CASE OF ZAKHARIN AND OTHERS v. RUSSIA
Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect)
András Sajó;Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque
5. The first applicant was born in 1979, the second and third applicants were born in 1974, and the date of birth of the fourth applicant is unknown. The fourth applicant is the common-law wife of Mr Pavel Aleksandrovich Bazhenov (“the fourth applicant’s partner”). The second and fourth applicants live in Irkutsk Region and Irkutsk respectively. The first and third applicants are serving prison sentences in Irkutsk Region. 6. On 14 October 2003 the first and third applicants and the fourth applicant’s partner were arrested and taken to the police station on suspicion of murder. They were allegedly intimidated by police officers seeking to extract self-incriminating statements. 7. On 15 October 2003 a forensic medical examination was conducted in respect of the first and third applicants and the fourth applicant’s partner. It revealed that the first applicant had abrasions on his left shoulder, and bruises on both ears and on the back of his thorax; the third applicant had bruises on his left hip and under his jaw. The expert concluded that those injuries had been sustained the day prior to the examination and that they had not caused any permanent damage to the applicant’s health. The fourth applicant’s partner was discovered to have a closed nose fracture which amounted to slight damage to his health. 8. On 16 October 2003 the Oktyabrskiy District Court of Irkutsk (“the District Court”) authorised the detention of the first and third applicants and the fourth applicant’s partner pending the investigation. It relied on the gravity of the charges and the risk that they might interfere with the administration of justice (abscond, resume their criminal activity or threaten witnesses). They were placed in remand prison IZ-38/1 in Irkutsk. 9. On 24 October 2003 charges of aggravated murder were brought against them. 10. On 11 December 2003 the District Court extended the detention of the first and third applicants and the fourth applicant’s partner until 5 March 2004 on the same grounds. Those decisions were upheld on appeal by the Irkutsk Regional Court (“the Regional Court”) in respect of the first applicant on 29 January 2004 and in respect of the third applicant and the fourth applicant’s partner on 3 February 2004. 11. The first and third applicants’ detention was subsequently extended, on the same grounds, on 3 March and 4 March 2004 respectively, until 5 June 2004. The Regional Court upheld those decisions on appeal in respect of the first applicant on an unspecified date and in respect of the third applicant on 21 April 2004. 12. According to the first applicant, between 14 and 16 October 2003 the police subjected him to beatings, torture with electric wires, and deprivation of food and sleep. 13. Subsequently, for several days starting from 17 October 2003 the first applicant was intimidated by one of his cellmates, S. Ye. (nicknamed “the Nazi”), who had been instructed by the police to extract the applicant’s confession. As a result, on 21 October 2003 the applicant attempted suicide by cutting his left forearm. 14. On the same day the applicant was examined by a doctor, who reported superficial cuts on his left forearm. 15. On 4 November 2003 the applicant was taken to the police station. Throughout the day police officers allegedly beat him in the head, kidneys and genitals, tortured him with electric wires and threatened to kill him and to rape him. As a result, he attempted suicide by cutting his neck with a blade. 16. On the same day the applicant was examined by a doctor, who recorded the following injuries: a four-centimetre long cut on his neck and six superficial two-centimetre long cuts on his left forearm. 17. On 11 November 2003 the third applicant was taken for questioning to the police station, where he was beaten up by police officers S.Sh., S.S. and Ye.Kh. For an hour and a half the police officers allegedly kicked and punched the applicant, who was handcuffed and kneeling, and beat him with a stick. Unable to withstand the torture, the applicant jumped out of a third-floor window of the police station. However, as the applicant’s action was considered an attempt to escape, criminal proceedings were brought against him under Articles 30 § 3 and 313 § 1 of the Criminal Code (attempted escape). 18. The following day, on 12 November 2003 the third applicant was taken to hospital and diagnosed with a fracture to his right upper arm and contusions on his thorax and spinal cord, allegedly caused by the jump from the window. 19. As indicated above the first and third applicants and the fourth applicant’s partner were placed in remand prison IZ-38/1. The fourth applicant submitted that as from 24 October 2003 and for several days onwards her partner was beaten up by other inmates. He was not given any food and not allowed to sleep, and in the mornings he was taken to the police station where the ill-treatment continued. 20. From 25 November to 11 December 2003 the applicant’s partner was kept in detention facility IZ-24/1 in Krasnoyarsk, where, allegedly with the tacit consent of the facility’s officers, he was constantly ill-treated by other inmates. 21. From 11 December 2003 until 15 January 2004 the fourth applicant’s partner was detained again in remand prison IZ-38/1 in Irkutsk. Two of the inmates – S.Ye. and A. – deprived him of food and sleep, and threatened him with murder and rape. The chief of police, A.S., threatened him with rape. Several days later the applicant’s partner was raped by other inmates and the act was videotaped. He was then blackmailed with the tape. Finally, on 12 January 2004 he confessed. On 3 February 2004 the applicant’s partner was transferred to a solitary confinement cell. 22. On 5 February 2004 the applicant’s partner was found hanged. 23. The first and the third applicants and the fourth applicant’s partner complained to the prosecutor’s office of their ill-treatment at the hands of the police. The initial complaint concerned the alleged ill-treatment on 14 October 2003. Separate complaints were brought later in connection with other alleged instances of ill-treatment (see paragraphs 12, 13, 15 and 17 above). 24. On 20 November 2003 the Deputy Prosecutor of Irkutsk Region refused to open criminal proceedings against the police officers. The decision read as follows: “... [The first applicant] submitted that on 14 October 2003 he had been arrested by the police. When being brought to the police station he had been ill-treated by the police officers [description of the beatings]. On 21 October 2003 he cut his left forearm [because he had had a conflict with his cellmates and wanted to be transferred to a different cell]. On 4 November 2003 [the first applicant] cut his neck [because he had been beaten up by the police officers]. [The fourth applicant’s partner] submitted that on 14 October 2003 he had been arrested by the police and brought to the police station where physical force had been applied to him [description of the beatings]. He could not describe the officers who had ill-treated him. On 11 November 2003 he was again ill-treated; the police officers tortured him with electric wires and beat him up. [The third applicant] submitted that police officers ill-treated him and he was compelled to jump out of the window. ... [Chief police officer G.] submitted that on 14 October 2003 [the first and third applicants and the fourth applicant’s partner] had been arrested on suspicion of having committed particularly serious crimes. They showed active resistance during the arrest and therefore physical force and cuffing were applied to them. After the arrest [the above persons] were brought to the police station. The first applicant and the fourth applicant’s partner had injuries which had been inflicted on them at the arrest. Subsequently the first applicant and the fourth applicant’s partner were taken to the investigator for participation in the investigative actions. No physical or mental coercion was applied to them ... Similar statements were given by police officers Sh., S. and P. [The latter] added that on 4 November 2003 [the first applicant] participated in an investigative action at the police station. After the investigative action was completed, he and the [first applicant] remained waiting in office no. 302 for the applicant to be taken back to the remand prison. [The first applicant] was nervous, [he] expressed his fears of receiving a long sentence. During the conversation he cut his neck. He was provided with medical aid and taken to the remand prison, where he was examined by a doctor. According to the reports of the forensic medical examinations, the injuries of [the first and third applicants] did not cause any permanent damage to their health, and the injuries of [the fourth applicant’s partner] caused slight damage to his health. The [above] injuries could have originated from the impact of hard blunt objects with a limited surface area, which could be a fist or a foot. These injuries were caused to [the first and third applicants and the fourth applicant’s partner] at their arrest by the police officers. An inquiry was carried out in accordance with Article 144 of the Code of Criminal Procedure which established that [the first and third applicants and the fourth applicant’s partner] had shown active resistance during their arrest and the police had applied physical force and special means to them pursuant to Articles 12-14 of the Law on police. On 18 November 2003 the institution of the criminal proceedings against the police officers was refused in the absence of constituent elements of a crime in their actions. An inquiry was carried out in accordance with Article 144 of the Code of Criminal Procedure into [the first applicant’s] causing himself injuries on 21 October 2003. On 22 October 2003 the institution of the criminal proceedings was refused. Bodily injuries in the form of cutting wound of the neck were self-inflicted by the [first applicant], which is confirmed by the latter’s statements. No other injuries were discovered on [the first applicant] at his examination on 4 November 2003. This fact disproves [the first applicant’s] allegation of having been beaten up by the police on that day. On 11 November 2003 [the third applicant] jumped out from the third-floor window of the police station in an attempt to escape. Criminal proceedings were instituted against him under Articles 30 § 3 and 313 § 1 of the Criminal Code. No evidence was established during the inquiry to substantiate the allegations that police officers Sh., S., G. and P. had applied physical and mental coercion to [the first and third applicants and the fourth applicant’s partner]. The submissions made in this respect by [the latter] are unsubstantiated and far-fetched. ...” 25. On 4 March 2004 the Prosecutor of Irkutsk Region set aside the decision of 20 November 2003 and opened criminal proceedings against a number of police officers under Article 286 § 3 (a) of the Russian Criminal Code (Abuse of office associated with the use of violence or entailing serious consequences). 26. On 8 August 2006, however, the criminal proceedings were discontinued owing to the absence of constituent elements of a crime in the actions of the police officers. The applicants did not appeal against this decision in court. 27. On 11 February 2004 the Irkutsk Regional Prosecutor’s Office instituted criminal proceedings into the death of the fourth applicant’s partner under Article 110 of the Criminal Code (incitement to suicide). 28. On 11 May 2004 a post-mortem examination of the applicant’s partner was completed. It was established that he had died as a result of strangling. Apart from visible marks on his neck, the following injuries were recorded: abrasions on the neck, the lumbar region, the chest, the right forearm, the right wrist and the right hand; bruises and abrasions on the forehead; bruises in the soft tissues of the neck; and a hemorrhage in the mucous membrane of the anus. 29. On 26 June 2006 the criminal proceedings were discontinued owing to the absence of evidence of a crime. It was established that on 3 February 2004 the fourth applicant’s partner had been transferred to a solitary confinement cell after his lawyer had complained that the former had been subjected to abuse by other inmates. Thereafter, on 5 February 2004 the fourth applicant’s partner was found hung in the cell. The forensic medical expert concluded that the death had occurred as a result of strangling. It was further established that on the day of his death the fourth applicant’s partner had been kept in the cell alone, and that the lawyer’s allegations that his client had been ill-treated by other inmates had not been confirmed. 30. The lawfulness of the above decision was challenged before the court by the father of the deceased, Mr A. Bazhenov, who was granted victim status in the relevant proceedings. 31. On 16 July 2007 the Kuybyshevskiy District Court of Irkutsk found the above decision lawful and justified. It was not appealed against to the Regional Court. 32. On 25 December 2006 the Regional Court convicted the first and third applicants, along with five other co-defendants, of banditry, aggravated murder and robbery. It sentenced the first applicant to life imprisonment and the second applicant to twenty years’ imprisonment. The trial court examined the allegations of police ill-treatment in so far as the admissibility of evidence was at issue. It heard the applicants, examined the medical evidence, and questioned the applicants’ former cellmates and the police officers allegedly involved in the ill-treatment. Having taken into account the conclusions of the investigation, the court held that no unlawful methods of interrogation had been used against the applicants. 33. On 25 September 2007 the Supreme Court of Russia upheld the judgment on appeal. 34. On 5 September 2003 the flat of one of the victims was searched within the framework of the murder case involving the first and third applicants and the fourth applicant’s partner. The second applicant, who was found armed inside the flat, was taken to the police station for identification and questioning. He was kept there until 7 September 2003. According to the second applicant, police officers struck him in the area of his only kidney, tried to throw him out of the window, then forced him out onto the windowsill, from where he lost his balance and fell three floors down. 35. From 7 September to 7 October 2003 the second applicant underwent treatment in the traumatology unit of Angarsk hospital no. 36 for a cerebral contusion, massive damage to the soft tissue of his body and extremities, diffused hypodermic and subfascial haematomas, multiple abrasions on the head and extremities, kidney contusion, compression syndrome and right-sided post-traumatic pneumonia. 36. Meanwhile, on 8 September 2003 the applicant sought to institute criminal proceedings against the police officers. However, on 2 October 2003 the Deputy Prosecutor of the Irkutsk Region refused to open criminal proceedings, having arrived at the conclusion that the applicant had jumped out of the window in an attempt to escape. The applicant challenged the lawfulness of that decision in court. 37. On 22 December 2003 the Kirovskiy District Court of Irkutsk found the decision lawful and justified. 38. The applicant did not appeal against the judgment before the Regional Court.