CASE OF ALEKSANDR ANDREYEV v. RUSSIA
Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law);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);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Alena Poláčková;Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Luis López Guerra;Pere Pastor Vilanova
5. The applicant was born in 1987 and lives in Orsk, the Orenburg region. 6. The applicant received a summons from investigator K. to attend office no. 44 at the Sovetskiy district police department of the town of Orsk (отдел внутренних дел Советского района г. Орска) at 11 a.m. on 15 February 2005. The summons contained no further details. At 11 a.m. on 15 February 2005 the applicant, who was 17 years old at the time, arrived at the police station, as requested, together with his father and his friend Ms L. A police officer on duty registered their arrival at the police station. Investigator K. was absent and the applicant was asked to wait. Police officer M. took the applicant to his office. 7. At some point the applicant’s father was asked to participate in an investigative measure. When this was finished he could not locate the applicant at the police station. He and Ms L. were requested by police officer M. to leave the building. They remained outside near the main entrance waiting for the applicant. At some point they were told that the applicant was no longer in the police station. They left at about 7 p.m. As the applicant did not appear at home his parents enquired about his whereabouts at the Sovetskiy district police department, by telephone and in person. After many unsuccessful attempts they were finally told that the applicant had gone to police station no. 2 together with police officer Sh. and that he had stayed there until 8 p.m. 8. According to the applicant, police officer Sh. took him to an experts’ room where he was photographed and fingerprinted. Then, shortly after 3 p.m., Sh. led him out of the police station from a back door in the experts’ room and took him to Orsk police department no. 2 in a police car for questioning. According to the police station logbook, the applicant left the Sovetskiy district police station at 3.20 p.m. on 15 February 2005. 9. The applicant provided the following account of events at police department no. 2. The head of the police department, P., and police officer E. interviewed him about his alleged involvement in thefts from certain shops. The applicant denied involvement in the thefts. E. shackled the applicant’s hands behind his back, told him “to sit on the floor with his legs crossed in front of him”, tied his legs with a rope, “threw the rope across the neck to the back”, “hung it on a chair and pulled it”. The applicant felt severe pain in his back. 10. At some point operative police officer K. came in and interviewed the applicant. When P. and E. both came out K. untied the applicant’s legs and demanded that the applicant write a statement of “surrender and confession”. The applicant maintained his refusal. K. opened the door and called E. The applicant “understood that he would be tortured again”. He ran up and hit his head against the glass door of a bookcase. The glass broke and the applicant received cuts on his face above the left eyebrow and on his head. 11. Then E. tied the applicant’s hands and legs behind his back, passed a metal bar under the rope and hung him on the bar, the ends of which were put on the table and the back of a chair. The applicant had been hanging in that position for about eight minutes when somebody took the bar off and asked E. to untie the applicant. E. refused. 12. At some point E. came out and the applicant was untied and the handcuffs were removed from him. K. demanded again that the applicant write a statement of “surrender and confession”. The applicant started writing the statement as requested. P. came in together with lawyer S. who offered his services as counsel for the applicant’s defence. The applicant refused because he wished to be represented by a lawyer of his own choice. 13. Reluctant to continue writing the confession statement, the applicant was taken by E., who was allegedly drunk, to his office. An ambulance, which had been called after the incident with the broken glass, arrived and the applicant was examined by the ambulance medical assistant, who provided him with first aid and left. 14. Thereafter the applicant was questioned by two police officers, who were also drunk. One of them hit the applicant several times on both ears simultaneously with the palms of his hands. The other police officer punched him in the head. 15. Then E. tied the applicant up and hung him on the bar again. The applicant saw blood dripping from his head to the floor. 16. Police officer B. untied the applicant and demanded that he finish writing the statement of “surrender and confession”. The applicant did so and was allowed by P. to leave. The applicant went home, which was about three kilometres away, on foot. 17. At about 9.40 p.m. the applicant arrived home. At 11.05 p.m. he was hospitalised. According to the medical records of town hospital no. 2, where he stayed for in-patient treatment until 4 March 2005, at the time of his admission the applicant was complaining of headache, nausea, vomiting and giddiness. He explained that he had been beaten up by police officers three hours previously. He had an abrasion up to 2 cm long over the left eyebrow and bruises on his scalp. He was diagnosed with an abrasion on the left superciliary arch, contusions of the soft tissues of the head and concussion. 18. The evidence in the case file indicates that police officer E. drew up a record of the applicant’s being “conveyed” (доставление) to the police station. According to that record, at 7 p.m. on 15 February 2005 the applicant was brought to the police station “for examination” (разбирательство) and searched in the presence of attesting witnesses V. and Sh. It was stated in the record, which was signed by police officer E., the two attesting witnesses and the applicant, that the applicant, a “violator”, had been informed of the rights and obligations of a person against whom administrative proceedings were initiated. The record contained no further details. 19. On 15 February 2005 the Orsk police department was alerted by the town hospital that the applicant had been taken to hospital with injuries allegedly inflicted by police officers. 20. On 17 February 2005 the Orsk Sovetskiy district prosecutor’s office received information about the applicant’s alleged ill-treatment by police officers. 21. On 21 February 2005 the applicant’s father complained to the Sovetskiy district prosecutor’s office that the applicant had been the victim of police officers’ unlawful actions. On 4 March 2005 he lodged a similar complaint with the Orenburg regional prosecutor’s office. 22. The Sovetskiy district prosecutor’s office carried out a preliminary inquiry. Its investigator B. received explanations from a number of persons, including the following persons. 23. On 18 February 2005 lawyer S. stated that on 15 February 2005, some time after 7.20 p.m. [the head of the police department] P. had asked him to be present at an investigative measure as counsel for the defence of the applicant, who was suspected of having committed a crime. S. had seen coagulated blood on the applicant’s eyebrow and on his head. S. had asked the operative officers to leave the office and asked the applicant about the origin of his injuries. The applicant had explained that he himself had hit his head against a bookcase. S. had offered his services as counsel for his defence. The applicant refused, as he wanted lawyer Z. to defend him. 24. On 22 February 2005 police officer E. stated that he had left work at 6.50 p.m. on 15 February 2005. At a bus stop he had seen the applicant who had been suspected of having committed thefts from two shops. E. had taken the applicant to the police station, where he had invited two attesting witnesses so that a record could be drawn up about the applicant’s being conveyed to the police station and searched. In the presence of the attesting witnesses the applicant had jumped from his chair and hit his head against the glass door of a bookcase. The glass had broken and the applicant had received cuts on his eyebrow and head. E. had provided the applicant with first aid, had drawn up the record of his being conveyed to the police station, and had transferred him to operative officer K. Some twenty minutes later K. had brought the applicant back, as the applicant was complaining of feeling unwell. E. had called an ambulance. The ambulance staff had provided the applicant with first aid. E. denied any use of force or psychological pressure in relation to the applicant. 25. On 22 February 2005 the head of the police department P. stated that at 7-7.30 p.m. on 15 February 2005 he had been informed that the applicant had been brought to the police station on suspicion of having committed a theft. P. gave statements similar to those by E. about the applicant hitting the bookcase with his head. According to P., the applicant had stayed at the police station for one hour and had left at about 8 p.m. None of his subordinates had committed any unlawful actions in relation to the applicant. 26. On 24 February 2005 attesting witnesses V. and Sh. stated that at about 7 p.m. they had been invited to be present as attesting witnesses at the applicant’s search. After being searched the applicant had jumped to his feet, run up and hit his head against a bookcase. The glass of the bookcase had broken and the applicant had cut his eyebrow. Two police officers had been present during the incident. 27. On 3 March 2005 police officer Sh. stated that on 15 February 2005 at the Sovetskiy district police station he had taken the applicant to the experts’ room, where the applicant had been fingerprinted and photographed, and then to the exit. Sh. denied having taken the applicant to police station no. 2. 28. On 5 March 2005 operative officer K. stated that the police had had information, notably explanations by an eyewitness to a theft at a certain shop, that the applicant could have been involved in the theft. K. had interviewed the applicant, who had been known to the police on account of thefts previously committed by him, at about 7 p.m. on 15 February 2005, after the incident with the broken glass. The applicant had confessed to the theft and had written a statement. After that E. had called the ambulance as the applicant was complaining of a headache. K. denied any use of force in relation to the applicant. 29. On 11 March 2005 investigator G. stated that she had requested that the applicant be summoned to the police station for an identity parade in a criminal case concerning assault and battery. On 15 February 2005 she had carried out the identity parade with the participation of the applicant’s father. As the applicant’s lawyer had not appeared she had cancelled the identity parade in which the applicant was to have participated. The applicant had left her office together with police officer Sh. 30. Expert M. stated that in the afternoon of 15 February 2005 police officer Sh. had brought the applicant to the experts’ room. The applicant had been fingerprinted and photographed. M. confirmed that there was another exit from the building through the experts’ room. He stated, however, that Sh. and the applicant had left through another, “normal” door, through which they had arrived. 31. The applicant gave a description of his alleged ill-treatment (see paragraphs 9-16 above). He stated that he had hit his head against the bookcase in order to stop the ill-treatment. He also stated that police officer E. had threatened to kill him if he told the ambulance staff about the illtreatment. When left with lawyer S. in private he had told him about the illtreatment and forced confession. 32. The applicant’s father and Ms L. gave statements about their visit to the police station on 15 February 2005 (see paragraphs 6 and 7 above). 33. On 14 March 2005 investigator B. ordered a forensic medical examination of the applicant, which was carried out by expert B. on 17 March 2005. The expert was requested to determine the degree of harm to the health of the applicant, who had allegedly been beaten up by police officers on 15 February 2005. The applicant complained of recurring headaches. He had a scar over the left eyebrow. Expert B. also examined his medical records from the town hospital (see paragraph 17 above). In his report no. 892 the expert concluded that the applicant’s injuries, notably the concussion, the wound over the left eyebrow and the bruises on the scalp, had been inflicted by hard blunt objects shortly before he was hospitalised. The injuries were qualified as light damage to health as they had caused short-term health disorder. 34. On 17 March 2005 investigator B. ordered that by virtue of Article 24 § 1 (2) of the Code of Criminal Procedure (“CCrP”) no criminal proceedings were to be instituted in respect of the applicant’s complaint, in view of the absence of constituent elements of a crime under Article 286 of the Criminal Code (abuse of power) in the acts of police officers Sh. (as well as under Article 301 of the Criminal Code, unlawful arrest or detention), P., K., E. (also under Article 302 of the Criminal Code, coercion to obtain statements), and four others. 35. On 21 March 2005 a deputy prosecutor of the Sovetskiy district prosecutor’s office overturned the investigator’s decision, as the inquiry on which it was based was considered incomplete, and ordered an additional inquiry. 36. Investigator B. received the following additional explanations. 37. On 22 March 2005 N., a medical assistant, stated that at 7.30 p.m. an ambulance had been called by police station no. 2. She and G., a junior nurse, had gone to the police station. She had found the applicant in a room with two police officers, who had explained to her that the applicant had hit the glass with his head and broken it. She had examined the applicant, who had cuts over the left eyebrow and on the head. Her examination had not revealed any obvious signs of concussion. The applicant had taken off his clothes. She had not seen any visible injuries on his body. 38. On 23 March 2005 junior nurse G. gave similar explanations. She noted that the applicant had been in a room with two police officers, one of whom had later come out. Then medical assistant N. had examined the applicant. 39. On 23 and 24 March 2005 Ya. and V. stated that in February 2005 they had undergone inpatient treatment at the town hospital and had been in the same ward as the applicant, who had told them that he had been illtreated at the police station. Ya. understood that police officers had handcuffed the applicant and hung him and afterwards hit his head against the wall. According to V., police officers had handcuffed the applicant and hung him, and then either he himself had hit the bookcase with his head or police officers had hit his head against the bookcase. 40. The applicant’s schoolteacher, I., characterised the applicant as sly, deceitful and shifty. 41. Forensic medical expert B. stated that he did not consider it possible to establish reliably how the applicant had received concussion. It could have been the result either of the applicant’s hitting the bookcase with his head or of being punched on the head. 42. On 24 March 2005, on the basis of the results of the inquiry, investigator B. again refused to open a criminal case under Article 24 § 1 (2) of the CCrP, on the grounds that the constituent elements of a crime in the acts of police officers Sh., P., K., E. and four others were absent. As before, the investigator referred to a crime under Article 286 of the Criminal Code (abuse of power), as well as Article 301 of the Criminal Code (unlawful arrest or detention) in relation to Sh., and Article 302 of the Criminal Code (coercion to obtain statements) in relation to P., K. and E.. The investigator found that the applicant had been at the Sovetskiy district police department from 11 a.m. until 3.20 p.m. on 15 February 2005 for an identity parade in a criminal case concerning assault and battery, and that at about 7 p.m. on the same day police officer E. had taken him to police station no. 2 on suspicion of theft. The investigator held that the results of the inquiry had showed that the applicant’s injuries were self-inflicted, as a result of his hitting the bookcase with his head, and that the allegations of ill-treatment by police officers were devoid of any foundation. 43. The applicant’s father appealed against the investigator’s decision of 24 March 2005. He complained, in particular, that the investigator had never held an identity parade in order to identify the two unknown police officers who had delivered blows to the applicant’s head. 44. On 20 May 2005 the Orsk Sovetskiy District Court, sitting in a single-judge formation, heard the applicant’s father, his representative and a deputy prosecutor of the Sovetskiy district prosecutor’s office, and examined the evidence of the inquiry carried out by the investigator. It was satisfied that the inquiry had been comprehensive and thorough, and that the investigator’s assessment of its results had been impartial, reasoned and logical. It dismissed the applicant’s father’s appeal. It noted that an identity parade could only be held once a criminal case had been opened, which was not the case in the present proceedings. 45. The applicant’s father appealed against the District Court’s decision. On 16 June 2005 the Orenburg Regional Court dismissed his appeal and fully endorsed the first-instance court’s findings. It held, inter alia, that the evidence of the inquiry had reliably shown that on 15 February 2005 the applicant had not been arrested as a suspect in a criminal case.