CASE OF GORDIYENKO 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)
Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković
5. The applicant was born in 1966 and lives in the village of Verhnyaya Serebryakovka, the Rostov Region. 6. On 1 June 2005 the Volgodonsk Town Department of the Interior ("the ROVD") ordered a test purchase of drugs from the applicant, as he was suspected of drug trafficking. 7. On the same date undercover police officer K. called the applicant and indicated that he wished to buy two doses of opium. The applicant agreed to procure it. At around 11.30 a.m. he met two undercover police agents in the street and sold them two sachets of opium. 8. At around midday, police officers G. and K. arrested the applicant near his flat in the presence of his partner E. and her sister B. The police officers took him to the ROVD station. From the arrest record it follows that the applicant was advised of his right to be assisted by counsel, but decided not to use this possibility. 9. According to the applicant, during the next eight hours he spent in detention police officers G. and K. put pressure on him to confess. They repeatedly beat him up, damaging his kidneys and causing other injuries. Regardless of this, he did not admit his involvement in drug trafficking. 10. Thereafter the applicant was taken to the office of police officer M., who, in the presence of attesting witnesses, examined his hands with a view to finding traces of drugs. Allegedly, the police officers also removed and examined money from the applicant’s pocket. 11. At 9.12 p.m. the applicant was transferred to a temporary detention facility. A paramedic on duty examined him upon arrival there and made the following entry in the medical record: “[The applicant] complains of back pain. [He makes] no complaints in connection with the scratch noted on his right knee. [The applicant] said that scratch had been inflicted during his arrest ...” 12. At 11.27 p.m. police officers G. and K. carried out a search of the applicant’s flat and found a resinous substance which was subsequently determined to be opium. It does not appear that the applicant brought any proceedings to contest the lawfulness of the search. 13. At the detention facility the applicant repeatedly complained of pain in his lower back. On an unspecified date a paramedic of the emergency services examined the applicant in this connection, having diagnosed soft tissue bruising of the lower back (see paragraph 34 below). 14. Between 1 and 10 June 2005 he complained on a few occasions of lower back pain. It appears that detention facility paramedics measured his body temperature, blood pressure and gave him injections of painkillers. 15. On 9 June 2005 the applicant asked the Volgodonsk town prosecutor’s office (“the prosecutor’s office”) to institute criminal proceedings in connection with the alleged ill-treatment of 1 June 2005. 16. On 18 July 2005 the prosecutor’s office refused this request as unfounded. 17. The applicant appealed against that decision in court and before a higher prosecutor. 18. It appears that on 15 August 2005 the applicant was taken to the emergency services of a hospital, where surgeon Tr. performed an X-ray examination of the applicant’s kidneys and some other tests in relation to his alleged back pain. The examination did not reveal any anomalies in his condition. 19. On 17 August 2005 a higher prosecutor quashed the decision of 18 July 2005 and remitted the case for additional preliminary inquiry. It stated: “... The examination of the case file shows that the investigation was perfunctory and the decision not to institute criminal proceedings was premature. In the course of the additional [preliminary inquiry] the investigator should question [police officer] G., and [the sister of the applicant’s partner] B., order a medical examination of [the applicant] and take other steps required to carry out the necessary check at the end of which [he] should take a decision in accordance with the law...” 20. On 19 August 2005 the Volgodonsk Town Court rejected the applicant’s appeal against the decision of 18 July 2005, as it had already been quashed by a higher prosecutor. 21. On 20 August 2005 the prosecutor’s office issued a new decision not to institute criminal proceedings. That decision was challenged in court and before a higher prosecutor. 22. It appears that on 16 September 2005 a supervising prosecutor quashed it and ordered an additional preliminary inquiry into the applicant’s complaints, having noted that the investigative authorities should examine the detention facility paramedics who provided the applicant with first aid. 23. On 19 September 2005 the Volgodonsk Town Court rejected the applicant’s appeal against the decision of 20 August 2005, as it had already been quashed. 24. The investigating authorities questioned E. and B., eyewitnesses to the applicant’s arrest, G. and K., the police officers who had allegedly illtreated him and detention facility paramedic Zyu. 25. On 21 September 2005 the prosecutor’s office rejected the applicant’s request to institute criminal proceedings, having held as follows: “On 8 July 2005 [the prosecutor’s office] received file no. 1195 pr. 05 related to [the applicant’s] complaint of ill-treatment by police officer K. [The applicant] stated that K. ... applied physical and psychological pressure on him. When questioned, K. stated that in May 2005 the police had received information about [the applicant’s] involvement in opium trafficking. On 1 June 2005 G. ordered a test purchase... [Following the test purchase] he and G. arrested [the applicant] and took him to the ROVD station. During [the applicant’s] arrest, his transportation and the subsequent investigation no one used physical or psychological force on him. [The applicant] did not complain about his health and did not ask for an ambulance. All of the investigative actions were performed in the presence of attesting witnesses. K. also submitted that on 1 June 2005 he and G. carried out a search of [the applicant’s] flat. The search was performed in the presence of [the applicant’s] neighbours, attesting witnesses and the owner of the flat. During the search the police found vessels which [contained] traces of drugs and opium [The page is missing].... When questioned, [the applicant] stated that on 1 June 2005 he, accompanied by E. and B., went out of the entrance to the block of flats. He had car keys, [his] driving licence, car [registration] documents and 900 Russian roubles in his pocket. After a short conversation with an acquaintance, he was knocked down by two men who handcuffed him. One of these men introduced himself as police officer K. In the presence of E. and B. that officer took the car keys, driving licence and car [registration] documents from [the applicant]. At 11.40 a.m. [the applicant] was taken to the ROVD station. He was taken to an office where K. and G. began to hit him [on the] lower back with a plastic bottle filled with water. They forced him to confess to drug trafficking. Thereafter he was taken to M.’s office, where in the presence of attesting witnesses a police officer took 1,200 Russian roubles from his pocket. A special examination showed that [both the applicant’s] hands and the banknotes had fluorescent marks [on them]. [The applicant] refused to give a statement in the presence of G. and K. During [the applicant’s] detention he asked for an ambulance three times. A detention facility doctor gave him injections of painkillers [every day] for ten days. On 15 August 2005 he was examined by a hospital doctor. [The applicant] asked to be present at the search of his flat. However, this request was rejected by the police... When questioned, B. explained that her sister E. was the applicant’s partner and lived with him and their daughter in a flat which belonged to B... On the day of [the applicant’s] arrest she, E. and [the applicant] had gone to a garage. On their way there while the applicant was walking behind them, two young men knocked him down. The men introduced themselves as police officers. She did not see the police officers taking [the applicant’s] belongings from his pockets. She had never seen those officers before. They did not put any pressure on her. When questioned, [detention facility paramedic Zyu.], stated that [the applicant] was brought to the detention facility at 9.12 p.m. and examined there by [him]. From the medical records it was clear that [the applicant] had complained of lower back pain but only the scratch on his knee was noted, received, from his own description during the arrest. [The applicant] complained of chest pain. No other visible injuries were detected. Later he complained about pain in the area of the right shoulder, pain in the chest, in the area of ninth and tenth ribs. On 15 August 2005 he was brought for examination in emergency services of a hospital, where [the applicant] made a X-ray scan and ultrasound examination of his kidneys. No pathologies in his condition were detected. When questioned, E. submitted that on 1 June 2005 at about 11 a.m. she, her sister E. and [the applicant] had gone to a garage. On their way there while the applicant was walking behind them, two young men knocked him down. The men introduced themselves as police officers. She did not see the police officers taking [the applicant’s] belongings from his pockets. The police officers did not use force against [the applicant] during his arrest. They did not put any pressure on her. Having regard to the above, it was established in the course of the inquiry that ... there is no evidence that G. and K. committed the alleged criminal offence...” 26. The applicant appealed and argued that the decision of 21 September 2005 had been based on incomplete information and that the assessment of the available evidence had been wrong. 27. On 10 February 2006 the Volgodonsk Town Court dismissed the applicant’s appeal against the decision of 21 September 2005 and upheld it in full. The court noted that: “... - from the explanations given by [the investigator in charge of the case] it follows that he ... interviewed paramedic Zyu. ... who had examined [the applicant] on 1 June 2005 ... and she explained that there were no injuries on [the applicant’s body], but [the applicant] complained about the pain in the back, which was why it was unnecessary for the investigator also to interview the doctors of the emergency services. In the copies of documents there were statements of paramedic Zyu. ... as well as statements of doctor Tr. of the emergency services who examined [the applicant] on 15 August 2005 making complaints only about the pain in the back and not about anything else; - from the explanation of [the investigator] it also follows that he interviewed [the applicant’s partner E.] who did not communicate any information that on 1 June 2005 during [the applicant’s] arrest in her presence the police officers used physical force in respect of [the applicant] ... On the basis of the above, the court concludes that the investigator’s decision ... was well-grounded and lawful ...” 28. The applicant appealed, having argued that the first instance court had taken the decision in his absence and that its legal and factual conclusions contradicted the case file materials. 29. On 25 April 2006 the Rostov Regional Court examined the applicant’s appeal and quashed the decision of the lower court and remitted the case to the Volgodonsk Town Court for a fresh examination at first instance. It held that: “... in breach of the Code of Criminal Procedure of Russia (“CCrP”), the court did not duly examine the investigator’s decision not to institute criminal proceedings. Thus, the [lower] court did not take into account [the fact] that the investigative authorities had disregarded the prosecutor’s recommendations of 16 September 2005 and had not questioned the doctors of the emergency services who provided [the applicant] with medical assistance. Moreover, the court did not assess the thoroughness of the investigation. The court did not take into account certain contradictions in the witnesses’ statements. In particular, detention facility paramedic Zyu. stated that [the applicant] had repeatedly complained of chest and back pains. In connection with this he was provided with first aid by paramedics. On 15 August 2005 [the applicant] was taken to the city hospital. X-ray and ultrasound examinations showed no signs that the applicant had a medical condition. However [surgeon Tr.] noted that no ultrasound examination had been performed because police officers took the applicant out of the hospital. [Tr.] also submitted that [the applicant] had undergone a blood test and a urine test. The [lower] court did not take into account [the fact] that the investigator’s conclusion that there was an absence of any evidence of the [applicant’s] ill-treatment was unfounded. From the case file it is evident that between 1 and 10 June 2010 a detention facility doctor and paramedics provided [the applicant] with first aid. The [lower] court did not notice that the investigating authorities had failed to establish the cause of [the applicant’s] health problems and to check whether [the applicant] had had kidney disease before his arrest. This indicates the superficial character of the investigation. The court cannot accept the [lower] court’s references to [the applicant]’s conviction because [the applicant’s] allegations of ill-treatment were not examined on the merits in the proceedings against him...” 30. On an unspecified date a higher prosecutor, acting in parallel to the then pending court proceedings, quashed the decision of 21 September 2005 as unlawful and remitted the case to the prosecutor’s office for an additional investigation, having required to interview the paramedic who had provided the applicant with medical aid in prison. 31. On 14 June 2006 the Volgodonsk Town Court left the applicant’s complaint about the decision of 21 September 2005 without examination, noting that that decision had already been quashed by the higher prosecutor. 32. Apparently in response to the prosecutor’s previous recommendations (see paragraph 30 above), the investigating authorities performed some additional investigating measures, in particular, they questioned E. as well as paramedics Ya. and Z. who had provided the applicant with medical aid in prison, doctor Tr. of the emergency services of the hospital and again questioned police officer M., who had carried out investigating actions in respect of the applicant on 1 June 2005. 33. On 14 June 2006 the applicant’s partner E. was interviewed by an investigator of the Volgodonsk Town Prosecutor’s office and gave the following statement: “With [the applicant] I resided together as of the time of his release from prison after he had served his [previous] sentence for extortion. During the time we lived together [the applicant] complained about the pain in kidneys and pain in the area of ribs. I cannot remember the side. From [his] words I learned that during his detention [the applicant] had been severely beaten, as a result of which they broke his rib and contused the kidneys. With these complaints, as long as I remember, he never applied for aid in medical institutions. More than once, including in my presence, in pharmacies he used to buy medicine to relieve the mentioned pain. He also complained about pain in the area of the liver. I don’t know if [the applicant] talked about [this] to anyone. Because he failed to apply for medical aid, the broken rib recovered incorrectly.” 34. On 24 April 2007 the prosecutor’s office refused to open a criminal case. This decision reiterated the findings of the decision of 21 September 2005 and added as follows: “When questioned, Tr. explained that he worked as a surgeon in the emergency services of the hospital and ... that ... [the applicant] applied to him with complaints about the pain in the lower back. He examined [the applicant] and made him undergo the blood and urine tests, failing to detect any anomalies... It was expected also to make an ultrasound test of kidneys, buy the convoy and [the applicant] left the building... When questioned, M. stated that she had been working for the ROVD since September 2000. She was on duty when she received information about [the applicant’s] arrest by police officers G. and K. She carried out initial investigating actions in his regard and examined his hands for traces of drugs. [The applicant] made no complaints about his state of health. He had no visible injuries. She ordered G. and K. to perform an urgent search in [the applicant’s] flat. Neither she, nor other police officers acted unlawfully towards the applicant. When further questioned on 14 June 2006, E. stated that she had been living with [the applicant] since his release from prison. During their cohabitation [the applicant] had complained of lower back, chest and stomach pains. She knew from what [the applicant] had said that he had been beaten in prison. He had never consulted a doctor on account of his health problems. He used painkillers to cope with these pains and never applied to [medical institutions] for [medical] aid. When questioned, [paramedic Ya. of the emergency services] noted that she attended the ROVD’s temporary detention facility upon the [applicant’s] request on account of his lower back pain. No hematomas or bruises were noted on his lower back. Since [the applicant] had no bodily injuries as well as signs of any diseases, she made a preliminary diagnosis – a bruise of soft tissue in the lower back area. To confirm the diagnosis it was necessary to have [the applicant] examined by a surgeon and, if necessary, by other doctors. She did not remember whether [the applicant] complained of ill-treatment or not. Similar statements were given by [paramedic Za. of the emergency services]... When questioned [the applicant’s acquaintance T.] stated that on 1 June 2005 on his way to a [bus stop] he met [the applicant] and his partner, who were going to a garage. They had a conversation for a minute. During that conversation he did not give [the applicant anything] or take anything from [the applicant]. Thereafter, on the way to the bus stop he was stopped by two police officers who checked his documents. He did not see [the applicant’s] arrest. Several days later he learned about [the applicant’s] arrest on suspicion of drug trafficking... Having regard to the above, the investigator concludes that [the applicant’s] allegations of ill-treatment were made in an attempt to escape criminal liability for his offence... In the light of the above considerations, and taking into account Articles 145 and 148 of the CCrP, the investigator orders the refusal of [the applicant’s] request that criminal proceedings against [the police officers] be instituted. There is no evidence of the crimes provided by Articles 286 § 1 [abuse of power] and 303 § 2 [falsification of a criminal case file] of the Criminal Code of Russia having taken place...” 35. The applicant did not appeal against the decision of 24 April 2007. 36. On 17 May 2011 the applicant obtained, for the purposes of the present case, the following statement from his partner E. The statement is made in relation to the earlier statement of E. (see paragraphs 33 and 34) and reads as follows: “Before [the prosecutor’s office] [I] gave false statements about [the applicant]. He never had kidney disease or complained of lower back pain. He had never bought medicine to cope with the pain. I gave those false statements because I thought that [the applicant] would evict me from my flat. I was also unhappy because I had to pay for our flat while he was in detention.” 37. Throughout the proceedings before the trial court the applicant denied his involvement in drug trafficking, claiming that the criminal case against him had been falsified by police officers. 38. According to the applicant, during the trial court hearings he was unable to cross-examine two of the witnesses against him. He also stated that the Volgodonsk Town Court did not ensure the attendance of a witness on his behalf. 39. On 18 October 2005 the Volgodonsk Town Court convicted the applicant of drug trafficking and sentenced him to four years and six months of imprisonment. 40. The applicant appealed against the judgment, having argued that the criminal case against had been falsified by the police. In his appeal brief he did not state his complaints about the alleged inability to cross-examine some of the witnesses and call a witness on his behalf. 41. On 31 January 2006 the Rostov Regional Court examined and rejected the applicant’s arguments, having upheld his conviction and the sentence in full. 42. On 21 September 2006 the Presidium of the Rostov Regional Court upheld the judgments of the lower courts, having re-characterised the applicant’s crime as an attempt to sell drugs and reduced his sentence to four years and three months of imprisonment.