CASE OF CHERNETSKIY v. RUSSIA
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković
5. The applicant was born in 1971 and lives in the town of Beloozerskiy (Moscow Region). 6. According to the Government, in the morning of 20 March 2002 the applicant, who was armed with a handgun, along with two other persons robbed a shop in Moscow. After the robbery the applicant left the shop with bags containing the stolen items – mobile phones. The two victims of the robbery (Mr G., the owner of the shop, and Mr P., a shop assistant) ran after the applicant. They managed to catch up with him and knocked him to the ground. Mr P. and Mr G. then disarmed the applicant and tied his hands with a belt. The applicant offered resistance. With the help of passers-by, Mr P. and Mr G. held the applicant down for several minutes until the arrival of the police at 11.20 a.m. The police arrested the applicant, seized his handgun and the bags containing mobile phones, and took him to the Lefortovo police station in Moscow. In the police station the applicant wrote a “voluntary confession” acknowledging his participation in the robbery. 7. According to the applicant, he had nothing to do with the robbery. He was walking down the street when Mr G. and Mr P. suddenly pushed him in the back, knocked him to the ground and apprehended him. He offered no resistance. The bags and the handgun did not belong to him. Then he was arrested by the police and escorted to the Lefortovo police station, where they arrived at about 12 noon. After admission formalities had been completed, including a personal search in the presence of attesting witnesses, he was taken to an office, seated on a chair and handcuffed to it. Then five or six police officers entered, including Mr S.P. and Mr R., who started to question him about the circumstances of the robbery. He denied his involvement in the robbery. Mr S.P. took out a baseball bat and threatened to use it unless he confessed to the robbery. He refused and Mr S.P. started to beat him on the head with the bat wrapped in a terry towel. The applicant then fell to the floor. Other police officers started to kick him and beat him with the bat and with rubber truncheons. He alleged that the questioning and beatings continued for about five hours. The police officers also threatened to suffocate him with a gas mask, and to use other torture instruments, such as needles and pincers. To avoid further suffering, the applicant wrote the “voluntary confession”. 8. The handwritten confession of 20 March 2002 contains the following statement, followed by the applicant’s signature: “This confession statement has been written by me voluntarily, without any mental or physical pressure from police officers. [I] have read Article 51 of the Constitution, which states that I have the right not to give explanations concerning my conduct.” 9. Subsequently, the applicant was placed in a temporary isolation ward (“IVS”) at the Lefortovo police station. 10. The following day, on 21 March 2002, the applicant and his counsel lodged complaints with the investigator, Ms K., alleging that he had been ill-treated by the police officers. The applicant’s counsel also asked the investigator to arrange a medical expert examination of the applicant in order to establish when the injuries had occurred and how they had been inflicted. The request contained a description and diagram of the applicant’s injuries. 11. Still on 21 March 2002, a face-to-face confrontation between the applicant and Mr G. and Mr P. took place. They testified that on 20 March 2002 they had apprehended the applicant, who had offered resistance and had tried to escape. Although they acknowledged having knocked the applicant to the ground, they denied having beaten him. They also testified that they had not seen anybody beating him during his apprehension and subsequent arrest. They stated that the applicant had not resisted his arrest by the police. 12. Following the above, the investigator refused the request of the applicant’s counsel for a medical expert examination, pointing out that the injuries could have been caused by Mr G. and Mr P. when they apprehended the applicant. However, the applicant was taken to a hospital for a superficial medical examination. 13. According to a medical certificate of 21 March 2002, the applicant received medical aid at 6.45 p.m. at Moscow hospital no. 111 in connection with “multiple traumatic lesions on the head, chest and the left side of the lower back”. It was also noted in the certificate that the applicant’s medical condition was compatible with detention in the IVS. 14. According to the applicant, after the medical examination he was taken to another office in the Lefortovo police station. For about thirty minutes several police officers beat him up again in an attempt to extract unspecified information of which he was not in possession. 15. On 22 March 2002 the applicant was placed in remand prison IZ77/1, where he was examined by a doctor. The doctor recorded the same injures as those mentioned above. He made the following entry in the applicant’s prison medical file: “On 22 March 2002 the first medical examination was carried out. Diagnosis: multiple traumatic lesions on the head, chest and the left side of the lower back.” 16. On the same date the applicant lodged a complaint with the prosecutor, alleging that he had been subjected to ill-treatment by the police during his detention on 20 and 21 March 2002. The investigator, Ms K., also sent the complaints which the applicant and his counsel had lodged with her on 21 March 2002 to the prosecutor’s office for further processing. 17. Still on 22 March 2002 the applicant’s counsel lodged with the investigator, Ms K., a written request for a visual examination of the applicant to be carried out. According to the applicant, the request was made in order to confirm the bodily injuries inflicted on him by the police on 21 March 2002. However, the text of the request contained no reference to that. The investigator refused the request, noting that a medical examination of the applicant had already been conducted on 21 March 2002. 18. On 28 March 2002 the investigator, Ms K., questioned three police officers (Mr Gal., Mr Pop. and Mr Zav.) as witnesses in the applicant’s criminal case. They stated that on 20 March 2002 they had been on duty at the Lefortovo police station. At about 12 noon, following the instructions of a superior officer, they picked up a suspect from a police unit in the Aviamotornaya metro station and escorted him to the Lefortovo police station. The suspect was handcuffed. He was wearing a shoulder holster with a gun. In the station, the suspect was searched in the presence of two attesting witnesses and identified as the applicant. His gun was seized. The police officers added that a shop assistant carrying four big handbags had accompanied them to the police station. They were not asked whether the applicant had had visible injuries on his body at that time and gave no information in that respect. 19. On 26 April 2002 the assistant prosecutor at the Lefortovo inter-district prosecutor’s office refused to institute criminal proceedings on the grounds that the applicant’s allegations of ill-treatment were unsubstantiated. The decision read as follows: “... On 19 March 2003 [sic] the Lefortovo inter-district prosecutor’s office of Moscow received [the applicant’s] confession to robbery ... Later, in the course of questioning, [the applicant] complained that police officers had used physical force in order to make him confess. He could not give any information as to the names of the police officers who had arrested him, their distinguishing features, location of the office [where the alleged ill-treatment took place] or other facts. During the inquiry it was also established that the applicant is registered with a neuropsychology clinic ... and had not been drafted into the army owing to a neurological disease. Thus, [his] allegations [of ill-treatment] have not been confirmed.” The prosecutor’s decision contained no information concerning any actions taken to verify the applicant’s version of events. The medical documents attesting to his injuries were not mentioned either. 20. On an unspecified date the applicant appealed against this decision to the prosecutor’s office, complaining of the perfunctory nature of the inquiry into his allegations of ill-treatment at the police station. 21. Approximately two and a half years later, on 24 September 2004, the supervising prosecutor set aside the decision of 26 April 2002 refusing to institute criminal proceedings and sent the case back to the prosecutor’s office for further inquiry into the applicant’s allegations of ill-treatment. 22. On 7 October 2004 the Lefortovo deputy prosecutor again refused to open a criminal case. The decision read as follows: “It follows from the applicant’s complaint that on 20 March 2002 he had been brought to the Lefortovo police station of Moscow by two police officers, [Mr] S.P. and [Mr] R. [sic], where he was handcuffed to a chair and beaten with a baseball bat wrapped in a terry towel in order to make him confess to a robbery ... In the course of the additional inquiry the police officer at the Lefortovo police station, [Mr] S.P., was questioned. He explained that on 20 March 2002 [the applicant] had been arrested and questioned in connection with a robbery. The applicant was informed of his rights provided for by the Code of Criminal Procedure and Article 51 of the Constitution against his signature. He gave his testimony voluntarily and without any physical or psychological pressure. None of the police officers used any violence [against the applicant] during his arrest, while escorting him to the police station, or in the station. It was impossible to question the [former] police officer at the Lefortovo police station, [Mr] R., as he had been discharged from the police. Several attempts were made to summon him to the prosecutor’s office. So, on 4 and 7 October 2004 the head of the Lefortovo police station was ordered to send a police officer to do that. According to the information submitted by the head ..., on 4 and 7 October 2004 a police officer went to [Mr] R.’s address, but no one answered the door. According to the neighbours, he had not lived in the flat for a long time. Mr Sap., Mr Sub. and Mr Paut. [police officers at the Lefortovo police station], questioned in the course of the inquiry, stated that they had not met [the applicant] while on duty [on the relevant day]. They did not exercise physical or psychological pressure on him. The investigator of the investigative division at the Lefortovo police station, [Ms] K., stated that she had been in charge of a criminal investigation into robbery ... The applicant was arrested on suspicion of his involvement in the crime and taken to the police station. During the initial investigative actions he made no complaints of any ill-treatment by police officers. Neither she nor any other officer used physical or psychological force against [the applicant]. In the course of the present inquiry it has been impossible to establish the involvement in the events under investigation of any other police officers who were on duty at the police station and in charge of arrestees at the relevant time.” The medical documents confirming the applicant’s injuries were not mentioned. 23. On 3 December 2004 the supervising prosecutor set aside the decision of 7 October 2004 and instructed the prosecutor to question Mr R. and to arrange a medical expert examination of the injuries sustained by the applicant in March 2002. 24. Pursuant to a decision by the prosecutor of 7 December 2004, a medical expert examined the applicant’s medical file. In his report of 16 February 2005, he stated as follows: “According to medical file no. 1812, at 6.45 p.m. on 21 March 2002 [the applicant] went to the outpatient trauma unit of Moscow hospital no. 111 ... In [his?] words, he was beaten up by unknown persons at about 11 a.m. on 20 March 2002. [Results of the examination]: grazes around the hairline (forehead). Violet and yellow bruising around the left shoulder blade and a strip of bruising measuring 1.5 x 6 [cm] in the lumbar area. Palpation [is] painful. Diagnosis: traumatic lesions (ушибы) in the soft tissue of the forehead, left shoulder blade and the left side of the lower back. There are no other entries in the medical file. Conclusions 1. The following injuries on [the applicant] were recorded at the trauma unit: - grazes (ссадины) on the forehead, - bruises (кровоподтёки) on the left shoulder blade, - a strip of bruising on the left side of the lower back. The above-mentioned injuries could have been caused by blunt solid objects and did not cause damage to [the applicant’s] health. The bruises resulted from contact with blunt object(s) and could have been caused by blows with the object(s) as well as by [the applicant] hitting the objects. The grazes were caused by the sliding of an object against the surface of the skin. 2. As the medical file did not contain a more detailed description of the bruises ... it is impossible to determine the exact time when they were sustained.” 25. On 17 February 2005 the Lefortovo deputy prosecutor again refused to institute criminal proceedings. His decision read as follows: “... As it follows from the police report submitted ... the former police officer [Mr] R. has not been found despite several visits to his address in January and February this year. According to his neighbors, [Mr] R. no longer lives there and comes seldom to his flat; they do not know his place of residence. According to the expert report of 16 February 2005 ... [the applicant] sustained bodily injuries in the form of bruises on his face and body ... As the medical documents contain insufficient information, it was impossible to establish when and how they were inflicted. Thus, despite the measures taken, it was impossible to verify the [applicant’s] allegations.” 26. On an unspecified date the applicant complained to a court about the refusal to institute criminal proceedings. 27. On 6 February 2006 the Basmanny District Court of Moscow found that the applicant’s allegations had been duly examined by the prosecution and had been found unsubstantiated. The District Court rejected the complaint on those grounds, stating: “It follows from the material submitted that the [applicant’s] allegations [of ill-treatment] ... have been examined in the course of the preliminary investigation. Following each inquiry a decision refusing to open a criminal case was issued. The [applicant’s] allegations were also the subject of an internal inquiry carried out by the Internal Security Directorate of the Moscow Police Department ... According to the results of the above inquiries, no convincing, objective and sufficient proof of unlawful conduct by the police officers has been established. According to the conviction judgment by the Lefortovo District Court of Moscow [of 19 April 2004, see below], the [applicant’s] allegations were subject to judicial review in the course of the examination of [his] criminal case on the merits. In its judgment the court assessed them and found them ill-founded. The judgment convicting [the applicant] has entered into legal force. Under such circumstances, there are no grounds for granting the [applicant’s] complaint.” 28. On 21 August 2006 the Moscow City Court upheld the decision of 6 February 2006 on appeal, reiterating the reasoning of the District Court. 29. Neither the applicant nor his representative were present at the court hearings, whereas the prosecutor was present and addressed the courts. 30. On an unspecified date the applicant was committed for trial before the Lefortovskiy District Court of Moscow. The charges against him were brought by the Lefortovo inter-district prosecutor’s office. 31. During the trial the applicant repeatedly raised the issue of his alleged ill-treatment at the police station and argued that his “voluntary confession” had been obtained under duress. 32. The applicant’s wife testified before the trial court that when the applicant had left their home on the morning of 20 March 2002, he had been in good health. 33. Mr G. and Mr P. confirmed their previous testimonies: they had not beaten the applicant while apprehending him, nor had they seen anyone else beating him. They did not remember whether the applicant had had any visible injuries by the time the police arrived. However, Mr G. did not rule out the possibility that he may have caused some injuries to the applicant while apprehending him. 34. The police officers who had arrested the applicant and taken him to the police station also denied any ill-treatment of the applicant on their part. They stated that they did not remember whether he had had any visible injuries at the time of his arrest. 35. On 19 April 2004 the applicant was convicted of illegal possession of a firearm and two counts of robbery with violence, committed by an organised group. The conviction was based, inter alia, on the applicant’s confession statement of 20 March 2002. He was sentenced to eleven years’ imprisonment in a colony with a “strict regime”. The court noted in its judgment that on 20 March 2002 the victims of the robbery (Mr G. and Mr P.) had received medical aid in a hospital – Mr G. for a bite on his right hand and Mr P. for an abrasion on his right forearm. 36. On 29 September 2004 the Moscow City Court amended the judgment on appeal, but upheld the sentence. 37. Both courts rejected the applicant’s allegation of ill-treatment, referring to the results of the inquiry carried out by the prosecution authorities so far. 38. Neither the application lodged by the applicant for a supervisory review of his conviction nor his numerous complaints to various authorities about procedural irregularities in his criminal case were to any avail. 39. After the applicant’s conviction had become final, he was transferred to a “strict-regime” colony in the Republic of Komi to serve his sentence. The colony is situated about 1,500 km from his home in the Moscow Region. 40. On an unspecified date in 2005 the applicant asked the Federal Prison Service (“the FSIN”) to transfer him to a colony closer to his home. In its reply of 11 July 2005 the FSIN refused his request on the grounds that there were no “strict regime” colonies in the Moscow Region. The applicant complained about the refusal to the Moscow City Court, which redirected his complaint to the Ministry of Justice. The latter forwarded the complaint to the FSIN. On 14 April 2006 the FSIN wrote to the applicant informing him that his request had been refused on the same grounds. Following a further complaint submitted by the applicant, the prosecutor’s office issued a formal warning (представление) to the FSIN and asked it to remedy the breach of the applicant’s right to serve the sentence close to his home. In September 2006 the FSIN offered the applicant a transfer to a colony in the Vladimir Region, which directly borders the Moscow Region. On 7 September 2006 the applicant declined the offer for unspecified reasons. 41. In January 2007 the applicant applied to the Ust-Vymskiy District Court of the Republic of Komi for a transfer from the strict-regime colony to a “colony settlement” (another type of colony with less stringent conditions). On 24 January 2007 the court rejected the application without consideration and discontinued the proceedings, since the applicant had not yet acquired the right to ask for a transfer. On 3 April 2007 the Supreme Court of the Republic of Komi upheld the decision on appeal. On 18 August 2009 the prosecutor’s office lodged an application for supervisory review (надзорное представление) with the Supreme Court of the Republic of Komi and asked for a fresh examination of the applicant’s case because his transfer request had not been examined on the merits. The outcome of the proceedings is unknown. 42. On an unspecified date in 2010 the applicant was released on probation, having served part of his sentence.