CASE OF VLADIMIR FEDOROV v. RUSSIA
Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect)
Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
6. The applicant was born in 1976 and lived until his arrest in the town of Prokopyevsk in the Kemerovo Region. He is now serving his sentence in a correctional colony in Kemerovo. 7. On 12 March 2003, at approximately 10 a.m., police officers of the Rudnichniy District Police Department in Prokopyevsk stopped the applicant and his friend, Ms S., in a street and took them to the Rudnichniy District police station. 8. The applicant provided the following description of the subsequent events. He was placed in office no. 17 where five police officers, D., A., I., K. and Ko. severely beat him up. Ms S. was left in a hall, near office no. 17, and heard him screaming. She saw the applicant, covered with injuries and barely walking, two hours later. On 13 March 2003, unable to bear the beatings, the applicant wrote a statement, prompted by the police officers, in which he confessed to having committed a robbery. He was released on the following day under his own recognisance not to leave the town. 9. On 15 March 2003 the applicant attended the Central Trauma Unit where he was examined. The examining doctor recorded the following injuries on the applicant’s body: injuries to the kidneys, injuries and bruises on the upper extremities, buttocks and left shank and an injury to the soft tissue of the head. Treatment was recommended. 10. On 20 March 2003 the applicant lodged a complaint with the Prokopyevsk Town Prosecutor, seeking institution of criminal proceedings against the police officers who had ill-treated him on 12 and 13 March 2003. 11. Five days later the Prokopyevsk Town prosecutor’s office remitted the applicant’s complaint to the Prokopyevsk Town Police Department with a request to conduct an official inquiry into the events of 12 and 13 March 2003. 12. On 7 April 2003 the head of the Prokopyevsk Town Police Department issued a decision, approving the findings of the official police inquiry into the applicant’s complaints. The decision read as follows: “On 25 March 2003 the police department received [the applicant’s] complaint from the town prosecutor’s office; [in that complaint the applicant] indicates that the police officers of the district police station applied psychological and physical pressure to him and his acquaintance, Ms S., in order to extract a confession statement. According to [the applicant], on 12 March 2003, at approximately 10.00 a.m., he and Ms S. were arrested by a police officer, D., and taken to the Rudnichniy District Police Department, where in office no. 17, [officer] D., having handcuffed [the applicant] to the chair back, beat him with a shovel handle. [The applicant] indicated that on a number of occasions, in the police station between 12 and 14 March 2003, the police officers D., A., I., K. and Ko. had taken him from a detention unit to the service garage, where [they] had beaten him up, had buried him naked in the snow, had threatened him and his girlfriend with violence, [and] had applied psychological pressure. Ms S. explained that after [she had been] taken to the police station, she had been near office no. 17 for approximately two hours and had heard [the applicant] screaming. After [the officer] D. had questioned her, she was placed in a detention unit where she remained until 9.00 a.m. on 13 March 2003. Ms S. also asserts that psychological pressure was applied to her. The police officer, D., stated that on the basis of information received pertaining to an armed robbery, on 12 March 2003, at approximately 10.00 a.m., he had arrested [the applicant]. As the latter had attempted to hide on the premises of a psychiatric hospital and a [hospital] staff member had called [the police], [the applicant] was taken to the police station in a police car. On the same day criminal case no. 665913 was opened pursuant to Article 162 § 2 of the Russian Criminal Code in respect of the robbery. [The officer] D. also explained that Ms S. had voluntarily gone to the police station. D. had a talk with her (not an [official interrogation]) as she had close ties to [the applicant] and could have certain information. Ms S. was not detained in the detention unit. A police officer working with arrestees, Mr Se., stated in his explanation note, that Ms S. had been registered by housing maintenance authorities (registration no. 1309) and, on an order from [officer] D., [he] had verified information about her in the address inquiry office. However, she had not been placed in the detention unit. All the police officers, who were named in [the applicant’s] complaint and statements, save for Mr K. who had been on annual leave since 24 March 2003, firmly deny that physical force, threats or psychological pressure were applied to [the applicant]. However, taking into account that on 15 March 2003 [the applicant] applied to the Central Trauma Unit (certificate no. 1983), which recorded injuries, [and having regard to] discrepancies between statements of individuals and police officers, it is necessary to perform certain investigative actions to establish the truth, which is impossible to do within the limits of the official inquiry and is within the competence of the prosecution authorities.” 13. On 15 April 2003 the applicant was re-arrested and placed in a temporary detention ward. 14. Three days later an assistant of the Prokopyevsk Town Prosecutor, having examined the medical certificate of 15 March 2003 and the conclusions of the official police inquiry, dismissed the applicant’s request for institution of criminal proceedings against the police officers because “there was no objective data” confirming the applicant’s allegations. 15. On 5 May 2003 the applicant underwent a chest X-ray examination. As is apparent from a medical certificate issued by a prison doctor on 26 May 2004, the X-ray showed that the applicant had a fracture in the front part of the ninth rib in the consolidation phase. 16. Relying on medical evidence in support of the applicant’s allegations of ill-treatment, the applicant’s father complained to the Prokopyevsk Town Prosecutor about the assistant prosecutor’s decision of 18 April 2003. On 1 October 2003 the Town Prosecutor quashed the decision of 18 April 2003, pointing to the incompleteness of and defects in the assistant prosecutor’s decision, and authorised an additional inquiry. 17. On 13 October 2003 an assistant of the Prokopyevsk Town Prosecutor, once again relying on the police officers’ denials of the use of force, refused to institute criminal proceedings against them. The relevant part of the decision reads as follows: “On 15 March 2003, in the trauma unit, [the applicant] was diagnosed with several injuries; however, in the course of the inquiry it has been impossible to establish the time and mechanism of their appearance without a forensic medical examination. The circumstances of [the applicant’s] beatings as indicated by him were not corroborated by any objective data. The police officers ... interrogated in the course [of the inquiry] strongly object to [the applicant’s] arguments concerning the application of unlawful investigation methods...” 18. On 10 March 2004 the Prokopyevsk Town Prosecutor sent a letter to the applicant’s father informing him that his complaints had been examined and had been dismissed by a decision of 13 October 2003. The Town Prosecutor also informed the applicant’s father that he had no standing in the proceedings pertaining to the alleged beatings of the applicant and that, therefore, he had no right to appeal against the decision of 13 October 2003. 19. On the same day the Prokopyevsk Town Prosecutor sent a letter to the applicant, notifying him of the decision of 13 October 2003. The Prosecutor added that the decision of 13 October 2003 had been lawful and that there were no grounds to annul it. As shown by the postmark, the letter was served on the applicant on 17 March 2004. 20. In the meantime, on 15 September 2003, the Rudnichniy District Court of Prokopyevsk found the applicant guilty of aggravated theft, fraud and robbery and sentenced him to seven years and six months’ imprisonment. The District Court based the conviction on the applicant’s partial confession given in open court, statements by the victims and witnesses, including Ms S., a record of a search in the applicant’s flat showing that the victims’ belongings had been found and seized, records of identification parades and other material evidence. The applicant’s confession which he had given on 13 March 2003 did not serve as the basis of his conviction. The District Court examined the applicant’s allegations of police brutality. It noted that the prosecution authorities had conducted an inquiry into the applicant’s complaints about the beatings and had decided not to institute criminal proceedings because the allegations had not been proven. 21. The applicant and his lawyer appealed, arguing, inter alia, that the District Court had not examined his ill-treatment complaints thoroughly and that it had disregarded the medical evidence supporting the applicant’s version of events. 22. On 18 November 2003 the Kemerovo Regional Court upheld the applicant’s conviction, endorsing the reasons given by the District Court. 23. According to the Government, on 20 October 2006 the case file pertaining to the inquiry into the applicant’s ill-treatment complaints was destroyed due to the archiving time-limit. 24. On 18 January 2007 a deputy prosecutor of the Kemerovo Region instituted criminal proceedings against the police officers who, according to the applicant, had tortured him in March 2003. 25. On 18 May 2007 an investigator of the Prokopyevsk Town Prosecutor’s office closed the criminal proceedings, finding that there was no prima facie case of ill-treatment. The investigator based his decision on statements by the applicant and Ms S., who had confirmed their allegations of police brutality, and statements by a number of police officers, investigators and a judge who had come into contact with the applicant in March 2003. Due to the remoteness of the events in question the interrogated officials could not recall certain details of the applicant’s arrest and his subsequent detention in the police station or even if they had seen or talked to the applicant on 12 and 13 March 2003. The police officers, the alleged perpetrators of the offence, were also interrogated. They fiercely denied that force had been used and also had difficulties recalling either the applicant himself or the details of his presence in the police station. The investigator questioned two persons who had allegedly been detained in the police station together with the applicant in March 2003. Those persons did not remember the applicant and merely stated that during their detention in the police station they had not been ill-treated and had not heard anyone complain about police brutality. The investigator had been unable to examine the medical evidence, including the X-ray records made in May 2003 and records of the medical emergency unit of the Prokopyevsk Town Hospital, as they had been destroyed due to the archiving time-limit. The investigator concluded that the applicant’s ill-treatment allegations were not supported by any evidence, save for statements given by him and his relatives. The investigator noted that those statements had to be treated with caution as they had been made by persons having a direct interest in the case. 26. It appears that, on an unspecified date, the decision of 18 May 2007 was annulled and a new round of criminal proceedings commenced. 27. The applicant lodged a complaint with the Prokopyevsk Town Prosecutor, seeking the transfer of the case file to the Kemerovo Regional Prosecutor’s office for further investigation. He also asked to change the legal classification of the police officers’ actions and to ensure his and his relatives’ safety. 28. On 27 July 2007 a deputy to the Prokopyevsk Town Prosecutor dismissed the applicant’s complaint in full. 29. On 6 August 2007 the applicant received a letter from the Prokopyevsk Town Prosecutor, informing him that the criminal proceedings were stayed as “it was impossible to identify persons who could be charged” with a criminal offence against the applicant. 30. The Code of Criminal Procedure of the Russian Federation (in force since 1 July 2002, “the CCrP”) establishes that a criminal investigation can be initiated by an investigator or a prosecutor on a complaint by an individual or on the investigative authorities’ own initiative, where there are reasons to believe that a crime was committed (Articles 146 and 147). A prosecutor is responsible for overall supervision of the investigation (Article 37). He can order specific investigative actions, transfer the case from one investigator to another or order an additional investigation. If there are no grounds to initiate a criminal investigation, the prosecutor or investigator issues a reasoned decision to that effect which has to be notified to the interested party. The decision is amenable to appeal to a higher-ranking prosecutor or to a court of general jurisdiction within a procedure established by Article 125 of the CCrP (Article 148). Article 125 of the CCrP provides for judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court. 31. Article 1064 § 1 of the Civil Code of the Russian Federation provides that damage caused to the person or property of a citizen must be compensated for in full by the tortfeasor. Pursuant to Article 1069, a State agency or a State official will be liable to a citizen for damage caused by their unlawful actions or failure to act. Such damage is to be compensated for at the expense of the federal or regional treasury. Articles 151 and 1099-1101 of the Civil Code provide for compensation for non-pecuniary damage. Article 1099 states, in particular, that compensation must be awarded for non-pecuniary damage irrespective of any award for pecuniary damage.