CASE OF BARAKHOYEV v. RUSSIA
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);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
5. The applicant was born in 1982 and lives in Kartsa, in the North Ossetia-Alania Republic. 6. According to the applicant, on 10 January 2007 at approximately 10.30 p.m. the applicant and K. were walking down the street in their town. A white Lada car drove up to them and stopped. Two persons in plain clothes got out, one of whom was a local police lieutenant, Ts. While Ts. was talking to the applicant and K., two more vehicles – an Audi and a Volkswagen – drove up. Seven or eight men in plain clothes got out of the cars. They pushed the applicant into one of the cars. K. broke free and escaped. 7. The individuals who had arrested the applicant took him to an office on the third floor of the police station, where they punched and kicked him and insulted him, shouting that “all Ingush should be crushed”. From time to time they put a black plastic bag over his head to suffocate him. They took off his shoes and beat him on his heels. When the applicant lost consciousness, they poured cold water over him to revive him. They then took him to another office on the first floor. 8. There the policemen planted a grenade in the pocket of his jacket. They searched him and “found” the grenade. The applicant was then interviewed by the investigator. During the questioning, he told the investigator about the arrest (abduction) and the planting of the grenade. 9. According to the Government, on 10 January 2007 at around 10.15 p.m. the police officers asked the applicant to go with them to the police station. The applicant refused, shouting obscenities. His reaction made the officers suspect that he might be in possession of a weapon which he could use against them. They made the decision to use force to arrest the applicant, and when he resisted they restrained him, using a combative technique. The police officers then took the applicant to the police station, where he was subjected to a medical examination due to his inebriated state. The medical report prepared on 11 January 2007 indicated that the applicant did not have any injuries. 10. On 11 January 2011 the investigator questioned the police officers who had carried out the applicant’s arrest. Police captain T. submitted that the decision to arrest the applicant had been taken on the basis of “operative” information received on 10 January 2010 that the applicant was in possession of firearms and ammunition and that he was the leader of a group of young people of Ingush ethnic origin who disturbed peace in the town and provoked tension between Ingush and Ossetian population. He stated that the policemen had stopped the applicant in the street, and had then put him in the car and taken him to the police station, where they had searched him and found a grenade. Lieutenant Ts. confirmed T.’s statement as regards the applicant’s arrest. 11. On 11 January 2007 police captain R. instituted criminal proceedings against the applicant on the charge of illegally possessing a grenade. At 9 p.m. the applicant signed an undertaking not to leave town and was released pending investigation. 12. On the same date the applicant’s parents retained a lawyer to represent him. The lawyer filmed the applicant’s injuries using her mobile phone. 13. On 12 January 2007 forensic medical expert Tkh. examined the applicant. The applicant submitted that on 10 January 2007 a group of persons unknown to him had “beaten him up”. They had kicked him, had beaten him with a stick and had throttled him. The medical expert documented the following injuries: “a bruise near the upper edge of the right shoulder blade measuring 4.5 by 4 cm ...[;] similar bruises on the rear surface of the chest at the level of the sixth to ninth ribs measuring 10 by 8 cm and on the rear surface of the chest at the level of the tenth to eleventh ribs measuring 8 by 6.5 cm; [bruises] near the sixth to eighth vertebrae measuring 8 by 1.5 cm”. The expert concluded that the bruises resulted from the impact of blunt solid objects, possibly at the time and in the circumstances indicated by the applicant. 14. On 16 February 2007 the prosecutor’s office discontinued the criminal investigation against the applicant on the charge of illegally possessing a grenade and advised him of his right to “rehabilitation”. The prosecutor found as follows: “The investigative actions were conducted in violation of [the rules of criminal procedure] and the proceedings should be discontinued in view of the following: The case file contains no information as regards the reasons for the [applicant’s] arrest; [The applicant] was not searched at the place of his arrest ...; instead, the search was carried out at [the police station]; In contravention of [the rules of criminal procedure], ... the taking of the [applicant’s] fingerprints was not documented ... ; The case file contains no evidentiary material as regards the examination of the grenade or the detection and recovery of the fingerprints; accordingly the findings set out in the forensic dactyloscopic expert report must be regarded as inadmissible evidence ... .” 15. On 19 February 2007 the deputy municipal prosecutor opened a criminal investigation into the applicant’s unlawful arrest and detention at the police station. On 1 March 2007 the applicant was given victim status in respect of the crime and questioned as to the events of 10 January 2007. 16. The criminal investigation into the applicant’s allegations about his illtreatment in police custody was discontinued on several occasions. The decisions in this regard were taken on 19 April, 23 May and 20 November 2007, and 29 June 2012. 17. On 24 December 2014 the decision of 29 June 2012 was quashed and the case was re-opened. The acting head of the regional investigative committee held that the earlier investigation had been perfunctory and ordered further investigation. 18. On 12 January 2015 the deputy regional prosecutor studied the evidence in the applicant’s case file and identified the following defects in the investigation: (1) the investigating authorities had failed to complete all the necessary actions in order to clarify the facts in connection with the alleged ill-treatment; (2) no findings had been made as regards the existence of the applicant’s injuries; (3) the contradictions in the statements made by the forensic medical expert and the applicant had not been reconciled; (4) the investigating authorities had failed to question the forensic medical expert and the forensic expert who conducted a dactyloscopic examination; (5) the investigating authorities had failed to establish whether the police had conducted an internal inquiry in response to the applicant’s allegations of ill-treatment; (6) the investigating authorities had not conducted a faceto-face confrontation between the police officers and the applicant in order to reconcile the contradictions in their statements; (7) the investigating authorities had failed to identify the persons who had been present at the police station when the applicant was searched. 19. It appears that the criminal investigation is still ongoing at the present time. 20. According to the Government, on 19 March 2009 the Primorskiy District Court of Novorossyisk found the applicant guilty of robbery and sentenced him to two and a half years’ imprisonment. On 8 November 2011 the applicant was released on parole.