later that day a record of arrest was drawn up, and the applicant was formally remanded in custody on a charge of drug smuggling. According to the record, the applicant was arrested at 8.20 p.m. on 2 August 2005 at the Rubtsovsk police station. 10. During the applicant’s trial, his counsel repeatedly raised the issue of his unrecorded detention from 1 to 2 August 2005 and put questions to the police officers, who were heard as witnesses, about the events following the applicant’s apprehension. According to the hearing records, they replied as follows: 11. The chief of the drug control department, M., stated: “Rakhimberdiyev was taken to the department. While [there], he remained under guard. He stayed in the department for five hours. Pending [his placement in] the IVS (temporary detention cell), he was not allowed to go outside. During the twenty-four hour period of detention, Rakhimberdiyev did not go to the toilet, he did not ask to.” 12. The deputy chief of the organised crime department, Ch., stated: “Rakhimberdiyev could not get up and go out because we had to take a decision on the basis of the documents. I cannot say what the grounds for keeping him in the corridor were.” 13. An operative of the drug control department, Shl., testified: “Rakhimberdiyev could not go out because the door was locked, he was under guard.” 14. An officer of the special-purpose department of the criminal police, B., stated: “Rakhimberdiyev could not leave because I said so – the case was in progress, the expert was working. I do not know what the grounds for his detention were ... I stood guard over him so as to prevent him from going out ...” 15. On 9 March 2006 the Rubtsovsk Town Court found the applicant guilty of drug smuggling with intent to supply and sentenced him to ten years’ imprisonment in a high-security facility. 16. On 18 May 2006 the Altay Regional Court acquitted the applicant on the charge of smuggling, but upheld his conviction in the part concerning the possession of twenty-seven grams of heroin. The sentence was commuted to three years’ imprisonment. 17. In the meantime, counsel for the applicant complained to the Rubtsovsk town prosecutor about the applicant’s unrecorded detention from 1 to 2 August 2005. The prosecutor forwarded the complaint to the chief of the organised crime department for verification. 18. On 13 April 2006 the chief of the organised crime department approved the conclusions of an internal inquiry a senior operative had carried out into the allegation of unlawful detention. The inquirer took a statement from the chief of the drug control department, M., who claimed that the applicant had been released on the night of 1 August 2005 but had asked to stay at the police station overnight because he had had nowhere else to go. Further statements from officers Ch., Shl., B., Me., and Shn. corroborated M.’s claims. Without questioning the applicant, the inquirer concluded that the allegation of unlawful detention was unsubstantiated. 19. By a decision of 20 April 2006, an investigator from the Rubtsovsk town prosecutor’s office refused to open a criminal investigation into the applicant’s complaint of unlawful detention. He referred to the statements of the police officers, who had claimed unanimously that the applicant had refused to leave because he had had nowhere else to go, and that they had allowed him to stay overnight in the corridor, where he had slept on a mattress. The investigator did not interview the applicant, but reached the conclusion that his complaint to the prosecutor was to be considered “a way of seeking to avoid liability for the particularly serious crime he had committed”. 20. Counsel for the applicant challenged the decision before a court. 21. On 12 May 2006 the Rubtsovsk Town Court held that the investigator’s decision had not been lawful or justified: “The descriptive part of the decision contradicts the findings of the investigation. Thus, [the investigator] established that on 1 August 2005 Rakhimberdiyev had been detained on suspicion of committing a crime and that his detention was only formalised on 2 August 2005 at 8.20 p.m. The investigator did not assess all the documents in the case file: the expert report dated 1 August 2005; the judgment of 9 March 2006, which established that on 1 August 2005 Rakhimberdiyev had been taken to the organised crime department at the Rubtsovsk police [station] and had remained there under continuous guard until his formal arrest at 8.20 p.m. on 2 August 2005 ... The decision does not refer to the crime scene inspection report, which indicated that the scene had been inspected at 5.45 p.m. on 1 August 2005. All the witnesses testified that Rakhimberdiyev had been taken to the police station immediately after the inspection of the crime scene and had stayed there of his own will, which is contradicted by the statement of the convict. The investigator merely reproduced the testimony of the police officers in his decision, without giving a legal assessment. The actions of the police officers, which were incompatible with Article 92 § 1 of the Code of Criminal Procedure, were not justified.” 22. On 1 July 2006 another investigator from the Rubtsovsk town prosecutor’s office refused to open a criminal investigation, reproducing verbatim the text of the decision of 20 April 2006. On 21 July 2006 the town prosecutor quashed that decision and ordered an additional inquiry. 23. Further to a complaint by counsel, on 24 July 2006 the Town Court held that the town prosecutor had unduly delayed the inquiry into the applicant’s complaint. 24. On 2 August 2006 a senior investigator from the town prosecutor’s office again refused to open a criminal case. He found that it could not be shown to the required standard of proof that the applicant had stayed in the police station against his will. 25. On 10 August and 19 October 2006 respectively, the Rubtsovsk Town Court and Altay Regional Court summarily upheld the investigator’s decision.