CASE OF VOLODARSKIY v. RUSSIA
No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
5. The applicant was born in 1969 and lives in Moscow. 6. During the evening of 14 October 2003 the applicant assaulted Ms G. in an attempt to steal her handbag. After searching the surrounding streets, Ms G. and her acquaintance, Mr Sh., located the applicant at a bus stop nearby. 7. As quoted in the report of the internal security office of the Interior Department of the South-West Administrative District of Moscow of 19 December 2003 (see paragraph 21 below), police officers M. and S., who arrived at the scene after a telephone call from Ms G., stated that when they arrived they saw that the applicant’s head had been bleeding and his jacket was torn. They handcuffed him when he attempted to escape. 8. After taking the applicant to Cheremushinskoye police station, the police officers called an ambulance which took him to a hospital for first aid to be administered. Afterwards he was taken back to the police station and released on the following day after questioning. 9. On 17 October 2003 criminal proceedings were instituted by the investigative department of Cheremushinskoye police station against the applicant in connection with the incident of 14 October 2003. On the same date the investigator drew up a record of the inspection of Ms G.’s handbag describing its appearance and contents which included a cell phone and a certain amount of money. The record also included an estimate of the cost of the objects. Two attesting witnesses, P. and K., put their signatures on the record of inspection and on the decision of the same date to include in the body of evidence the above-mentioned objects. 10. The records of the questioning of Ms G. and Mr Sh. of 3 November 2003 contain the following identical statements: “[The applicant] tried to run away but Sh. stopped him and grabbed his arms. [The applicant] made several other attempts at absconding before the arrival of the police, which is why Sh. had to physically restrain him, and that might have caused some bodily injury ... Upon their arrival the police handcuffed [the applicant].” 11. When being questioned on 3 December 2003 as a suspect, the applicant stated the following: “The woman pushed me in the chest, and the man hit me on the head with the handle of a handgun, causing bleeding ... The woman walked to a nearby shopping centre and returned with two security guards, after which the three men started beating me. Then the woman used her mobile phone to call the police ... I was then taken to Cheremushkinskoye police station where I was handcuffed to the iron bar of a cell. In the questioning office ... I was told to sit down on the floor. On several occasions I tried to get up and the police officer took a truncheon and hit me across the legs. The other police officers started mocking me and told me to sing [a children’s song] to identify my voice, which I did as I feared that I would be subjected to physical violence.” 12. On 4 December 2003 an expert forensic report concluded that he suffered from “shift-like” schizophrenia with pronounced psychological effects. 13. On 27 May 2004 the Cheremushinskiy District Court of Moscow (“the District Court”), while considering the criminal charge against the applicant, refused a request by the applicant’s counsel to summon the attesting witnesses P. and K., who were allegedly ex-police officers, for lack of sufficient grounds to question their identity. Counsel further demanded that the signed documents be struck out of the list of evidence as they were improperly drawn up. This request was also dismissed as the court held that the documents had been drawn up in accordance with the law. 14. On 28 May 2004 the District Court found that the applicant had committed attempted robbery with assault, but relieved him of criminal liability on account of his mental-health status and ordered his placement in a psychiatric hospital. The court based its conclusion on the statements of Ms G. and Mr Sh. made in court, as well as various procedural documents, including the record of inspection of Ms G.’s belongings and the decision to include the objects in the body of evidence signed by the attesting witnesses. It also referred to the statement made by the applicant’s mother, who acted as his lawful representative, to the effect that the applicant had been beaten up by strangers who had subsequently turned him in to the police. 15. On 11 August 2004 the Moscow City Court (“the City Court”) upheld the above-mentioned decision on appeal. 16. On 16 October 2003 the applicant’s mother complained to the prosecutor of the Cheremushinskiy District of Moscow, requesting the opening of criminal proceedings in connection with the applicant’s alleged ill-treatment in custody. On an unspecified date her complaint was referred by the prosecutor to the internal security office of the Interior Department of the South-West Administrative District of Moscow for an inquiry. 17. On 16 October 2003 the applicant went to a municipal hospital which recorded multiple bruises on his head, neck and torso, and an abrasion on the back of his head. 18. On 18 October 2003 he attended at another hospital which recorded an infected wound on his head and hypoesthesia of the fingers of the right hand. 19. Both records contain the following references: “According to the [applicant], on 14 October 2003 he was beaten up by the officers of Cheremushinskoye police station”. 20. On 4 December 2003 the investigator in charge of the applicant’s criminal case commissioned an expert forensic report on account of the applicant’s allegations of ill-treatment made in the course of the criminal investigation against him. In his order he indicated that the experts should examine the available medical documents. He also referred the complaint of ill-treatment for examination to the prosecutor’s office of the Cheremushinskiy District of Moscow. 21. On 19 December 2003 the internal security office of the Interior Department of the South-West Administrative District of Moscow completed the inquiry prompted by the applicant’s mother’s complaint, producing a report of the same date. In particular, the inquiring officer stated as follows: “Police officers M. and S. questioned in the course of the inquiry stated that they had put handcuffs on [the applicant] as during the apprehension the latter had put up resistance and had tried to hit M. The above-mentioned officers also stated that when they had discovered that [the applicant] had a head injury, they called an ambulance after escorting [the applicant] to the police station. After [the applicant] was administered medical aid at Moscow municipal hospital no. 1, he was again brought to Cheremushinskoye police station. Duty officer Shi. and investigator G. stated that there had been no unlawful actions during [the applicant’s] apprehension and questioning. ... Thus, the allegations of unlawful actions by police officers were not proved during the inquiry, and the use of handcuffs was not in breach of Article 14 of the Police Act. However, given that the complaint refers to unlawful actions by police officers which fall within the competence of the prosecutor’s office, [I] suggest terminating the internal inquiry, sending the material collected by the internal inquiry to the Cheremushinskiy District prosecutor’s office for taking a decision in accordance with the law, and informing the parties concerned about the decision.” 22. On 24 December 2003 the State forensic experts issued a conclusion which reiterated the medical data as described above (see paragraphs 17 and 18 above) and stated that the recorded injuries had not led to any consequences for the applicant’s health. The experts could not determine the circumstances or the date of the injuries due to the lack of comprehensive data. 23. On 9 January 2004 the prosecutor of the Cheremushkinskiy District of Moscow, relying on the statements made by police officers M., S. and Shi. in the context of the investigation by the internal security office, decided not to institute criminal proceedings in respect of the applicant’s alleged ill-treatment. 24. On 22 September 2004 the applicant, his mother and counsel challenged the above decision in court. 25. On 18 November 2004 the District Court heard the applicant’s mother, his counsel and a representative of the prosecutor’s office and dismissed the complaint as unfounded after concluding that the applicant’s injuries had been caused by the third parties who had restrained him at the scene. In particular, the court said: “As follows from the statements given by Ms G., Mr Sh. and police officers S. and M., at the moment of the arrest [the applicant] ... had injuries which had occurred before arrival of the police. [The applicant’s mother] ... also confirmed at the hearing that her son had been beaten up with a handgun before arrival of the officers of Cheremushkinskoye police station.” 26. On 3 February 2005 the City Court upheld the above decision on appeal.