CASE OF BERESNEV v. RUSSIA
Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)
Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
5. The applicant was born in 1979 and lived until his arrest in the village of Kosmedemyanskiy, Kaliningrad Region. On 20 December 1999 the Kaliningrad Regional Court (“the Regional Court”) convicted the applicant of aggravated disruption of order in a detention facility and sentenced him to fourteen years’ imprisonment. According to the last available information from the applicant he continued to serve his prison sentence in a correctional colony in the village of Slavyanovka, Kaliningrad Region. 6. From 23 December 1999 to 26 June 2000 the applicant was detained in Kaliningrad remand prison IZ-39/1 awaiting transportation to Moscow, where he was to attend the hearing of his criminal case in the court of appeal. According to the applicant, the conditions of detention there were appalling, as the cells were overcrowded and dirty and without a minimum of comfort. After 26 June 2000 the applicant was transported to an investigation facility in Smolensk, and thereafter to investigation facility IZ48/3 in Moscow. He alleges that the conditions of detention in both facilities were similar to those in remand prison IZ-39/1. 7. On 13 January 2003 the applicant lodged a tort action against the administration of remand prison IZ-39/1. The applicant claimed 80,000 Russian roubles (RUB) in compensation for non-pecuniary damage caused by the conditions of his detention in the facility from 23 December 1999 to 26 June 2000. At some point the applicant also asked the court to summon as witnesses the inmates who had been detained with him in the cell. He also sought leave to appear before the court in person. 8. According to the Government, on 10 March 2003 the Kaliningrad Tsentralniy District Court informed the applicant about his right to appoint a representative for the proceedings. The court explained that given the applicant’s status as a convict the court had no power to order his dispatch to the hearing. The applicant in reply notified the court that he could not afford to be represented. 9. On 27 March 2003 the Tsentralniy District Court held a hearing in the applicant’s absence. The case was adjourned; the applicant was informed again that it would not be possible for him to attend in person and that he could appoint a representative. 10. On 22 April 2003, the Tsentralniy District Court held a hearing in the applicant’s absence and dismissed his claim. The representatives of the defendants were present and heard. The witnesses were not summoned. The court found that the applicant had failed to provide evidence to prove that his rights had been violated in IZ-39/1 or that the authorities had been responsible for any “mental anguish or other damage” allegedly caused to him. The court held, inter alia, that it was not the fault of the authorities that the cells in the facility had been overcrowded. 11. On 22 May 2003 the applicant requested the Tsentralniy District Court to give him access to the case file. He did not receive a reply to his request. 12. On 30 July 2003 the Regional Court, acting on an appeal, upheld the judgment of 22 April 2003. The applicant was not present. 13. On 12 October 2000 the applicant was transferred to the penal establishment OM-216/13 (“the colony”) in the village of Slavyanovka, Bagrationovskiy District, Kaliningrad Region. Upon his arrival, the colony administration seized for inspection the applicant’s personal documents, letters and photographs. The applicant alleged that the administration had then lost them. Administrative complaints of negligence on the part of the administration were to no avail. 14. On 16 October 2001 (or, according to the Government, 23 October 2001) the applicant brought an action for damages against the colony administration and the Ministry of Finance in connection with the loss of his personal archive. The applicant claimed RUB 6,000 in compensation for pecuniary and non-pecuniary damage. 15. On 15 November 2001 the Bagrationovskiy District Court, Kaliningrad Region (“the District Court”) set a date for the hearing and ordered the defendants to produce written observations in reply to the applicant’s statement of claim, requested the applicant’s personal file from the colony, and summoned a witness, a colony officer. 16. By a letter of 21 November 2001 the court notified the applicant of the date of the forthcoming hearing and asked him whether he agreed that the case could be heard in his absence. The District Court explained to the applicant that there was no possibility in law for a detainee to be transported to court other than in exceptional circumstances. The applicant replied, insisting on attending the proceedings in person. 17. The first hearing was held in the applicant’s absence on 14 December 2001. A representative of the colony was present. The court ordered the hearing to be adjourned until 30 January 2002. On 14 January 2002 (according to the Government on 9 January 2002) the court sent a letter to the applicant explaining to him that the law, in particular Article 77 of the Code of Execution of Sentences, did not permit convicts to attend civil proceedings in person, and advising him to instruct a representative to attend the hearing on his behalf. 18. The applicant replied that he did not have a representative and that he insisted on attending in person. 19. The second hearing was held on 30 January 2002, again in the absence of the applicant and in the presence of the representatives of the defendants. After hearing the defendants’ representatives, examining documents and hearing oral testimony from the only witness present (a staff member of the colony) the District Court found against the applicant. The court concluded that the applicant had received his documents back and had burned them afterwards. The judgment also referred to a statement signed by the applicant that he had received his possessions. 20. On 13 February 2002 the applicant appealed against the judgment. He alleged that the court had wrongfully interpreted the facts of the case because of his absence from the hearings. He also requested leave to appear before the appeal court. 21. Following two hearings, on 29 May and 17 July 2002, held in the applicant’s absence, the Regional Court upheld the judgment of 30 January 2002. The court held that there was no possibility in law for the applicant to be transported to the hearing, and that the judgment at issue was lawful. 22. At the material time the applicant was serving a prison sentence in correctional colony OM-216/13. In October 2001 a group of officers of a special-purpose unit of the Kaliningrad Regional Directorate for Execution of Sentences (UIN) arrived at the colony for the purpose of performing “regime [enforcement] operations”. Searches of the living quarters of the colony conducted by the officers of the unit revealed the presence of “prohibited items” there. 23. On 23 October 2001 several UIN officers entered the cell where the applicant was detained and ordered him to leave the cell. He was told that he had to move to another building of the colony. The applicant and his inmates were taken to the entrance door, where they saw two rows of officers wearing balaclava masks. The applicant was told to run between the rows to a car. While the applicant was running, he received several blows with rubber truncheons. The officers also kicked him and set a dog on him. 24. The ride to the other building took several minutes. When getting out of the car the applicant fell to his knees. On his way back from the car to the colony the applicant and other inmates again passed through the rows of masked officers. The applicant was hit several times with rubber truncheons and kicked. 25. The applicant submitted that inmates Mr Artyomov, Mr Sk., Mr T., Mr G., Mr Ks., Mr Gr. and Mr M. had been subjected to the same treatment on the way to and from the car. A detailed description of the same events by Mr Artyomov can be found in the Court’s judgment in the case of Artyomov v. Russia (no. 14146/02, §§ 36 et seq., 27 May 2010). 26. The applicant, with several other inmates (Mr Artyomov, Mr T. and Mr M.), was chased to one of the colony courtyards. They were lined up with their hands against the wall and their legs apart. Then several guards in balaclava masks approached the inmates and started beating them. An officer kicked the applicant and hit his legs with rubber truncheons. The applicant was also hit several times on the backs of his knees. The officers said that if the inmates did not stop writing complaints and behaving badly, the next time they would be beaten more severely. 27. Thereafter the applicant and other inmates were ordered to run “through the corridor” to their cell. While the applicant was running, he was hit several times on the back and humiliated verbally. According to the applicant, in that incident he received no fewer than twenty blows. 28. During the next week the applicant repeatedly requested to see a doctor. On 2 November 2001 Mr G., the colony doctor, visited him. The applicant told him about the beatings on 23 October 2001. He also showed the doctor his right knee, which was swollen and bruised. The doctor wrote in the applicant’s medical record that the applicant had fallen out of a car. 29. The Government denied that physical force had been used on the applicant, with reference to the findings of the domestic inquiry (see below). 30. Shortly after the incident the applicant sent a number of complaints of ill-treatment to various State officials, including the Prosecutor’s Office of the Kaliningrad Region. 31. On 27 November 2001, 29 April and 10 June 2002 and 30 January 2003 the Prosecutor’s Office of the Kaliningrad Region rejected the applicant’s complaints about the events of 23 October 2001 as unsubstantiated. 32. On 5 June 2003 the applicant lodged a request with the Regional Prosecutor’s Office seeking for criminal proceedings to be instituted on account of the incident of 23 October 2001. According to the Government, on 4 August 2003 the applicant lodged a similar complaint with the office of the prosecutor in charge of the supervision of penal institutions. 33. On 6 August 2003 Mr K., the prosecutor, took a decision not to institute criminal proceedings. The applicant received a copy of that decision on 11 August 2003. The prosecutor concluded that the applicant had not been subjected to violence. That conclusion was based on written submissions from officials of the colony and officers of the UIN, who denied that there had been any beatings or that physical force or “special-purpose hardware” (a term designating items including rubber truncheons, handcuffs, and pepper gas) had been used, and a report by the colony doctor, who testified that the applicant had not requested medical aid on that day. It also referred to the preliminary inquiry carried out at the request of other inmates (Mr Artyomov and Mr Gr.). 34. The applicant lodged several more complaints with the Office of the Prosecutor, but to no avail. 35. On 14 August 2003 the applicant lodged a complaint challenging the decision of 6 August 2003 not to institute criminal proceedings. He submitted that the investigation had been incomplete and requested the court to ensure his presence at the hearings. He also asked for free legal assistance and for the opportunity to meet his lawyer before the hearing. 36. On 29 September 2003 the first-instance court rejected the applicant’s complaint as unfounded. The hearing was attended by the prosecutor, Mr K., and by counsel, Mr D., who was apparently acting on behalf of the applicant and had been appointed by the authorities. On 18 November 2003 the judgment was upheld on appeal. The applicant was notified of that decision in writing on 5 December 2003. 37. On 18 January 2002 approximately 260 inmates of the colony went on hunger strike. Approximately forty inmates performed acts of self-mutilation. Three days later a group of officers of a special-purpose unit of the Kaliningrad Regional Directorate for Execution of Sentences arrived at the colony to give assistance in “performing searches in the living quarters of the colony” as the hunger strike and self-mutilations continued. The applicant joined the collective hunger strike in protest against various alleged violations of his rights. 38. On 21 January 2002, at around 3 p.m., the applicant heard noises in the corridor as if the guards were opening the adjacent cells and sending the inmates out. He then heard blows and groans interspersed by the question: “Why do you refuse to eat?” This continued for the next two hours. 39. At 5 p.m. the guardians opened the applicant’s cell and ordered him and the other inmates to step out into the corridor. Then men in black balaclava masks immobilised the applicant, face to the wall, the hands against the wall and legs apart. Two or three of them then started beating him with their fists, feet and truncheons. Between the blows they asked the applicant why he was refusing to eat. When the applicant turned his head towards the person who had asked him questions, he received a blow and was ordered to look only at the wall. The beating continued until the applicant fell down. He was then forced to stand up and the blows went on until the applicant collapsed again. This was repeated several times. 40. One of the men then told the applicant that he and all the others who had gone on hunger strike had provoked the administration to undertake this operation and that the prison authority would “break the applicant down” and force him to eat just like it had done to others. The next time, the man continued, they would kill him and disguise his murder as suicide. Thereafter the applicant was told to go back to his cell and to accept food from then on. 41. When the applicant got up and went towards the cell, one of the prison officials approached him with the question: “Whom did you try to sue in court?” The applicant replied that he had sued the prison administration. The beating then resumed. The applicant fell down and one of the masked men started jumping on the applicant’s stomach. Some time later the applicant was thrown back into the cell. 42. The applicant submitted that all his cellmates, in particular Mr Artyomov, Mr Gr., Mr G., Mr Ks. and Mr T., had been subjected to the same treatment. Mr Artyomov’s description of the events of 21 January 2002, as well as the Government’s account thereof, can be found in the case of Artyomov, cited above, §§ 46 et seq. 43. The applicant also stated that he had scratches and bruises all over his body. He alleged that in that incident he had received no fewer than thirty blows. 44. Shortly after the incident the applicant received aid from a medical assistant. The latter however refused to document the bruises and other injuries on the applicant and his cellmates. 45. The Government denied that physical force had been used in respect of the applicant, with reference to the findings of the domestic inquiry (see below). 46. In the following months the applicant sent a number of complaints of ill-treatment to various State officials, including the Kaliningrad Regional Prosecutor’s Office. 47. In March 2002 the applicant was informed that one of his complaints had been forwarded to Mr K., the prosecutor. 48. On an unspecified date the applicant was notified that his complaint had been rejected. In the reply of 25 March 2002, simultaneously addressed to the applicant and to a number of other detainees who had made similar claims, Mr K. stated that an inquiry had been conducted with regard to their allegations and that these allegations had proved to be unsubstantiated. The letter admitted, however, that on 21 January 2002 a special forces unit of the Ministry of Justice had taken part in searches of the cells in the prison where the applicant was an inmate. 49. On 21 October 2002 the applicant lodged a request with the Regional Prosecutor’s Office seeking the institution of criminal proceedings in respect of the incident of 21 January 2002. The applicant contended in particular that the inquiry by the prosecutor Mr K. had been ineffective. He described the events of that day once again and referred to his cellmates as possible witnesses. On 15 November 2002 the applicant requested the investigating authorities to question additional witnesses. 50. In response the applicant was informed that on 6 and 25 November 2002 his requests had been forwarded to the prosecutor Mr K. 51. On 20 November 2002 Mr M., an investigator from the prosecutor’s office supervising the penal institutions of the Kaliningrad Region, decided not to institute criminal proceedings in respect of the applicant’s complaint. The applicant received a copy of that decision on 4 December 2002. The decision stated, inter alia: “[A] preliminary examination of the case has nevertheless revealed that the convicts referred to by [the applicant] are giving completely contradictory evidence. Thus, the convict Mr A. asserted that at 4 p.m. on 21 January 2002 he had seen in the corridor ... an officer of the UIN [special forces of the Department of Execution of Penalties] who was giving [the applicant] a kick (Mr A. did not remember with which foot) on the right leg. [The applicant] then collapsed. The officer went on beating [the applicant], delivering at least three blows to his body. Then another agent of UIN came along and started bouncing on the prone body of [the applicant]. Then they lifted [the applicant] and dragged him into the cell. The convict Mr. G. gave the evidence that on 21 January the events had taken place at around 10 a.m. He saw [the applicant] being continuously beaten by three agents of the UIN and other officers passing by. [The applicant] collapsed under the blows, stood up, and the kicking and beating with fists and rubber truncheons went on. They gave him at least ten blows with fists to the back, against the liver and the sides of the trunk, and ten blows with the rubber truncheons to the back and legs. The applicant] then collapsed and they started bouncing on him. The convict Mr T. gave the evidence that the events had taken place on 21 January 2002 at noon. He saw different UIN officers (the convict was unable to specify how many there were) hitting and kicking [the applicant], delivering at least ten blows. The convict Mr M. gave evidence that at 2 p.m. on 21 January 2002 he had been in his cell and had heard groans and the sound of blows coming from the corridor ... Mr M. stated that he had heard from his cell [the applicant] being badly beaten, and also stated that the guards had forced him to withdraw his complaints and other court actions against [the administration of the penal establishment IK-13]. The beating lasted for twenty minutes.” The decision continued: “... given the inconsistencies in the submissions of the convicts, the possibility that they have conspired to give evidence discrediting UIN officers cannot be ruled out. At the same time, the Prison Administration refers very negatively to [the applicant], as being persistently disruptive of prison regulations. He is also hostile towards other prisoners’ taking part in extracurricular activities, and sticks to criminals’ rules and traditions. Between 2 November 2000 and 15 October 2002 [the applicant] was subjected to various disciplinary penalties fifty-three times.” The investigator concluded that there was no need to open a criminal investigation. The applicant’s request for criminal proceedings to be instituted was thus rejected. 52. On 18 December 2002 the applicant lodged a complaint with the Tsentralniy District Court challenging the decision of 20 November 2002. He submitted that the investigation had been incomplete and requested the court to appoint a lawyer to represent him and to secure the attendance of witnesses at the court hearings. 53. By a letter of 16 January 2003 the court informed the applicant that the hearing in his case would take place on 10 February 2003. The court refused to summon witnesses and or to allow the applicant to attend the hearing personally, but agreed to appoint a lawyer for the applicant. 54. On 23 January 2003 the applicant sent a letter to the court in which he insisted on attending in person. 55. By a letter of 4 February 2003 the court rejected the applicant’s request to attend in person and agreed to set up a meeting with a lawyer for the applicant. 56. On an unspecified date the court adjourned the hearing of 10 February 2003 until 17 March 2003. The applicant submits that he has never had a meeting with a lawyer. 57. On 17 March 2003 the first-instance court rejected the applicant’s complaint as unfounded. The hearing was attended by the prosecutor, Mr K., and an appointed counsel who was apparently acting on behalf of the applicant. On 22 April 2003 the decision of 17 March 2003 was upheld on appeal. The applicant was notified of this decision on 12 June 2003. On 4 February 2002 the applicant brought an action for damages against colony OM-216/13. He complained about the beatings on 21 January 2002. In 2002-03 the applicant submitted several procedural requests. He sought to appear in person at court, for witnesses to be summoned on his behalf, and for certain documents to be obtained from the prosecutor’s office. The applicant also made an unsuccessful attempt to seek the withdrawal of the judge in his case. 58. On 26 April 2004 the Bagrationovskiy District Court, Kaliningrad Region, dismissed his tort claim. The court heard the applicant, his cellmates and prison guards, and based its judgment on the prosecutor’s decision of 20 November 2003 not to institute criminal proceedings and the courts’ judgments of 17 March and 22 April 2003 upholding that decision. 59. The applicant appealed and requested to attend the appeal hearings in person. On 13 October 2004 the Kaliningrad Regional Court, in the applicant’s absence, upheld the judgment of 26 April 2004. 60. By a letter of 4 January 2003 the applicant informed the Registry that on 3 December 2003 the administration of the colony had refused to send the applicant’s letter to the Court at the colony’s expense. 61. He also contended that some of his correspondence was not being sent out at all, whereas other letters had been sent out with substantial delays. The applicant did not refer to any particular letters. 62. For relevant domestic law and practice see Artyomov, cited above, §§ 83 et seq.