CASE OF BELOUSOV v. RUSSIA
Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 5-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Anatoly Kovler;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva
5. The applicant was born in 1973 and lives in the town of YuzhnoSakhalinsk in the Sakhalin region. 6. In December 1999 the applicant arrived in Moscow. On 3 December 1999 he was examined by the Moscow medical commission, which found him to be in good health and fit to drive a car. 7. On 5 December 1999 the applicant gave an interview to a national TV station, NTV, which was running a story on a dispute between private holders of government bonds and the Ministry of Finance. During the interview the applicant, the head of a group of private bondholders, accused the Ministry of initiating a vendetta against him and ordering assaults on bondholders to pressurise them into withdrawing their lawsuits against the Ministry. The interview was aired on NTV’s weekly political analysis show, Itogi. 8. On the same day police officers stopped the applicant and his brother in the street and asked them to show identification documents. The Government alleged that the police officers had acted on information about wanted criminals who looked remarkably similar to the applicant and his brother. According to the Government, the applicant and his brother were not in possession of any papers which could have proved their identity and they were taken to Koptevo police station in Moscow (ОВД «Коптево» г. Москвы) owing to their “refusal to comply with the orders of the police officers and use of obscene language in public”. According to the applicant, he and his brother disclosed their identity, his brother presenting a military ID card and the applicant showing a work pass. 9. At the station a police officer, Kh., drew up a note addressed to the head of the Koptevo police department. The note read as follows: “[I] am writing to inform you that on 5 December 1999, at 1.45 p.m., Mr Belousov was brought to the police station together with Mr V. [NB: the police officer]; at the address ..., following several requests to present documents proving his identity, [Mr Belousov] refused to show them and started swearing at us in the presence of private individuals, using obscene language and at the same time repeating that it would cost us five thousand roubles; the two men refused to follow us to Koptevo police station. The identity check was prompted by telephone message no. 12316.” 10. According to the applicant, he was severely beaten in the police station by a group of allegedly drunk police officers. After the beatings he was moved to a cell. Several hours later he was brought to a room and forced to strip to the waist. He placed his clothes in a bag and was forced to lift the bag, which weighed approximately four kilograms, and to put it down. He had to perform this “exercise” over and over again. The applicant alleged that the task had been extremely difficult for him, as on 6 October 1999 he had undergone surgery and had been prohibited from lifting weights heavier than a kilogram. The applicant lost consciousness and was taken to the Botkin clinical hospital. 11. The Government, relying on information provided by the Prosecutor General’s Office, confirmed the fact that the applicant had sustained injuries. 12. In the hospital the applicant was examined by a neurosurgeon, a neuropathologist, a urologist and an oculist. Medical report no. 29314 was drawn up. The report indicated that the applicant had been admitted to the hospital at 6.45 p.m. on 5 December 1999 and that he had been diagnosed with “an injury to the front abdominal wall, bruises on the forehead and left hand, an injury to the kidneys, a craniocerebral injury and concussion”. 13. The applicant stayed in the hospital until 10 December 1999. According to medical certificates nos. 081114, 066415 and 091922 issued on 10 and 21 December 1999 and 4 February 2000 respectively, the applicant was on sick leave until 10 February 2000 and underwent treatment at home. 14. On 10 February 2000 the applicant was examined by an occupational medical expert panel (врачебно-трудовая экспертная комиссия) and recognised as physically disabled. Medical certificate no. 163147 issued by the panel indicated that the applicant had “a second-degree disability”. 15. The applicant’s mother complained to the Koptevo district prosecutor’s office that on 5 December 1999 the applicant had been unlawfully arrested and beaten up. 16. On 14 December 1999 the Koptevo district deputy prosecutor sent a letter to the applicant’s mother informing her that criminal proceedings had been instituted against the police officers at Koptevo police station. 17. On 14 March 2000 an investigator from the Koptevo district prosecutor’s office closed the criminal proceedings, finding that there was no case of ill-treatment to answer. The relevant part of the decision read as follows: “In the course of the investigation it was established that on 14 December 1999, at 1.45 p.m., Kh. and V., on-duty officers from the Koptevo district police department, stopped two persons near house no. ... who resembled persons wanted in connection with telephone message no. 12316. The persons concerned refused to present identity documents and were brought to Koptevo police station for an identity check. At the station one of them identified himself as Mr Dmitriy Aleksandrovich Belousov, a third-year student at a military academy; the other introduced himself as Mr Aleksandr Aleksandrovich Konstantinov. Following a check though the Central Data System the identity of Mr D.A. Belousov was confirmed, and at 4 p.m. he was handed over to a representative of the military commander’s office. The second person (Mr I.A. Belousov, as it was established later) was placed in a cell for administrative arrestees; later he felt sick and an ambulance was called for him. At 5.45 p.m. he was handed over to an emergency team which took him to the Botkin clinical hospital. According to a statement by [the applicant], on 5 December 1999 he and his brother Dmitriy were on their way to Koptevo market. At approximately 12.10 p.m. a police officer, wearing no badge of rank or insignia, stopped them and asked them to show some identity documents. [The applicant] showed his “Lukoil-City” company work pass, and [his brother] showed his military ID card. At that moment another police officer, wearing badge no. 4461, approached them and pushed [the applicant]; [the latter] screamed and the police officer then twisted his arm. Consequently [the applicant] asked to be taken to a police station for an explanation. An on-duty patrol which had arrived at the scene took [the applicant] and [his brother] to Koptevo district police station. At the police station [the applicant] went into the lobby to smoke a cigarette. An on-duty sergeant, wearing badge no. 4491, said that arrestees could not smoke there; [the applicant] responded that he had not been arrested, and the sergeant then called a captain who was standing on the steps of the police station. The captain started hitting [the applicant]; when, responding to [the applicant’s] screams, [his brother] ran from the duty room, the captain hit [his brother] with a machine gun and dragged him back to the duty room. The sergeant wearing badge no. 4491 and another sergeant, wearing badge no. 4488, continued beating [the applicant] up. Then [the applicant] crawled to the duty room and asked the police officers who were there to call an ambulance. [The applicant] and [his brother] were placed in a cell for administrative arrestees; the police officers dismissed all their requests to place a call to their house or to call an ambulance. During his detention at the station [the applicant] was twice submitted to a bodily search without any record being taken ... At 5.20 p.m. a major from the military academy arrived to pick up [his brother]. Subsequently a district police officer arrived at the station and, after forcing [the applicant] to strip to the waist, he and the captain present at the station made [the applicant] lift his clothes and move them from one place to another, following which [the applicant] lost consciousness. [The applicant] regained consciousness in a room where it was extremely hot; the police officers took him to a shower room where an officer on duty provided him with medical assistance. From that time on [the applicant] was almost unconscious until his transfer to the surgical wing of the hospital. An ambulance was called for him and subsequently [the applicant] was brought to the Botkin clinical hospital. [The applicant’s brother], who was questioned as a witness, confirmed [the applicant’s] statements in general, but also stated that two police officers had carried [the applicant] from the lobby. When [the applicant’s brother] was leaving the station, [the applicant] had not had any injuries to his head and hands. According to a report by the Koptevo district police department, badge no. 4461 is assigned to Mr P., badge no. 4488 is attributed to Mr V. and badge no. 4491 is assigned to Mr Kh. During an identification parade in which the police officer wearing badge no. 4491 (Mr Kh.) took part, [the applicant] identified him and noted that the police officer in question had not beaten him up but that he had arrested him; [that statement] is corroborated by other police officers’ statements. According to a statement by the police officer, Mr Kh., he and Mr V. were on duty near Koptevo market on 5 December 1999. At approximately 1.40 p.m. they noticed two men who looked similar to criminals wanted in connection with telephone message no. 12316. In response to a request for identity documents, a man ([the applicant], as it was subsequently established) started screaming obscenities at the police officers. The two men refused to show identity documents. In response to the officers’ request that they go to Koptevo police station, [the applicant] said that he would not follow the officers and that he would not speak to a police officer below the rank of major; he also demanded that they call a car. A group on patrol was called to the scene to bring the two men to the police station. Physical force was not used against the two men. Mr Kh.’s statements are fully corroborated by a statement from Mr V. Mr D., who was questioned as a witness, stated that on 5 December 1999, in response to a call from an on-duty officer he, as a member of a group on patrol, together with Mr L. and Mr K., had arrived to render assistance to the on-duty officers. Two apprehended persons were handed over to them; the patrol took them to Koptevo police station. They did not use physical force against the two men. Mr D.’s statements are fully corroborated by statements from Mr L. and Mr K. Mr Do., an officer on duty at Koptevo police station, who was questioned as a witness, stated that on 5 December 1999 two apprehended persons had been brought to the duty unit of Koptevo police station. One of the arrestees introduced himself as Mr Dmitriy Aleksandrovich Belousov, a student at the military academy, and showed his military ID card...; the other person introduced himself as Mr Aleksandr Alekseyevich Konstantinov and did not have any documents on him. Following a check through ... databases which produced a negative response, [the applicant] was asked to state his real name. Subsequently [the applicant] attempted to leave the station and started smoking. An officer on duty, Mr P., made a remark, following which [the applicant] fell to the floor and started screaming that he was being beaten up. When [Mr Do.] asked him what was going on, [the applicant] said that he had undergone surgery and showed scars on his stomach. The arrestee was reprimanded and placed behind bars. Subsequently [the applicant] continued behaving provocatively, used obscene language, threatened the police officers and tore up roubles and dollars. At 5.30 p.m. he complained that he did not feel well and emergency doctors were called, who transferred him to the Botkin clinical hospital. The police officers behaved properly towards [the applicant]; no physical force was used. Mr Do.’s statements were confirmed by statements from police officers Mr R., Mr P., Mr Ka. and Mr S. According to the statements given by a witness, Mr F., on 5 December he and a group of emergency doctors arrived at Koptevo police station. A man was sitting in the station behind bars, with his hand on his stomach. He complained of pain in his stomach. During conversation he stated that he was disabled and that he had recently undergone surgery during which a part of his stomach had been removed; he began showing the scars on his stomach. No visible injuries were discovered on [the applicant]. The police officers behaved properly towards [the applicant]. The patient was taken to the Botkin clinical hospital. Mr Vu., an emergency team medical assistant, who was questioned as a witness, testified that on 5 December 1999 he and the emergency team had arrived at Koptevo police station. A man (the applicant, as was later established) was sitting on a couch behind bars with his hand on his stomach. [The applicant] said that he had been beaten up by the police. Other arrestees held at the station said that [the applicant] was lying. In the car [the applicant] talked, saying that he had undergone surgery. He stated that when he had been approached by police officers in the street and had been asked to show some identity documents he had used obscene language. Ms S., who was questioned as a witness, stated that on 5 December 1999 she had been in a room for administrative arrestees. Three more persons were being held there; one of them ([the applicant], as it transpired later) behaved provocatively, screaming and threatening the police officers. The police officers behaved properly towards all the arrested persons; they did not use physical force. During an additional interview [the applicant] stated that a captain had begun hitting him in the lobby. At first [the captain] had hit him with his right hand on the upper part of the left shoulder; after that blow [the applicant] slipped down by the wall and fell near a rubbish bin. Then the captain kicked [the applicant] twice: once in the stomach and once in the back near the kidneys. The first kick in the stomach was particularly hard. After that the sergeants approached [the applicant] and hit him approximately six times in the stomach and back. The applicant then crawled into the duty room where he was hit several times in the buttocks... According to a report issued in the Botkin clinical hospital [the applicant] had an injury to the abdominal wall, an injury to the right kidney, bruises on the forehead and left hand, a craniocerebral injury and concussion; his state of health was satisfactory. Following ultrasound examinations of the abdominal cavity and kidneys no pathology was detected. A forensic medical examination of [the applicant] was performed in the case. According to the expert report, [the applicant] had sustained concussion and an injury to the forehead, which constituted elements of a single trauma and belonged to the category of injuries causing mild damage to health, that is, a short-term deterioration in health lasting less than three weeks... The diagnosis of “an injury to a kidney” indicated in the medical documents was not confirmed by objective clinical data and the results of the special examinations... The diagnosis “traumatic encephalopathy” indicated in the medical documents could not be examined by the expert, because there was insufficient objective data for analysis... At present [the applicant is suffering] from psycho-vegetative syndrome and depression, and needs psychiatric treatment. There is no mention of an injury to the post-surgical sutures in the medical documents presented for expert examination. Differences in the scar tissue along the line of the postsurgical sutures do not exclude a possible partial opening of the sutures in the upper part. Taking into account the fact that the arguments raised by [the applicant] were not objectively confirmed in the course of the pre-trial investigation ..., [the investigator] orders the closure of the criminal proceedings instituted pursuant to Article 286 § 3 (a) of the Criminal Code of the Russian Federation...” 18. The applicant complained to the Moscow city prosecutor and the Koptevo District Court of Moscow that the criminal proceedings against the policemen had been closed. 19. According to the Government, the decision of 14 March 2000 was quashed on 24 March 2000 by a higher-ranking prosecutor and the case was remitted for additional examination. No copy of that decision was submitted to the Court. 20. On 27 April 2000 an investigator from the Koptevo district prosecutor’s office again discontinued the criminal proceedings, finding that there was no case of ill-treatment to answer. The decision of 27 April 2000 was identical in its wording to the decision of 14 March 2000, save for two additional paragraphs in which the investigator recounted the testimonies of two witnesses, Mr Ch. and Mr Ku., who had been detained at the police station together with the applicant. Both witnesses stated that they had not seen the alleged beatings and that the applicant had behaved “provocatively”. According to the applicant, the decision of 27 April 2000 was not served on him. 21. In the meantime, on 18 April 2000, the Koptevo District Court of Moscow disallowed the applicant’s complaint against the decision of 14 March 2000. The District Court held as follows: “The plaintiff challenges the decision issued in criminal case no. 268869. A complaint concerning a decision issued in the course of criminal proceedings cannot be examined in civil court proceedings. Complaints concerning actions of the prosecution authorities cannot be examined by courts of general jurisdiction, as special laws exist relating to the prosecution”. The Government, relying on a report issued by the President of the Koptevo District Court in March 2006, submitted that the District Court had refused to examine the applicant’s complaint because the decision of 14 March 2000 had been quashed by a prosecutor and the investigation had been reopened. 22. On 12 May 2000 the applicant received a copy of the decision of 18 April 2000. The applicant’s representative asked the District Court to restore the time-limit for lodging an appeal against that decision. A copy of the statement of appeal was attached to the request. No response followed. On 27 November 2001 the applicant’s representative complained to the President of the Koptevo District Court that her request had not been examined. The stamp on the letter of 27 November 2001 shows that the District Court received the letter the same day. The applicant did not receive any response. 23. On 20 March 2006 the Moscow city deputy prosecutor quashed the decision of 27 April 2000 and reopened the investigation into the applicant’s ill-treatment complaint, finding as follows: “The decision [of 27 April 2000] on the closing of a criminal case was issued unlawfully and without any grounds and should be quashed, because in this case it is necessary to question [the applicant’s mother]; to identify and question all the individuals detained in the cell for administrative arrestees when [the applicant] and [his brother] were at the police station; to question further [the applicant’s brother] about his and [the applicant’s] injuries and about material evidence showing that those injuries were sustained; to question further the emergency doctors who arrived at the police station and took [the applicant] to the Botkin clinical hospital in Moscow about the visible injuries; to question thoroughly the doctor who performed the initial examination of [the applicant] in the Botkin hospital; to organise, if necessary, confrontation interviews between the doctors; to carry out a legal evaluation of the [the applicant’s] injuries discovered during the forensic medical examination (concussion, an injury to the forehead, an injury to the left hand and an injury to the right shoulder) and to perform other investigative actions aimed at establishing the truth in the case.” 24. On 29 October 2006 an investigator from the Koptevo district prosecutor’s office discontinued the criminal proceedings against the police officers, concluding that no criminal conduct had occurred (Article 24 § 2 of the Code of Criminal Procedure). The investigator copied the wording of the decision of 27 April 2000, merely adding that the forensic medical examination had established that the applicant’s injuries could have been caused by blows administered with a blunt firm object, possibly on 5 December 1999. He also included additional statements by the two witnesses Ms S. and Mr Ku., who had been unable to recall further details of their stay at the police station in December 1999 owing to the length of time since the events, and had merely confirmed their statements given to the investigator in 2000. The investigator did not question the applicant’s mother and brother because he could not establish their place of residence. He was also unable to identify all the individuals who had been detained at the police station together with the applicant, because the registration logs bearing the names of persons detained at Koptevo police station had been destroyed. 25. On 19 January 2007 the Moscow city deputy prosecutor quashed the decision of 29 October 2006, reopened the investigation into the applicant’s ill-treatment complaints and ordered that investigators should “take procedural decisions concerning the fact that injuries were inflicted on [the applicant], question [police officers] Mr Sh. and Mr V. and take other investigative actions necessary in the course of the investigation”. It appears that the proceedings are now pending. 26. The RSFSR Code of Criminal Procedure (in force until 1 July 2002, “the CCrP”) established that a criminal investigation could be initiated by an investigator on a complaint by an individual or on the investigative authorities’ own initiative, where there were reasons to believe that a crime had been committed (Articles 108 and 125). A prosecutor was responsible for overall supervision of the investigation (Articles 210 and 211). He could order specific investigative actions, transfer the case from one investigator to another or order an additional investigation. If there were no grounds to initiate or continue a criminal investigation, the prosecutor or investigator issued a reasoned decision to that effect which had to be notified to the interested party. The decision was amenable to appeal to a higher prosecutor or to a court of general jurisdiction (Articles 113 and 209). 27. On 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation (“the new CCP”). Article 125 of the new CCP provides for judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court. 28. The Constitution of the Russian Federation adopted by referendum on 12 December 1993 provides, in so far as relevant, as follows: “1. Everyone has a right to liberty and personal security. 2. Arrest, detention and placement in custody shall be subject to a court decision. No one may be detained longer than 48 hours before the court decision is taken.” Section 239 of the Administrative Code (in force until 1 July 2002) provided that the police could subject a person to an administrative arrest to prevent an administrative offence, to establish a person’s identity, to issue a document certifying that an administrative offence had been committed, if it was necessary and could not be done on the spot, and to ensure effective proceedings or the enforcement of administrative sanctions. Section 242 provided, in particular, that the term of administrative arrest should not exceed three hours, except for certain categories of offenders including those who had committed a minor disorderly act, who could be detained as long as necessary until their case was considered by a district (town) judge or a high-ranking police officer. Section 240 set out the requirements with regard to arrest reports. By virtue of section 240 an arrest report was to be signed by the official enforcing the arrest and the arrestee. Section 246 of the Administrative Code provided for appeal against administrative arrest to a prosecutor or a high-ranking police officer. 29. Section 158 of the Administrative Code (see above) established that a minor disorderly act, that is, use of offensive language in public, harassment and other similar acts which disturbed the public order and the peace of individuals, was punishable by up to fifteen days’ administrative arrest.