CASE OF TOPORKOV v. RUSSIA
Preliminary objection dismissed (non-exhaustion of domestic remedies);No violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect)
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Loukis Loucaides;Sverre Erik Jebens
7. The applicant was born in 1968 and is serving a prison sentence in Sorda, in the Kirov region. 8. On 9 March 1999 senior police officer U. sent his subordinates, including officers M. and Sh., to arrest the applicant at his flat and take him to the Regional Department of the Interior (УВД Кировской области) for questioning with regard to several cases of theft. According to the applicant, the police officers put him in the back seat of the car, where they started beating him to make him confess to the thefts until he almost lost consciousness. At the police station he was handcuffed and stripped naked in the presence of the police officers and Ms B., an investigator. One of the police officers pulled a knitted hat down over his eyes. Then they pinned him to the table and threatened to rape him with a rubber truncheon. 9. In the evening of the same day the applicant was taken to the Kirov temporary detention facility (ИВС г. Кирова), where he was held for two days. 10. Following the prosecutor’s refusal to authorise the applicant’s detention pending investigation, the applicant was released on 12 March 1999 on a written undertaking that he would not leave town. 11. On 15 March 1999 the applicant was examined by a general practitioner and a surgeon at Severnaya Hospital in Kirov. The applicant complained to the doctors that he had been beaten up by police officers and was experiencing pain in the lumbar region. The excerpt from the applicant’s medical file read as follows: “15 March 1999. On 10 March 1999 [the applicant] was beaten up at the police station. Since then [he] has been bothered by pain in the right lumbar and subcostal region. No dysuria. Satisfactory general condition. Blood pressure measurement 120/80 mmHg. Clear heart beat. Vesicular breathing. Soft abdomen, moderate pain in the right subcostal region. Painful muscle palpation in the right lumbar region. Diagnosis: contusion (ушиб) in the lumbar region?” 12. On 27 April 1999 investigator B. summoned the applicant for questioning in connection with a case of robbery. The applicant denied involvement in the robbery. Despite a refusal by the prosecutor to place the applicant in custody, he was allegedly detained at the police station, where he spent the night sitting on a chair handcuffed to a radiator. 13. After the applicant had been identified by a witness as one of the alleged perpetrators, the prosecutor authorised his detention pending investigation on 28 April 1999. 14. On 29 April 1999 the applicant appointed Ms O., a lawyer, to represent him in the criminal proceedings against him. 15. On an unspecified date the applicant made complaints of ill-treatment to the Kirov Town Prosecutor’s Office. 16. On 21 June 1999 the assistant prosecutor of Kirov Town refused to institute criminal proceedings against the police officers. The assistant prosecutor based her findings on statements made by the police officers and Investigator B., who denied the applicant’s allegations, and on the applicant’s medical file. In particular, the assistant prosecutor stated as follows: “...On 10 June 1999 the Kirov Town Prosecutor’s Office received a complaint by [the applicant]...in which he alleges that officers Sh. and B. of the Internal Affairs Department used unlawful methods of investigation. In particular, they subjected him to physical and mental pressure to make him confess to the offences he was charged with... [The applicant] contests his guilt and requests to be released from custody. ...Furthermore [the applicant] indicates that on 10 March 1999 he was unlawfully detained... On the way to the [police station] he was beaten, the beatings continued upon arrival, the officers bullied and humiliated him ... Investigator B. was also present ... Officer M. submits that he participated in [the applicant’s] arrest... On the way to the [police station] there was no need for them to apply physical force. [The applicant] had voluntarily agreed to come [to the police station] with the officers. At [the police station] [M.] talked to [the applicant] briefly until Investigator B. was available [to question him]. However, [M.] did not apply physical or mental pressure [to the applicant], he did not humiliate or debase him as he was not personally or professionally interested in finding [the applicant] guilty because [M.] did not know the applicant and the cases he dealt with did not involve [him]. He was only assigned to conduct a search at [the applicant’s] flat. [Senior officer] U. confirmed that he had sent his subordinates, including M., to arrest [the applicant], but had not talked to him himself. According to Investigator B., she was in charge of the criminal case involving [the applicant] ... On 9 March 1999 she ordered his arrest ... He was brought [to the police station] by police officers ... She did not see any injuries on him. Nor did he complain to her that he had been beaten on the way to the [police station]. In her presence none of the police officers of the department had pressured [the applicant physically or mentally] ... The prosecutor refused to authorise his detention and [the applicant] was released on a written undertaking not to leave the town ... According to a report from the temporary detention unit where [the applicant] was held from 9 to 11 March 1999, he did not request medical assistance and did not have any bodily injuries ... An excerpt from the [the applicant’s] medical file states that on 15 March 1999 he consulted a general practitioner complaining that he had been beaten at [the police station] on 10 March 1999... However, it is impossible to establish beyond reasonable doubt that the applicant’s injuries were caused by the police officers. On 10 March 1999 the applicant was held at the temporary detention unit ... and did not ask for medical assistance. Furthermore, he was released from the temporary detention unit on 11 March 1999, but he did not consult [the doctors] until 15 March 1999, that is, four days later. During that period he could have been injured in different circumstances ... The applicant’s allegations are not consistent with the findings of the inquiry. This indicates that the applicant is trying to mislead the prosecutor’s office and the court with regard to his guilt.” 17. The prosecutor also dismissed as unfounded the applicant’s complaint that he was handcuffed on the night of 27 April 1999. 18. In September 1999 the Oktyabrskiy District Court in Kirov opened the trial. The applicant maintained his innocence and alleged, inter alia, that the police officers had used unlawful investigation methods to make him and other defendants confess to the crimes, which resulted in the false testimonies against him given by other defendants. 19. On 23 November 1999 the District Court found the applicant guilty of robbery and theft and sentenced him to twelve years’ imprisonment. The court dismissed the applicant’s allegations that he had been subjected to beatings and unlawful investigation methods while in police custody, stating as follows: “The court cannot accept the allegations made by defendants K., O. and [the applicant] that police officers subjected them to psychological or physical pressure during the investigation. As pointed out earlier, the prosecutor’s office conducted thorough inquiries in respect of the actions of the police officers, and the [defendants’] allegations proved to be unfounded .... Furthermore, the court questioned officers Sh., U., M. and [investigator] B., who had been involved in the criminal investigation. They testified to the court that they had not subjected the defendants to any unlawful treatment. The Court has no reason to doubt their testimonies, given that they... had been warned of their criminal liability for perjury or refusal to testify.” 20. The applicant appealed against his conviction, alleging, in particular, that the police officers had subjected him to ill-treatment. 21. On 22 February 2000 the Kirov Regional Court upheld the applicant’s conviction on appeal. The court did not make a specific ruling on the applicant’s allegations of ill-treatment. 22. On 17 August 2000 the applicant lodged a complaint about his conviction and ill-treatment with the Kirov Regional Prosecutor. On an unspecified date he forwarded a similar complaint to the General Prosecutor of the Russian Federation. 23. On 30 August 2000 the First Deputy Regional Prosecutor responded that the applicant’s conviction was in compliance with law. As regards the applicant’s complaint of the ill-treatment, the prosecutor noted as follows: “The [applicant’s] allegations that he had been subjected to physical and psychological pressure lack any substantiation. The Kirov Town Prosecutor’s Office had earlier conducted an inquiry and refused to open a criminal investigation.” 24. On 31 September 2001 the General Prosecutor’s Office informed the applicant that they did not discern any irregularities in the way the courts had determined the criminal charges against him. Nor had “any unlawful methods of investigation” been employed against the applicant. 25. A prosecutor, investigator or judge is under an obligation to accept for review any complaint concerning a criminal offence and to decide whether a criminal investigation is necessary. They may request relevant material or explanations (Article 109 of the Russian Code of Criminal Procedure in force until 1 July 2002, the “old CCrP”). 26. Where there are sufficient grounds to believe that a crime has been committed, the prosecutor, the investigator or the judge initiates a criminal investigation (Article 112 of the old CCrP). 27. The complainant may appeal against the refusal to open a criminal investigation to a prosecutor or a court (Article 113 of the old CCrP).