CASE OF SOROKINS AND SOROKINA v. LATVIA
Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)
David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Paul Mahoney
5. The first applicant, Mr Aleksandrs Sorokins, and the second applicant, Mrs Marija Sorokina, are both Latvian nationals who were born in 1971 and 1939 respectively and live in Rīga. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 20 June 1997 at 1.20 a.m. the State police in Rīga received a call from a private individual who informed them that thieves had broken into his neighbours’ flat. According to reports drawn up the same day by three police officers, a patrol team arrived at the address given ten minutes later. They saw a man (the first applicant) running away. They apprehended him and found various items on him, which, it was discovered later, belonged to the owner of the flat. According to a report drawn up the same day by police officer A.E., who had attended the arrest of the first applicant, when apprehended the latter bore no visible injuries. 8. Questioned on the same day, a neighbour, M.S., stated that she had seen the first applicant attempting to escape when the police arrived. 9. Following his arrest the first applicant was taken to Rīga Main police station (Rīgas Galvenā Policijas pārvalde). At 6.30 a.m. the applicant’s arrest record was drawn up. On the same day, from 11 a.m. to 11.35 a.m., the first applicant was interviewed and denied any wrongdoing. 10. He was repeatedly questioned the same day, from 4 p.m. to 5 p.m., and confessed to the crime, which he said he had committed with two acquaintances. He stated that he had been in the back yard of the building when one of his acquaintances had given him a bag containing the stolen items which the police later discovered on him. 11. On the same day (at an unknown time) the first applicant, who was represented by a lawyer, was brought before a judge of the Rīga City Centre District Court and remanded in custody. 12. On 25 June 1997 the first applicant was taken to the Central Prison. 13. On 27 June 1997 investigators questioned the two individuals identified by the applicant, as well as another suspect, J.V. The latter confessed to having committed the theft together with the first applicant. 14. On 30 June 1997 the prosecutor informed the first applicant at the Central Prison that he was being charged with large-scale theft. The applicant confirmed in writing that he had no objections or comments to make. Interviewed by the prosecutor on the same day, the first applicant denied his guilt and asked for the questioning to be postponed because he felt ill. 15. The first applicant was repeatedly questioned by the prosecutor on 7 July 1997, and confessed to committing the crime, which he said he had committed with J.V. According to the record of the interview, the applicant stated that his earlier statements were false as far as the two acquaintances were concerned (see paragraph 10 above) because “he had been subjected to duress at the police station”. On the same day J.V. refused to provide a statement. 16. On the same day the co-accused, J.V., alleged that his earlier statement had been given as a result of physical force used by the police. On 8 July 1997 he lodged a complaint in this respect, which was forwarded to the State police for examination. On 26 September 1997 the State police refused to institute criminal proceedings in relation to the alleged ill-treatment of J.V. 17. On 20 August 1997 final charges were brought against the first applicant and the co-accused, J.V. The first applicant refused the assistance of a lawyer. On being questioned by the prosecutor, he maintained the statements he had given on 7 July 1997. 18. On 10 September 1997 the Rīga City Centre District Court decided to commit the applicant and his co-defendant for trial and to maintain their remand in custody. The first hearing was scheduled for 5 March 1998. 19. The first hearing was rescheduled for September 1998 because the judge was involved in other proceedings. The hearing was subsequently postponed until December 1998 because the co-defendant requested the assistance of defence counsel. The December hearing was rescheduled for February 1999 due to the absence of witnesses and the victim. 20. From 26 February to 1 March 1999 the Rīga City Centre District Court held a hearing. The first applicant asked the court to request a medical certificate attesting to his physical condition following the questioning during which he had confessed to the crime. The co-accused requested the court to call the doctor who had treated him after he was questioned at the police station. The court left both requests open pending termination of the court investigation, and remitted the criminal case to the Rīga Centre District Prosecutor’s Office for additional pre-trial investigation. 21. Following an appeal by the prosecutor, in June 1999 the Rīga Regional Court revoked the decision and referred the criminal case back to the lower court for adjudication on the merits. The first applicant submitted an ancillary complaint to the Supreme Court in which he stated, inter alia, that during the pre-trial investigation he had been subjected to physical ill-treatment. On 31 August 1999 the Senate decided to leave the complaint unexamined, on the ground that the impugned decision was not subject to an appeal. 22. In February 2000 the prosecutor asked the Rīga Centre District Court to transfer the criminal case to the Rīga Regional Court which, according to the prosecution, had jurisdiction in the case. The Rīga Regional Court refused the request, and in April 2000 the case was sent back to the district court. At the regional court’s request the Supreme Court ruled in June 2000 that the criminal case was to be tried by the Rīga Centre District Court. 23. The hearing scheduled for 14 November 2000 was postponed as witnesses and the victim failed to appear. 24. From August 2001 to March 2002 the hearing was postponed due to the co-defendant’s illness. 25. On 27 March 2002 the Rīga City Centre District Court, after obtaining the first applicant’s approval for the case to be examined in the absence of witnesses, began hearing the case. During the hearing the first applicant pleaded not guilty and alleged that he did not know J.V. and that he had provided incriminating statements only to avoid being physically ill-treated. 26. On 2 April 2002 the Rīga City Centre District Court found the first applicant guilty, and sentenced him to four years and nine months’ imprisonment. The first applicant had already served this term in pre-trial detention and was immediately released. His co-defendant was acquitted for lack of evidence. The court gave weight to the facts that the first applicant had never denied that he had the stolen items on him when he was arrested, and that this had been confirmed by witnesses’ statements. Preferring to give credence to the statements the applicant had made during the pre-trial investigation, the court noted that the case file disclosed no evidence to support the allegations that during his questioning the first applicant had been ill-treated by police officers. Moreover, the first applicant had not raised any complaints in this regard. 27. The court also relied on the fact that during the pre-trial investigation the first applicant had twice confessed to the prosecutor that he had committed the offence. It noted that the first applicant had never complained about the activities of the prosecutor. 28. In his appeal the first applicant pleaded that the statements made during the pre-trial investigation had been obtained as a result of his ill-treatment by police officers. 29. The appellate hearing scheduled for 6 August 2003 was postponed as the first applicant asked for witnesses to be summoned on his behalf. 30. On 18 December 2003 the lower court’s decision was upheld by the Rīga Regional Court. According to the transcript of the hearing, police officer A.E. stated that he did not remember either the first applicant or his arrest. On cross-examination by the first applicant, A.E. confirmed that force had been used to apprehend the first applicant. A defence witness, A.B., testified that she had seen police officers beating the first applicant on 20 June 1997. The prosecutor in response raised doubts as to whether the first applicant had been arrested in the circumstances alleged. 31. In the judgment the appellate court referred to the lower court’s reasoning and stated in particular: “... The case file bears no evidence that during the pre-trial investigation [the first applicant] had been ill-treated by police officers; moreover [the first applicant] had confessed [to the crime] being questioned twice by the prosecutor, and [the first applicant] had never complained about ill-treatment by members of the prosecutor’s office”. It further observed that the first applicant’s guilt had been attested to by a considerable amount of other evidence, such as witness statements and material evidence. It also noted that self-incriminating statements or denial of guilt could not serve as the only grounds to establish or refute guilt. The court further recognised that the first applicant’s pre-trial statements in relation to J.V. had been of a confusing nature and could not be used as proof of the guilt of his co-accused. 32. In his appeal on points of law the first applicant reiterated that his confession to the police officers had been obtained as a result of police ill-treatment. He also noted that he had not lodged an official complaint because of fear of retaliation by the police. On 12 March 2004 the Senate of the Supreme Court, in a preparatory session, dismissed his appeal without examining it on the merits. The Senate remarked that the internal investigation of the alleged ill-treatment did not find that the applicant had been beaten up by police officers. 33. It appears from the materials in the criminal file that on 12 November 1998 the first applicant asked the lower court to lift the detention order and stated that his confession to the offence had been obtained under duress. On 7 December 1998 the second applicant asked the lower court to release her son and stated, inter alia, in general terms that her son’s confession had been obtained by ill-treatment. On 9 October 2000 the first applicant asked the judge of the lower court to request information about his state of health when he was admitted to the Central Prison and testified before the prosecutor. 34. On 14 March 2001 the second applicant, in a representation to the President of the Republic, asked the authorities to investigate the ill-treatment to which the first applicant had been subjected on 20 June 1997. She stated that when she had first seen her son in prison he had been severely beaten and had lost a front tooth; his clothes were covered in blood. The lapse of time between the alleged ill-treatment and the complaint was explained by the first applicant’s fear that he would be the victim of reprisals while in prison. 35. At the request of the head of the State police inquiry department (Valsts policijas izziņas pārvalde) for information on whether the criminal file contained information revealing the unauthorised use of force against the first applicant, the judge of the lower court reported in May 2001 that no such information could be found in the criminal file. 36. The complaint was forwarded to the State Police which, on 25 June 2001, refused to institute criminal proceedings. The decision, drawn up by investigator Z.T., stated: [6.] Under questioning ... [the first applicant] explained that ... [a]t the arrest the police officers had knocked him to the ground, kicked him and hit him with truncheons, as a result of which he had lost consciousness. He regained consciousness only in the police car ... During the interrogation he had been subjected not only to physical ill-treatment but he also received threats and psychological intimidation. During the interrogation many police officers participated in beating and kicking him, for an extended period of time, on the body and head ... In addition, a plastic bag was put over his head, so that [the first applicant] could not breathe. In his statement [the first applicant] alleged that he had been ill-treated by many police officers, but that he could not remember or identify any of them. [7.] In addition, in his statement [the first applicant] alleged that he had repeatedly complained to the prosecutor’s office about police ill-treatment, which contradicts the information [received] from the Rīga Centre District Court [according to which] there is nothing to indicate ... that during the pre-trial investigation [the first applicant] had been subjected to ill-treatment by police officers or the prosecutor. [8.] When taken into the temporary detention unit of the Rīga Main police station no injuries were identified on the [first applicant], and he did not make any complaint, either about his health or about the behaviour of the police officers. [9.] [The first applicant] asked for medical assistance only on 26 June 1997 in the Central Prison: he was examined and bodily injuries were recorded; on this basis on 4 June [2001] a forensic medical examination was carried out. It appears from the report of [the forensic medical examination] that [the first applicant] had sustained the following bodily injuries: contusion on the right knee joint; contusion on the back with haematoma; bruises on both arms (the number, localisation and characteristics of the bruises not described), which were considered to be minor bodily injuries causing only short-term health problems of no more than six days. It was impossible to establish the exact time the injuries had been sustained, but it could not be excluded that the injuries could have been inflicted on 20 June 1997. [10.] [The police officer] A.S. stated that ... he had taken part in the arrest of [the first applicant]. He had not observed any visible bodily injuries on [the first applicant], and he could not remember the first applicant complaining of health problems or about the activities of the police officers. If the first applicant had raised any complaint about his health he would have been transferred to a medical establishment. [11.] Accordingly ... it can be concluded that during the preliminary review of the complaint no objective confirmation was obtained as to the allegations that on 20 June 1997 ... police officers had intentionally inflicted bodily injuries on [the first applicant], as [the latter] complained about health problems only on 26 June, whereas he was apprehended and questioned on 20 June”. 37. The Chancellery of the President and the Prosecutor General’s Office were informed of the decision taken, and a copy of the decision was sent to the second applicant. 38. Following the second applicant’s complaint of 26 January 2004, addressed to the President of the Republic, on 31 March 2004 a superior prosecutor of the Prosecutor General’s Office revoked the impugned decision and sent the case for additional investigation to the State police (Valsts policijas Galvenās Kriminālpolicijas pārvades Pirmstiesas izmeklēšanas pārvalde) on the ground that not all the facts and circumstances had been established when deciding whether to institute criminal proceedings in connection with allegations of ill-treatment. It appears that the prosecutor had issued specific instructions to the investigators. 39. On 8 May 2004, after obtaining statements from three other police officers who had taken part in the arrest of the first applicant, the investigator Z.T. established that the police officers had used force in accordance with section 13 of the Police Act, in that the first applicant had not complied with the officers’ requests and had attempted to escape. The decision stated: [the former police officer] AE stated that he had apprehended [the first applicant] and since the latter ... had attempted to flee, he had caught [the first applicant] and knocked him down, and that as a result they had both fallen down. As the first applicant did not resist, there was no need to apply other means of force. ... [A witness] A.B. testified that she had seen the first applicant being apprehended from her window, and that many police officers had spent a long time beating [the first applicant] with truncheons and kicking him ... ... [T]here are grounds to conclude that the assertions in A.B.’s statements contradict the report of bodily injuries in the forensic expert’s report [of 2001] ... and therefore there are grounds to call into question A.B.’s statement that there had been prolonged beating [of the first applicant] ... in that the bodily injuries of [the first applicant] did not correspond to the [above] description. ... [T]here are grounds to conclude that on 20 June 1997, when [the first applicant] was apprehended, the police officers acted in accordance with section 13 of the Law on Police, and the minor bodily injuries could have been inflicted while he was being apprehended, for, as noted by the police officers, [the first applicant] did not comply with their request, and attempted to escape.” 40. The decision was sent to the supervising prosecutor of the Prosecutor General’s Office and to the second applicant. 41. On 18 June 2004 the decision was upheld by a prosecutor attached to the Office of the Prosecutor General. The prosecutor stated that in the course of an additional inquiry no further evidence substantiating the allegations was identified. The decision also noted that, considering the time that had passed since the alleged events, it was practically impossible to obtain new information which could confirm or deny the applicants’ version of the events. The decision was subject to appeal to the Prosecutor General. 42. According to a medical report drawn up by the medical unit of the Central Prison, on 26 June 1997 the first applicant had complained of pain in the right knee joint and when urinating. He was diagnosed as having haematomas on his back (measuring 10 cm x 15 cm), on both arms (from 1 cm x 3 cm to 5 x 5 cm) and bruises on both arms (0.3 cm x 8 cm). According to the medical records of 3 July 1997 the applicant’s left knee was tender and painful and he was diagnosed as having a urinary infection and bruises on his body. The medical records also stated that according to the applicant “he had been beaten up when being arrested”. 43 Following the first applicant’s complaint of ill-treatment, on 14 June 2001 a forensic medical expert assessment was carried out, which concluded that the bodily injuries (an unspecified number and type of bruises on the left knee, arms and back) were minor and would not cause health problems for more than six days. The expert report could not determine the exact time the injuries had been inflicted on the first applicant, but it did not rule out the possibility that they had been inflicted on 20 June 1997. 44. According to the information provided by the Government, where a person showed signs of bodily injuries he had to undergo a medical examination before being admitted to a police temporary detention unit. However, the five-year period for the keeping of such documents had expired, and so that information as regards the first applicant was no longer available. 45. Under section 10, the basic duties of police officers include the conducting of investigations and necessary searches and other measures prescribed by the law in order to shed light on criminal offences and to identify their perpetrators. 46. Section 10 provides a list of situations in which police officers are allowed to use physical force, such as when arresting and conveying individuals to police stations, as well as when restraining arrested, detained and convicted persons if they do not comply or if they resist police officers, or if there is reason to believe that they may escape or harm others or themselves; 47. Section 27 states that a police officer shall be liable for any unlawful action in accordance with the procedure specified by law. If a police officer has violated an individual’s rights and lawful interests, the police authorities shall take measures to redress the violation and award compensation for damage caused. It also states that a police officer must not carry out or support any activity related to torture or other cruel, inhuman or degrading punishment. No police officer may cite an order from a superior, or exceptional circumstances such as a state or threat of war, a threat to national security, internal political instability of the State or a state of emergency, to justify torture or other cruel, inhuman or degrading treatment or punishment. According to paragraph six (the wording in force until 10 May 2005), the head of the police station reviews and decides on complaints about the actions of a police officer under his command. Such decisions are subject to appeal within one month to a higher-level institution. 48. Pursuant to sections 38 and 39, the functioning of the police shall be under the control of the Cabinet of Ministers, the Minister for the Interior and local municipalities, within the scope of their competence. The lawfulness of police operations is supervised by the Prosecutor General and subordinate prosecutors. 49. Section 3 provides, inter alia, that courts and public prosecutors are obliged to initiate criminal proceedings if indications have been discovered that an offence has been committed. 50. Section 41 provides that a public prosecutor performs supervisory functions, inter alia, by revoking unlawful and unreasoned decisions of the police, and other public prosecutors in subordinate positions, concerning criminal cases. 51. Pursuant to sections 19 and 51, only evidence obtained, proved and assessed in accordance with this code may be used in determination of a case, and courts must freely and objectively assess the evidence and reach their own conclusions which are based on a full, complete and objective assessment of all the materials of the case and in accordance with law and justice. No evidence has any predetermined weight which would bind the court. 52. Section 97 provides that defence counsel in a criminal case has the right to meet a suspect, an accused, or a defendant in private; to submit evidence; to lodge objections and submit requests; to participate in the questioning of a suspect and the charging and questioning of an accused, as well as in other investigative actions following a request raised by the suspect, accused or defence counsel; to participate in adjudication of a case; and to lodge complaints against decisions adopted by the entity in charge of an investigation, a prosecutor or a court. 53. By virtue of section 151 a prosecutor shall question the accused without delay following the bringing of charges. If immediate questioning is impossible, a record shall be drawn up explaining the reasons for the delay. 54. Section 220 sets out a procedure for lodging complaints against the activities of investigators, under which a suspect, accused persons and their representatives and defence counsel may submit a complaint to a prosecutor about the activities of investigators and others. Complaints shall be submitted directly to a prosecutor or to the person whose activities are the subject of the complaint. Complaints may be either written or oral. In the latter case the complaint shall be recorded by a prosecutor or an investigator and that record shall be signed by the complainant. An investigator shall forward the complaint, together with explanations, to a prosecutor within twenty-four hours. Pursuant to section 221, a prosecutor shall decide on a complaint within three days following the date of reception and shall notify the complainant of the outcome. If a complaint is rejected the prosecutor shall notify the complainant of the reasons. An investigator or the complainant may appeal against the prosecutor’s decision to a higher-level prosecutor. 55. Section 222 stated that complaints about a prosecutor’s activities are to be submitted to a prosecutor at a higher level, and are to be decided on in accordance with the procedures provided by sections 220 and 221. 56. Under section 449, a judgment can be examined by the cassation court only if it is vitiated by a material infringement either of criminal law or the law of criminal procedure. Section 451 states, inter alia, that breaches of the provisions of the Code of Criminal Procedure, which, inter alia, affected or could have affected the lawfulness, reasoning and fairness of a judgment, are serious infringements of the Code of Criminal Procedure. 57. In accordance with section 15, a prosecutor shall supervise the execution of custodial sentences and the institutions in which individuals are detained as a result. Furthermore, section 16 provides that a prosecutor shall, in accordance with the procedures prescribed by law, carry out an investigation if the information received concerns a crime or a violation of the rights and lawful interests of, inter alia, detainees. Paragraph 2 states that a prosecutor has the duty to take measures required for the protection of rights and lawful interests of persons and the State, if the examination of the facts regarding the violation of law is assigned by, inter alia, the President of the Republic. According to section 17, when examining an application in accordance with the law, a prosecutor has the right: to request and to receive regulatory enactments, documents and other information from administrative authorities ... to order heads and other officials of ... institutions and organisations to carry out examinations, audits and expert examinations and to submit opinions, as well as to provide the assistance of specialists in examinations carried out by the prosecutor; to summon a person and to receive from him/her explanations as to breaches of the law ... When taking a decision on a breach of law, the prosecutor, depending on the nature of the breach, has the duty ... to bring an action to the court, to initiate a criminal investigation or to initiate [proceedings on] administrative or disciplinary liability. By virtue of section 20, if it is necessary to bring an illegal activity to a halt, to rectify the consequences of such activity or to prevent a violation, a prosecutor shall submit a submission in writing to the relevant undertaking, authority, organisation, official, or person.