CASE OF DEVYATKIN 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)
Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra
5. The applicant was born in 1986 and lives in Krasnodar. 6. On 4 November 2003 the applicant, who was 16 years old at the time, and his brother were stopped by Krasnogvardeyskiy district police officers Ch. and Kh. at a petrol station in the village of Bolshesidorovskoye in the Adygeya Republic. The applicant submitted that the events had taken place in the context of tense relations between his family and those police officers. 7. He described the events as follows. He and his brother were pushing their broken motorcycle to take it to a friend for repairs. They were verbally insulted by Ch. and Kh. Ch. then sat on the motorcycle and asked them to push it. Following their refusal, the brothers were subjected to physical violence. Kh. seized the applicant by his neck, knocked him down and started strangling him. He hit the applicant’s head against the ground several times, dragged the applicant to a police car without releasing his grasp around his neck, hit his head against the car, punched him in the face and pushed him into the car. The applicant’s and his brother’s requests that their parents be informed or that they be taken home because the applicant felt unwell were disregarded by the police officers. The officers drove to the garage of a local collective farm and then to the Krasnogvardeyskiy district administration, where the applicant’s father found the applicant and his brother and took them home. 8. According to an administrative-offence record drawn up by Officer Kh., at 2 p.m. on 4 November 2003 the applicant’s brother was apprehended for driving a motorcycle without a driving licence. The applicant’s brother noted his disagreement, stating in the record that he had not been driving the motorcycle but had been pushing it. 9. According to an administrative-offence record drawn up by Officer Ch., at 3 p.m. on 4 November 2003 the applicant used obscene language in a public place, namely the petrol station in Bolshesidorovskoye. Therefore, the applicant’s father committed an administrative offence by failing to properly bring up the applicant. Relying on the police officer’s record, the Committee on Minors at the Krasnogvardeyskiy district administration subsequently found the applicant’s father guilty of that administrative offence. The Krasnogvardeyskiy District Court, however, granted the applicant’s father’s appeal against that decision, finding that the decision, the administrative-offence record and other material lacked any evidence of the applicant’s father’s failure to properly raise the applicant, and that, on the contrary, all his children had been well cared for, had studied hard at school, and the family was well thought of. The applicant was heard by the court and denied having used obscene language. The court quashed the decision and terminated the administrative proceedings against the applicant’s father (judgment of 5 January 2004). 10. At 5.45 p.m. on 4 November 2003 the applicant was examined by a surgeon at the Krasnogvardeyskiy District Hospital, who recorded three abrasions on his neck which were 3 to 10 cm long, and a contusion to his right elbow. 11. On the same day the applicant’s mother complained to the Krasnogvardeyskiy district prosecutor’s office that the applicant had been subjected to ill-treatment by the police officers. 12. On 5 November 2003 a forensic medical expert from the Adygeya Republic Forensic Medical Bureau examined the applicant at the request of an investigator of the prosecutor’s office. The expert recorded abrasions on the applicant’s neck which were 7 and 12 cm long, a bruise on his right elbow measuring 5 by 4 cm, and a bruise on his lip. The expert concluded that the injuries could have been inflicted on the previous day, by fingernails as regards the abrasions on the neck, and by a hard blunt object as regards the bruises. 13. On 6 November 2003 the applicant was examined by doctors at the Krasnogvardeyskiy District Polyclinic. He complained of a headache, dizziness, pain in his throat and pain when swallowing, pain in his neck area, lips, left eyebrow and right elbow. The doctors recorded oedema of both lips with bruises, oedema in the area of the left eyebrow and right elbow, and oedema, abrasions and bruises in the area of the neck. They diagnosed him with multiple contusions of the face, neck, larynx and laryngeal cartilages. Following an X-ray examination he was further diagnosed with a fracture of both branches of the hyoid bone. 14. In an additional opinion of 2 December 2003 the forensic medical expert stated that the fracture of the branches of the hyoid bone, the oedema and the abrasions on the neck could have been caused on 4 November 2003 by pressure from fingers, and had resulted in harm to the applicant’s health lasting up to twenty-one days, that is, minor harm to his health. 15. Investigators of the Krasnogvardeyskiy district prosecutor’s office refused to institute criminal proceedings against the police officers for lack of the elements of a crime in their actions. The investigators’ refusals (dated 13 November 2003, 21 November 2003, 28 December 2003, 7 February 2004, 27 April 2004, 6 June 2005, and 3 November 2005) were annulled by their superiors at the prosecutor’s office, because the pre-investigation inquiry, on which the refusals were based, was considered incomplete. 16. In the refusal of 7 February 2004 O., an investigator, found that the applicant’s injuries had been the result of the use of physical force by Officers Ch. and Kh. in order to apprehend the applicant, who had “disobeyed their commands and attempted to escape”. The investigator held that no criminal proceedings should be brought against the police officers for lack of the elements of a crime in their actions under Article 115 of the Criminal Code (minor harm to health), intent – which was lacking in their actions – being one of those elements. Nor did the investigator consider that there was sufficient information indicating the elements of a crime in the police officers’ actions under Article 286 § 1 of the Criminal Code (abuse of authority). 17. In a decision of 27 February 2004, setting aside the refusal of 7 February 2004, a senior prosecutor from the Adygeya Republic prosecutor’s office held that, in the course of an additional inquiry, the investigator should establish exactly what each of the police officers had done when restraining the applicant and placing him in their car, in particular if the injury had been inflicted by seizing the applicant by his neck. The prosecutor also held that it was necessary to give a legal assessment of the question whether there had been any need to apprehend the applicant, who was minor, on account of his swearing. The prosecutor noted that the relevant administrative proceedings had been brought against the applicant’s father, and no statements concerning those events had been taken from the applicant. 18. In the most recent refusal of 29 November 2005 the defects identified by the prosecutor were not rectified. O., the investigator, maintained his findings made in the decision of 7 February 2004, stating that the applicant’s allegations had not been confirmed by the results of the preinvestigation inquiry. 19. The investigator relied on the police officers’ explanations that at 2 p.m. on 4 November 2003 the applicant’s brother had disobeyed their command to stop a motorcycle without a registration plate which he had been driving. The applicant had been sitting on the passenger’s seat. After the police officers had finally managed to stop the motorcycle at the petrol station, the applicant’s brother had refused to produce his driving licence. The police officers had been drawing up an administrative-offence record when the applicant had started walking away, swearing at them. They had “restrained him in order to prevent his escape”. 20. The investigator referred to explanations by Sh. that he had seen the police stopping the motorcycle at the petrol station, that he had been invited to act as an attesting witness and sign a record of the motorcycle’s seizure which the police had drawn up on the spot, and that the applicant’s brother had refused to sign the record and receive a copy of it. 21. The investigator’s decision also referred to statements by other third parties, in particular B., who worked at the petrol station and stated that he had seen the applicant falling onto the tarmac himself, resisting the police officers taking him to their car and trying to escape. B. stated that the police officers had not beaten up or strangled the applicant, but had “restrained him”. The applicant’s mother’s complaint that B. had given false statements was dismissed by an investigator of the Krasnogvardeyskiy district prosecutor’s office on the grounds that false explanations given in the framework of a pre-investigation inquiry, as opposed to false statements given in the course of a criminal investigation, were not punishable as a criminal offence (decision of 10 January 2004). 22. On 23 September 2005 the applicant’s mother lodged an application (жалоба) with the Krasnogvardeyskiy District Court (“the District Court”). She complained that on 27 April 2004 the Krasnogvardeyskiy district prosecutor’s office had refused to institute criminal proceedings against Officers Ch. and Kh. Its decision had been unfounded and on 3 May 2005 it had been set aside by the Prosecutor General’s Office. Since then she had not been informed of any new decision. She argued that the police officers’ actions, as a result of which the applicant had sustained serious bodily injuries, had been unlawful, and that criminal proceedings should be instituted against them. 23. On 26 September 2005 the District Court decided that the application fell to be examined under the rules of civil procedure, and gave the applicant’s mother a time-limit for complying with those rules, in particular in relation to paying a court fee. The applicant’s mother requested that her application be examined under the rules of criminal procedure, notably Article 125 of the Code of Criminal Procedure (“the CCrP”). On 7 December 2005 the District Court discontinued the civil proceedings and decided to examine the application under Article 125 of the CCrP. 24. In its decision of 16 December 2005 the District Court examined the investigator’s decision of 29 November 2005 and endorsed the investigator’s conclusions that the police officers had acted lawfully. It also noted that the applicant, no longer a minor, should have applied to court himself. For those reasons, it rejected the application. 25. The applicant’s mother appealed against the decision, seeking, inter alia, to declare the refusal to institute criminal proceedings of 29 November 2005 unlawful and unfounded. On 31 January 2006 the Adygeya Republic Supreme Court quashed the decision, noting that the District Court should not have examined the application, as the applicant’s mother had lacked authority to act on the applicant’s behalf, and should not have examined the lawfulness of the police officers’ actions in its review under Article 125 of the CCrP (which concerned the lawfulness of investigators’ decisions). Since the District Court had not examined whether the refusal to institute criminal proceedings of 29 November 2005 was lawful and well-founded, the Adygeya Republic Supreme Court could not deal with that issue on appeal. 26. On 8 February 2006 the District Court held that the application did not fall to be examined under Article 125 of the CCrP and discontinued the proceedings. On 21 March 2006 the Adygeya Republic Supreme Court upheld that decision upon an appeal by the applicant’s mother, reiterating that she had lacked authority to act on the applicant’s behalf and that the lawfulness of the police officers’ actions could not be reviewed under Article 125 of the CCrP. It further stated that in her application she had not formulated a complaint that the refusal to institute criminal proceedings was unlawful or unfounded.