MAĻINOVSKIS v. LATVIA
Inadmissible
Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva
1. The applicant, Mr Jānis Maļinovskis, is a Latvian national, who was born in 1969 and is currently detained in a prison in Daugavpils. He was represented before the Court by Ms A. Kalēja, a lawyer practising in Riga. 2. The Latvian Government (“the Government”) were represented by their Agent at the time, Ms I. Reine, and subsequently by Ms K. Līce. 3. The relevant facts, as submitted by the parties, may be summarised as follows. 4. According to the Government, on 25 May 2007, at around 8.45 p.m. (around 8.40 p.m. according to the documents provided by the Government) the duty prison officer B.Z. noticed a rope stretched between the window of the applicant’s cell (no. 265) in Central Prison and Matīsa Prison (on 1 November 2008 these prisons were merged into a single prison: Riga Central Prison (Rīgas centrālcietums)). The rope was being used to pass a certain item between the buildings. B.Z. immediately ordered a search of cell no. 265. 5. The parties agreed that the search was carried out between 8.45 p.m. and 9 p.m. 6. According to the Government, prison wardens D.B. and I.R. commenced the search and B.Z. joined them shortly afterwards. The search was carried out in the presence of the applicant, who was the only inmate in the cell. 7. According to information received from the Ministry of Justice, the Central Prison’s log recording special measures (speciālo līdzekļu pielietošanas protokolu reģistrācijas žurnāls) did not indicate that any force or special measures had been applied to the applicant during the search. 8. The applicant alleged that the search had been brutal and that prison staff had inflicted injuries on him. Replying to the Government’s observations, the applicant specified that his nose had been broken and had not healed properly, and that he had sustained bruises in the thorax and chest area and on the neck and face. 9. According to the record of the search, ten CDs, a slingshot and a rope had been confiscated. The applicant denied that the last two items had been found in his cell. 10. The applicant complained to B.Z., after the latter had joined prison wardens D.B. and I.R., that he had been beaten. Immediately after the search B.Z. therefore ordered the applicant’s medical examination by a doctor of the Central Prison. 11. The same day, at 9 p.m., a doctor, P., noted that the applicant’s health condition was satisfactory. The doctor did not record any injuries to the applicant. 12. On 28 May 2007 the applicant complained to a governor of the Central Prison. According to the applicant’s written submission, on 25 May 2007 his property had been stolen and he had been physically maltreated by being kicked and punched in the kidney area and still had pain in his kidneys. The applicant said that he would inform the media and commit suicide if the unlawful conduct continued. 13. The applicant’s complaint was forwarded to the Central Prison’s investigation division. 14. On 30 May 2007 the applicant completed a complaints form, addressed to the Central Prison’s investigation division. He provided the following description of the events of 25 May 2007: “... approximately seven to eight ... employees broke in. That may have been between 6 p.m. and 8 p.m. [The applicant] does not know their names and it is difficult to give a physical description of them because, first, they were in uniforms [and] looked alike and, second, [the applicant] was in a state of shock. At first one of the fattest started to hit [the applicant] ... after [the applicant] started shouting, started to strangle ... one of the broad-shouldered [ones] hit [the applicant] on the torso, more on the sides ... [the applicant] would be able to identify them ... [The applicant’s] beating could be heard in several cells: no. 226 [V.], no. 249 [S.] and all the cell [not visible on the copy] ... ... ... at the doctor ... the doctor was writing something and without carefully looking at [the applicant] answered: ‘But I do not see anything.’ Even though [the applicant] could see a swelling and a bruise on [his] left arm ... [the applicant] suspects that [his] nose was broken while [he] was being strangled between the beds because [he] heard the sound of a crack and started bleeding ...” The applicant also complained that some of his property had been unlawfully removed and damaged. 15. According to doctors’ notes from the Central Prison, on 31 May 2007 the applicant was re-examined by the prison doctor’s assistant, V. The applicant stated that he had sustained injuries on 25 May 2007 during the search in cell no. 265 and had pain in his ribs and nose. V. recorded that no visible injuries could be seen on the applicant. An X-ray was performed on the left side of the applicant’s thorax and the bridge of his nose. On 7 June 2007 a doctor, S., recorded that the X-ray examination had not revealed any pathology. 16. The applicant, however, indicated that during the X-ray a doctor had asked him: “When was your nose broken?” In his submissions to the Court, the applicant said that, according to the X-ray, there had been a fracture “that had been there a while ago”. Yet, the applicant did not specify on what evidence he was relying in support of that contention. 17. In the beginning of June 2007, the Central Prison employees B.Z., D.B. and I.R. gave their explanations (paskaidrojumi). They submitted that no physical force had been applied to the applicant. 18. In the beginning of June 2007 other prisoners provided their explanations. 19. In particular, on 25 May 2007 V.K. had heard the applicant shouting through the window that prison guards had been beating and strangling him. However, V.K. had neither heard nor seen the applicant being beaten. V.K. stated that he would not have been able to hear or see him because his cell was located far away from the applicant’s cell. V.K. was in cell no. 226, which was on the second floor, and the applicant’s cell was on the fourth floor. 20. Another inmate, S.B. declared that his cell, no. 249, was located beneath the applicant’s cell. On 25 May 2007 S.B. had been listening to music. He had just heard some noise in the cell above. He could not affirm that the applicant had been beaten or had been screaming. In the evening S.B. had heard the applicant shouting through the window that prison guards had beaten him. 21. According to the written submissions of two other inmates from the neighbouring cell, no. 264, they had not heard anything on 25 May 2007. With regard to the individuals detained in cell no. 264, however, the applicant submitted to the Court that they had said that they had heard a noise and the applicant’s shouts about being beaten. However, the applicant did not specify on what evidence he was relying to that effect. 22. On 11 June 2007 the head of the Central Prison’s investigation division, I.P., refused to institute criminal proceedings. Reference was made to section 373(1) of the Criminal Procedure Law (no grounds on which to institute criminal proceedings) and section 377(1) (no crime committed). 23. I.P.’s conclusions of 11 June 2007 on the internal investigation referred to the applicant’s allegations and noted that the following had been established: “On 25 May 2007 at around 8.40 p.m. ... [B.Z.] saw a rope between the Central Prison cell no. 265 and Matīsa Prison ... a certain item was being transmitted ... [B.Z.] ordered that ... [D.B.] immediately carry out a search of cell no. 265, where [the applicant] was being held ... The search of cell no. 265 was carried out on 25 May 2007 at 8.45 p.m. by [D.B.] and [I.R.] in [the applicant’s] presence. After the search in cell no. 265 had commenced [B.Z.] arrived and the search was continued in his presence ... ... As [the applicant] complained to [B.Z.] that he had been beaten, immediately after the search he was taken to a duty doctor, who examined [the applicant] and did not establish any bodily injuries. ... On 31 May 2007 [the applicant] ... was referred for a further examination by a doctor, who carried out an X-ray; however no bodily injuries were recorded (doctors’ notes of 31 May 2007 [and] 7 June 2007). ... In the course of the internal investigation explanations were collected from the detainees in cells nos. 226 and 249, [V.K.] and [S.B.], who explained that they could not confirm that in the evening of 25 May 2007 prison employees had beaten up the detainee in cell no. 265 [the applicant] ... Accordingly, the materials gathered during the internal investigation have not confirmed the [allegation] that ... [the applicant] had been beaten during the search ... ... [the applicant’s] allegations in his submissions of 28 and 30 May 2007 are false ...” 24. On 20 June 2007, the applicant appealed to the prosecution against the aforementioned decision of 11 June 2007 refusing to institute criminal proceedings. The applicant argued, inter alia, as follows: “[The applicant] has grounds to believe that in the course of the inquiry persons favourable to the administration, who protect the interests of the administrative employees (secret employees), were called from the adjacent cells and [the applicant] has grounds to believe that detainees who could testify truthfully were not questioned. [Furthermore], as there were no physical traces by the time of the inquiry, independent doctors were not invited to conduct an examination...” The applicant also complained that his ten CDs had been stolen. 25. On 24 July 2007 a prosecutor, R.K., upheld the refusal to institute criminal proceedings. The prosecutor noted that statements had been collected in the course of the internal investigation from persons named by the applicant. They had not confirmed that the applicant had been beaten. Nor did the medical documentation establish any injuries. Accordingly, R.K. concluded that the internal investigation had been thorough and impartial and that there had been no violations. 26. On 3 August 2007 the applicant challenged that decision before a higher-ranking prosecutor. The applicant complained with respect to his ten CDs. He noted, without providing further details, that injuries had been inflicted on him. 27. A higher-ranking prosecutor, S.D., replied on 28 August 2007. She noted that all the material had been analysed again and found that the previous prosecutor had drawn a lawful conclusion. 28. On 3 September 2007 the applicant contested S.D.’s finding. He alleged that the prosecutor had covered up the unlawful acts of the prison administration. He stated, further, that it was practically impossible to prove violence against an inmate in a place of detention. The applicant further alleged that the taking of his CDs had constituted theft. 29. On 9 October 2007 another prosecutor, D.U. found that prosecutor S.D. had examined the material collected by the Central Prison’s investigation division and had duly investigated the applicant’s allegations of ill-treatment. D.U. therefore upheld the refusal to institute criminal proceedings. That decision was final. 30. In a separate set of criminal proceedings, on an unspecified date, the applicant was ordered to undergo a forensic medical examination to assess his injuries. 31. Section 10 of the Medical Treatment Law (Ārstniecības likums), as in force at the material time, provided that the Inspectorate of Quality Control for Medical Care and Working Capability (“the MADEKKI”) was responsible for controlling the professional quality of health care in medical establishments. 32. The provisions of the Regulation of the Cabinet of Ministers no. 218 (2005) (Medicīniskās aprūpes un darbspējas ekspertīzes kvalitātes kontroles inspekcijas nolikums), in force from 6 April 2005 until 8 February 2008, read with respect to the MADEKKI as follows: “3. The Inspectorate has the following functions: 3.1. to control the professional quality of medical care ... in medical institutions... ... 4. The Inspectorate, in order to fulfill its functions, has the following tasks: 4.1. to conduct assessments (ekspertīzes) and give reports (atzinumus) on the quality of medical care ... in a medical institution... ... 4.4. to control compliance with legislation binding upon medical institutions in the area of medical care... ... 4.6. to issue, where provided for by legislation, administrative acts (administratīvais akts) in the area of medical care... 4.7. to examine submissions (iesniegumus) by persons in the area of medical care... ...”