CASE OF DEDOVSKIY AND OTHERS v. RUSSIA
Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Effective investigation);Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev
6. The applicants are: Mr Mikhail Vladimirovich Dedovskiy born in 1969, Mr Alexandr Mikhaylovich Matrosov born in 1968, Mr Viktor Viktorovich Vidin born in 1978, Mr Stanislav Lvovich Bukhman born in 1974, Mr Igor Anatolyevich Kolpakov born in 1975, Mr Dmitriy Vladimirovich Gorokhov born in 1980, and Mr Aleksey Shamilyevich Pazleev born in 1974. 7. At the material time all the applicants were serving a prison sentence in correctional colony no. AM-244/9-11 in the village of Chepets of the Cherdynskiy district of the Perm Region (also known as facility no. IK-11, hereinafter “the colony”). 8. In April 2001 a group of eight officers of a special-purpose unit, Varyag, of the Directorate of Correctional Facilities AM-244 (now renumbered as VK-240, отдел специального назначения «Варяг» Управления лесных исправительных учреждений АМ-244/ВК-240), under the command of Mr B., arrived at the colony for the purpose of “rendering practical assistance in maintaining the detention regime”. 9. Upon their arrival Mr B. and Mr P., the deputy colony director for security and operational activities, devised a plan which included the following measures: searches of the living premises, including the premises of the strict-security department (отряд со строгими условиями содержания), the punishment ward (штрафной изолятор) and cell-like premises (помещения камерного типа); body searches of detainees, including on their return from work; and supervision of the detainees’ compliance with the regime regulations. The officers of the unit wore balaclava masks and carried rubber truncheons during the implementation of the plan. 10. The applicants alleged that the unit officers had beaten detainees with truncheons and kicked and punched them. Specific allegations concerning each applicant are outlined in chronological order below. 11. On coming back from work to the colony living premises Mr Dedovskiy learnt from other detainees that the unit officers were performing a search. The officers wore camouflage and balaclava masks. During the search they hit Mr Dedovskiy on his back four or five times with a truncheon without any apparent reason and verbally assaulted him. On leaving the search premises he received more truncheon blows. 12. Later in the day, when going to dinner, Mr Dedovskiy, among other detainees, was told to squat down and waddle “duck-style” to the canteen. 13. On coming back from work to the colony Mr Matrosov was told to submit to a strip-search. Mr P., the deputy colony director, divided all the detainees into groups of five and told them to run into the search room. Inside the room Mr Matrosov was ordered to look at the floor and comply with all instructions. Any delay in fulfilling an order was met with punches to the stomach and head. Once the strip-search was completed, Mr Matrosov was thrown half-naked out into the courtyard. 14. On coming back from work to the colony, the unit officers hit Mr Vidin on his head, neck and spine with a truncheon during their search. As a result, he could not work for an extended period of time owing to pain in his head and spine. He attempted to seek medical assistance but the medical department was closed. 15. Later in the day, when going to dinner, Mr Vidin, among others, was told to squat down and waddle to the canteen. On entering the canteen and while eating the unit officers hit him in the small of his back. 16. At the roll-call Mr Bukhman was beaten for having answered a unit officer’s question too softly. 17. Mr Gorokhov was held in cell no. 1 of the strict-security department. At about 11 p.m. the unit officers arrived at the department and told the detainees to go out into the corridor and to remain spread-eagled against the wall. While they were standing there, the officers punched them; Mr Gorokhov received several blows to his liver and spine. 18. The unit officers hit Mr Dedovskiy, among other detainees, during the wake-up and on their way to the canteen and back. He was also hit while eating. The officers allegedly hit him with a truncheon, holding it by the light end in order to increase the pain. 19. At their work-place detainees, including Mr Matrosov, were told to form a line. The unit officers and Mr F., the security head, verbally assaulted them. 20. The unit officers allegedly told Mr Bukhman, when going to dinner, to carry another detainee on his back. Then they told all the detainees to go to the canteen in couples holding hands. Mr Bukhman was beaten for refusing to comply with these demands. After that a unit officer jumped on his back and told him to carry him to the canteen. Mr Bukhman’s refusal provoked a new round of beatings. 21. On that day Mr Kolpakov, among other detainees, arrived at the colony to serve his sentence. The unit officers verbally and physically assaulted them on their way from the car to the punishment ward, where the newly arrived detainees were held. Mr F. and Mr T. of the colony administration were present. Later, Mr Kolpakov was taken out of the cell and beaten in the corridor with truncheons. Mr T. was again present. 22. The unit officers, accompanied by Mr F., came to the strict-security department where Mr Gorokhov was being held. The officers shouted at detainees as they were running out of the cells and punched them. Mr Gorokhov was hit and fell to the floor. Thereafter Mr Gorokhov and his cellmates were told to stand up, strip naked and lean spread-eagled against the wall. The officers punched and kicked them and also hit them with truncheons. Mr Gorokhov collapsed several times, but when he rose to his feet the beating resumed. The officers did not make any demands or claims of the detainees. As a consequence of that treatment, Mr Gorokhov had many bruises and abrasions, a headache and sharp pain in his liver. 23. Mr Pazleev was held in cell no. 1 of the strict-security department (the same cell as the sixth applicant, Mr Gorokhov). At about 3.30 p.m. on that day the unit officers opened the door of their cell and put a bench in front of it. The detainees were rudely told to jump over the bench into the corridor. Mr Pazleev stumbled over the bench and fell. The officers started to punch and kick him and to hit him with truncheons. In the corridor all the detainees were stripped naked and placed spread-eagled against the wall. Then the officers beat them. When Mr Pazleev fell, he was made to stand up again and the beating continued. The beatings lasted for approximately twenty minutes. 24. Once the unit officers had left, a doctor and a nurse entered the cell and asked whether there were any “bedridden patients” (that is, who could no longer walk by themselves). Mr Pazleev complained about sharp pains, but received no assistance. 25. The report on the use of a rubber truncheon of 18 April 2001 indicated that “during a search... at 3.30 p.m. the convict Pazleev refused to go out of the living premises into the common corridor, stating that he would be present during the search, although it was the convict Terekhov who had been assigned to be present during the search. Pazleev was warned that in case of further disobedience, a truncheon would be used on him, but he continued to disobey”. The report was signed by two colony officials and Mr B. 26. On coming back from work at about 7 p.m. Mr Dedovskiy, among other detainees, was subjected to a strip-search. During the search the officers punched him and hit him with truncheons. 27. The report on the use of a rubber truncheon of 19 April 2001 indicated that “on returning from the work facility Angara, the convict Dedovskiy repeatedly disobeyed the lawful request of the colony administration... because he flatly refused to spread his arms and legs wide apart for a body search. He did not react to the repeated requests. Thereafter, a rubber truncheon... was used on him”. The report was signed by two colony officials and Mr B. 28. Mr Matrosov, among other detainees, was beaten during the strip-search upon their return from work. 29. On coming to the canteen, detainees, including Mr Matrosov, were ordered to form two lines and run into the canteen one at a time. The unit officers stood at the doors and hit detainees with truncheons. While eating, the detainees were told not to raise their eyes and Mr Matrosov, among others, received a truncheon blow to his neck. On leaving the canteen he received more blows to his back. 30. At the roll-call Mr Bukhman was told to step out of the line and say “ah”. He was beaten for saying it too softly. As a result of the beatings, Mr Bukhman had broken ribs. He applied to the medical department, where a doctor treated the area around the broken ribs with iodine. 31. The unit officers took Mr Kolpakov, among other detainees, out of the cell and into the corridor, where he was spread-eagled against the wall and beaten. 32. Mr Pazleev, among other detainees, was taken out of the cell into the corridor, where the unit officers punched and kicked them and also hit them with truncheons. Mr F. and Mr P., were also present, in an inebriated state. 33. At about 7.15 a.m. the unit officers, together with Mr F. and Mr T., arrived at the strict-security department where Mr Kolpakov had been transferred from the punishment ward on the previous night. All the detainees, including the fifth applicant, were told to run out of the cells into the corridor. The unit officers punched and kicked Mr Kolpakov and beat him with truncheons. He collapsed several times and finally fainted after a particularly strong blow to his head. 34. Mr Kolpakov alleges that he had brain concussion. In December 2001 he was diagnosed with traumatic psychopathy in prison hospital UT-389/9 MOB, which he believes to be a consequence of the beating on 20 April 2001. 35. The report on the use of a rubber truncheon of 20 April 2001 indicated that “the rubber truncheon was used because at the rouse at 7.15 a.m. the convict Kolpakov, along with other convicts, did not fulfil the get-up command. He flatly refused to proceed to the administrative premises to give a written explanation, and refused to give his name or to explain the reasons for his conduct”. The report was signed by two colony officials and Mr B. 36. The unit officers, this time accompanied by Mr T., came to the strict-security department, where Mr Gorokhov was being held. Mr Gorokhov and his cellmates were taken out into the corridor where the officers punched and kicked them and also hit them with truncheons. Thereafter he was allegedly refused medical assistance in the medical department of the colony. 37. The report on the use of a rubber truncheon of 20 April 2001 indicated that “the rubber truncheon was used because at the rouse... the convict Gorokhov did not get up. When ordered to get up and dress, he reacted reluctantly and failed to dress in accordance with the established form of dress. When told to change his clothes and assume the normal look, he did not react, but behaved rudely and tactlessly towards the officers”. The report was signed by two colony officials and Mr B. 38. Mr Pazleev, among other detainees, was taken out of the cell into the corridor, where the unit officers punched and kicked them and also hit them with truncheons. Mr F. and Mr P. were also present, in an inebriated state. 39. On 9 June 2001 the Perm Regional Human Rights Centre handed 160 complaints of ill-treatment written by the colony detainees to the Perm Regional Ombudsman (Уполномоченный по правам человека в Пермской области, hereinafter “the Ombudsman”). The Ombudsman provided the Perm Regional prosecutor with copies of the complaints and requested factual information from the colony administration. On the same day the Usolsk town prosecutor in charge of supervision of compliance with laws in penitentiary institutions opened a criminal investigation into an offence under Article 286 § 3 of the Criminal Code (excess of power involving the use of weapons or special means). 40. On 20 June 2001 the Ombudsman decided to form a public commission for the investigation of the causes and circumstances of the events in colony AM 244/9-11. The commission included the Ombudsman, the director of the Perm Regional Human Rights Centre and a representative of the Perm Regional Government. 41. On 25 June 2001 the Ombudsman visited the colony and talked to the detainees who had lodged the complaints. The majority of them confirmed their statements. 42. On 6 July 2001 the director of facility no. AM-244 replied to the Ombudsman’s request for information as follows: “The measures... with the involvement of the special-purpose unit officers... were carried out from 17 to 19 April [2001] on the basis of Article 82 of the Code on Execution of Punishments and they were not extraordinary... RP-73 [rubber truncheons] were used on detainees who refused to comply... The mass lodging of complaints about allegedly unlawful actions of the unit officers has been arranged by a criminal leader...” 43. On 16 August 2001 the director and other employees of the Perm Regional Human Rights Centre visited the colony. They were allowed to take photos and talked to five detainees in private. The findings were reported to the Ombudsman in the following manner: “Conclusion: there is no reason not to trust the allegations of the detainees. For three days detainees were severely beaten while returning from work, in the canteen... in the punishment ward, in the cell-like premises... detainees were made to squat and waddle and then jump up again... they were stripped naked before the search... It is conceivable that the special-purpose unit was called upon to intimidate [detainees] in the wake of a conflict between the colony administration and the criminal leader. However, no matter how subversive the ringleader’s influence on other detainees might have been, this cannot in any way justify the unit’s actions ... especially taking into account that a majority of detainees in the colony are... unconnected to organised crime. It appears that the detainees were, as usual, ‘collateral damage’ of an extremely complicated and entangled relationship between the management of the correctional institution and criminal leaders.” 44. On 29 August 2001 the Ombudsman paid another visit to the colony and talked to twenty-four detainees. Of those, twenty-one detainees confirmed their initial allegations and indicated that they had given the same statements to investigators from the prosecutor’s office. The Ombudsman found a number of violations of the colony regime, such as belated provision of medical assistance in the punishment ward and cell-like premises, lack of water and lack of remedies against disciplinary sanctions imposed by the colony administration. 45. In late August and early September 2001 Mr Shcherbanenko, the head of the department for supervision of compliance with laws in penitentiary institutions, which is a department of the Prosecutor General’s Office, arrived in Perm for a special inquiry. The Government refused to produce a copy of his report requested by the Court (see paragraphs 103 and 105 below). According to the applicants, he found that (i) the unit officers had used rubber truncheons unlawfully; (ii) when performing their duties, the unit officers should not have worn balaclava masks; (iii) the quality of the pre-trial investigation had been unsatisfactory; and (iv) a few detainees had been unlawfully placed in the punishment ward. The Usolsk town prosecutor was disciplined and the materials of the investigation were transferred to the Perm Regional prosecutor. 46. On 4 September 2001 Mr B., the head of the special-purpose unit, was charged with an offence under Article 286 § 3 of the Criminal Code. On 11 September 2001 he was additionally charged under Article 293 § 1 of the Criminal Code (undue performance of professional duties entailing a substantial impairment of citizens’ rights and interests). 47. On 21 September 2001 a prosecutor discontinued criminal proceedings against Mr B.’s subordinates, officers of the special-purpose unit, finding as follows: “In the period from 17 to 20 April [2001] the employees of the special-purpose unit AM-244 stayed at the colony, executing the deputy head’s request to carry out the planned preventive and regime measures on detainees of the colony IK-11. When carrying out these measures, officers of the unit used rubber truncheons on the detainees. The investigation has taken all measures to determine the part of each unit officer in the events; however, the victims and witnesses were not able to identify the unit officers who had beaten them because they had worn identical camouflage and balaclava masks. Thus, the investigation has not obtained any objective information which would permit charges to be brought against any unit officers.” 48. On 25 September 2001 the same prosecutor discontinued the criminal proceedings in respect of the complaints lodged by the second, third and fourth applicants and 143 other detainees, finding that “the investigation had not obtained any objective information confirming these detainees’ allegations of the use of rubber truncheons by the special-purpose unit”. 49. On 4 October 2001 the same prosecutor discontinued criminal proceedings against Mr B. on the charge of excess of power. The prosecutor noted that Mr B. had not used a rubber truncheon himself and had not given orders to use one. The remaining charge of professional misconduct was referred for trial. 50. On 25 October 2001 the public commission was disbanded because the case had gone to trial. 51. From 4 to 8 February 2002 the Cherdynskiy District Court of the Perm Region held public hearings in the criminal case against Mr B., accused of professional misconduct under Article 293 § 1 of the Criminal Code. In total, forty detainees were granted victim status in the criminal proceedings; of these, nineteen persons took part in the hearings and written depositions by the others were read out before the court. The court took witness statements from five other detainees who had not been victims themselves. 52. The trial concerned ten counts. In counts 1 to 4 twelve detainees were beaten during searches on 17 and 18 April 2001. In count 5 twelve detainees, including the seventh applicant, were hit with rubber truncheons. Two detainees were hit with truncheons at the roll-call on 19 April 2001 (count 6). On the same day Mr B.’s subordinates beat three detainees, including the first applicant, who were returning from work (count 7) and two other detainees during a search in the punishment ward (count 8). In count 9 the fifth and sixth applicants, as well as six other detainees, were beaten with truncheons during the wake-up. Finally, another detainee received a truncheon blow on 20 April 2001 (count 10). 53. Before the court the applicants maintained their claims. The court decided, however, that their allegations were contradicted by the reports on the use of rubber truncheons (cited above) and witness statements by representatives of the colony administration. 54. The employees of the colony, including Mr F., Mr P. and Mr T., as well as Mr B.’s subordinates, denied any unjustified use of rubber truncheons on detainees. The colony doctor confirmed that a few detainees had applied for medical assistance after they had been hit with truncheons; however, no one had had broken ribs or been in a serious condition. Nor had medical assistance been refused to anyone. The five detainees heard by the court corroborated the statements by the other victims. 55. On 22 February 2002 the trial court delivered judgment. It acquitted Mr B. of the charges, finding as follows: “Under Article 86 of the Code on Execution of Punishments and the Penitentiary Institutions Act, employees of penitentiary institutions may use special means, including rubber truncheons, in cases of persistent disobedience to the lawful demands of the colony staff... The court has established that... all demands... were lawful. In all cases the use of [rubber truncheons] was justified because they were used after... a warning of the intention to use a [truncheon] and because they were used when the victims refused to execute lawful demands of the staff, that is, disobedience to the colony staff... Each use of the [truncheon] was reported to B. if he was absent during its application... There are therefore no grounds to consider that [B.] did not exercise appropriate control over the lawfulness of the actions of his subordinates and in that way unduly performed his duties. Nor did the court establish violations of rights and lawful interests of citizens who are the victims in the present case... [T]he court considers that damage to their health was caused on lawful grounds... [T]he court also takes into account that criminal proceedings against the unit officers were discontinued for lack of evidence of a criminal offence... That decision has not been quashed. It does not, in itself, confirm the lawfulness of the unit officers’ actions... but it prevents [the court] from establishing the facts of unlawful actions.” 56. The prosecution and sixteen victims appealed against the acquittal. The prosecution submitted, in particular, that the trial court had based its judgments on the statements by the defendant, his subordinates and the colony administration and disregarded submissions by the detainees. It pointed out factual discrepancies: thus, according to the statements by B.’s subordinates, they had used truncheons twelve times, but B. had signed sixty-three reports on the use of special means. Moreover, it noted that the infliction of physical pain and bodily injuries had clearly violated the victims’ right and lawful interests and that the trial court had failed to identify lawful grounds for the use of physical force and special means. 57. On 17 December 2002 the Perm Regional Court examined the points of appeal and upheld the judgment of 22 February 2002. It noted that Mr B. had played a “merely nominal” part in the events and that he had not been able, or obliged, to control the conduct of each unit officer in his absence. He had not given orders to use truncheons and he had not used them himself. The appellate court held that in these circumstances the acquittal on the charge of undue performance of professional duties had been lawful and justified. It further noted that the investigative bodies had discontinued the proceedings against Mr B. on the charge of excess of power and against his subordinates for the lack of evidence of a criminal offence and it was not therefore required to rule on those issues. 58. Further to the Court’s request, the Government submitted handwritten and typed copies of the applicants’ medical records. 59. The medical records of the applicants Mr Dedovskiy, Mr Matrosov, Mr Gorokhov, Mr Bukhman and Mr Pazleev do not contain any entries relating to the time of the events described above. The entry of 25 June 2002 in Mr Pazleev’s medical record indicates that he was beaten by unidentified persons and underwent in-patient treatment in July 2001 for affected kidneys. 60. The medical record of the applicant Mr Vidin indicates that on 3 October 2001 he was referred to the prison hospital for treatment for inguinal hernia. In August 2002 he applied to the medical department in connection with recrudescence of otitis media, first diagnosed in 2001. 61. According to his medical record, on 5 December 2001 Mr Kolpakov asked to be examined by a psychiatrist, complaining of headache. There are no other entries for 2001. In 2002, 2003 and 2004 Mr Kolpakov received treatment for craniocerebral injury of an unspecified origin. According to the Government, that injury was the result of head traumas in 1982, 1990 and 1993. 62. Detainees and the premises where they live may be searched (Article 82 §§ 5 and 6). 63. Physical force, special means or weapons may be used against detainees if they offer resistance to the officers, persistently disobey lawful demands of the officers, engage in riotous conduct, take part in mass disorders, take hostages, attack individuals or commit other publicly dangerous acts, escape from the penitentiary institution or attempt to harm themselves or others (Article 86 § 1). The procedure for application of these security measures is determined in the Russian legislation (Article 86 § 2). 64. When using physical force, special means or weapons, the penitentiary officers must: (1) state their intention to use them and afford the detainee(s) sufficient time to comply with their demands unless a delay would imperil life or limb of the officers or detainees; (2) ensure the least possible harm to detainees and provide medical assistance; (3) report every incident involving the use of physical force, special means or weapons to their immediate superiors (section 28). 65. Rubber truncheons may be used for (1) putting an end to assaults on officers, detainees or civilians; (2) repressing mass disorders or group violations of public order by detainees, as well as for apprehension (задержание) of offenders who persistently disobey or resist the officers (section 30). 66. If criminal proceedings are discontinued at the stage of the investigation, a victim or a civil party may lodge a separate civil claim unless the proceedings were discontinued on the ground that (a) the alleged offence had not been committed (otsutstvie sobytiya prestupleniya) or (b) the suspect had not been involved in its commission (Article 213 § 4 and Articles 24 § 1 (1) and 27 § 1 (1)). 67. If the defendant is acquitted by the trial court on the ground that (a) the alleged offence was not committed or (b) the defendant was not involved in its commission, the trial court will dismiss the civil claim. If the defendant is acquitted on the ground that one or more constituent elements of a criminal offence are missing (Article 24 § 1 (2)), the trial court will disallow the civil claim but it may be lodged again in separate civil proceedings (Article 306 § 2).