CASE OF ANTIPENKOV v. RUSSIA
Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Non-pecuniary damage - award
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
6. The applicant was born in 1980 and lived until his arrest in the town of Dyatkovo in the Bryansk Region. He is serving his sentence in the correctional colony in the village of Kamenka in the Bryansk Region. 7. On 14 December 2002 the police arrested the applicant and brought him to the Dyatkovskiy District police station. 8. On the same day a police officer, I., who had taken part in the applicant's arrest, drew up a report, informing the chief of the Dyatkovskiy District police station that a man had approached him and his fellow officers in a street, complaining that he had been beaten up and robbed. The applicant had passed by and the victim had identified him as the robber. The applicant had tried to escape but he had been apprehended and taken to the police station. The report did not indicate whether force or special means had been used during the arrest. 9. The applicant lodged a complaint with the Dyatkovo Town Prosecutor's office, seeking institution of criminal proceedings against the arresting police officers. In particular, he alleged that the police officers had unlawfully applied force against him during the arrest. 10. On 30 December 2002 a deputy Dyatkovo Town Prosecutor issued a decision, finding that there was no case to answer and dismissing the applicant's complaint. The decision stated that on 14 December 2002, after the applicant had committed the robbery, police officers had stopped him in a street and had ordered him to get into a police car. The applicant had refused, had punched police officer Ka. in the face and had attempted to escape, threatening the officers with a knife. Police officer I. had hit the applicant with a rubber truncheon on the arm, forcing him to drop the knife. Subsequently, the police officers had forced the applicant into the car. The deputy prosecutor concluded that there had been no indication of a criminal offence in the police officers' actions. The applicant was served with a copy of that decision. 11. According to the applicant, after being taken to the Dyatkovskiy District police station on 14 December 2002, he had been placed in a cell. An assistant police officer on duty, P., had approached the applicant and hit him with a rubber truncheon approximately ten times on the left side of the body and once in the face. An officer on duty, S., had entered the cell and had started beating the applicant as well. The beatings had continued for an hour and a half. The applicant had subsequently been placed in the detention facility of the Dyatkovskiy District Police Department. 12. The Government, relying on the information provided by the Prosecutor General's office, submitted that on 14 December 2002 the applicant had been taken in a state of alcoholic intoxication to the duty unit of the Dyatkovskiy District police station. After being placed in a cell for administrative detainees, he had started kicking the door, using obscene language and ignoring the police officers' orders to stop the unlawful behaviour. Police officer P. had entered the cell and hit the applicant a number of times in the back with a rubber truncheon. After officer P. had left, the applicant had stripped to the waist and started pushing the door. The police officers, using force, had transferred him to another cell. While he was being escorted to the new cell and was passing the desk of an officer on duty, the applicant had started spitting on the desk communication board. Officer P. had thus been forced to hit the applicant with a rubber truncheon. In the new cell the applicant had continued kicking the door. The police officers had had no choice but to handcuff the applicant to a metal bar, so he could not reach the door. Shortly after, when the applicant had calmed down, the handcuffs had been removed. No force had been applied against the applicant after that incident. 13. On 15 December 2002, on admission to the detention facility of the Dyatkovskiy District Police Department, an officer on duty examined the applicant and drew up a report, recording the following injuries on his body: bruises on the chest, numerous injuries on the back, bruises on the left hip and buttock, injuries on the forehead, face and left cheek. As shown by the documents presented by the parties, on 16 December 2002 an emergency doctor was called to attend to the applicant in response to his complaints about severe pain in the jaw and chest. The doctor examined the applicant, noted his injuries and, suspecting that he could have had a rib fracture, recommended an examination by a traumatologist. 14. Five days later the applicant complained to the head of the detention facility about the beatings in the police station and sought the institution of criminal proceedings against the police officers. 15. On 20 December 2002 the applicant was examined in the medical division of the Dyatkovskiy District Police Department and a report was drawn up. According to the report, he had a hypodermic injury on the left side of the chest. The injury measured 15 centimetres in length and 5 centimetres in width and resulted from a blow by a rubber truncheon. 16. Ten days later the applicant, being diagnosed with encephalomyelopolyneurotis, was admitted to the hospital of the Dyatkovskiy District Police Department where he stayed until his transfer, on 22 January 2003, to Bryansk prison hospital no. OB-21/2. He remained in that hospital until 4 February 2003 with a diagnosis of “consequences of neuritis of the left fibular nerve”. 17. In the meantime the applicant lodged a complaint with the Dyatkovo Town Prosecutor, describing the beatings in the police station on 14 December 2002 and asking for an investigation into the incident. 18. On 23 January 2003 a deputy Dyatkovo Town Prosecutor refused to institute criminal proceedings against police officers P. and S., finding that their actions, in a situation where the applicant had behaved in an unruly manner, had been lawful and proportionate. 19. On 4 April 2003 a deputy Bryansk Regional Prosecutor annulled the decision of 23 January 2003 and authorised a re-examination of the applicant's ill-treatment complaints. The relevant part of the decision read as follows: “The decision [of 23 January 2003] was manifestly ill-founded and premature, as the investigation had been incomplete; the circumstances in which the injuries to [the applicant] had been caused were not fully examined; [the applicant] was not questioned and [he] did not undergo an examination by a medical expert; administrative and criminal arrestees detained in [the police station] were not questioned about the events; the traffic police officers who had brought [the applicant] to the [police station] were not questioned; therefore [the decision] should be annulled.” The deputy prosecutor also drew up a list of measures which should be taken in the course of the new round of the investigation, including a medical examination and questioning of the applicant, and the establishment and questioning of possible eyewitnesses among those persons who had been detained with the applicant. 20. On 14 April 2003 a deputy Dyatkovo Town Prosecutor, in a decision worded identically to the one issued on 23 January 2003, once again refused to institute criminal proceedings against officers S. and P., confirming the lawfulness of their actions. 21. On 6 August 2003 the Bryansk Regional Prosecutor informed the applicant that the decision of 14 April 2003 had been quashed, that an additional investigation into his complaints was to be conducted and that the case file had been sent back to the Dyatkovo Town Prosecutor's office. When quashing the decision of 14 April 2003, the Bryansk Regional Prosecutor's office repeated the list of investigative steps to be taken. 22. On 22 August 2003 an assistant Dyatkovo Town Prosecutor dismissed the applicant's complaints against police officers S. and P., finding no case of ill-treatment. The decision of 22 August 2003 was similar in its wording to those issued on 23 January and 14 April 2003. 23. In October 2003 a neuropathologist examined the applicant and diagnosed him with asthenovegetative syndrome related to a head injury. 24. On 21 October 2003 the Dyatkovo Town Prosecutor annulled the decision of 22 August 2003, finding that the investigation had been incomplete. A new round of investigation was authorised. 25. Three days later, on 24 October 2003, an investigator of the Dyatkovo Town Prosecutor's office once again dismissed the applicant's complaint, repeating the findings made in the decision of 22 August 2003. In addition, the investigator recounted statements made by the applicant, by an investigator who had interviewed him on 14 December 2002, by a doctor who had examined the applicant on 16 December 2002, by two persons who had been detained with the applicant on 14 December 2002, and by the victim whom the applicant had robbed. The applicant had maintained his complaints. The investigator had testified that he had not seen any injuries on the applicant and that the latter had not made any complaints. The doctor had stated that she had been called to attend to the applicant who had complained about pain in the jaw and on the left side of the chest. She had examined the applicant and recorded injuries on the chest and lower jaw. She had presumed that the applicant had had a rib fracture. She had indicated that the applicant had to be examined by a traumatologist. The inmates had testified that the applicant had been placed in their cell in the second half of the day on 14 December 2002. He had shown them injuries on his back and complained that he had been beaten up by the police officers. The victim had testified that he had not seen any injuries on the applicant's body on the day of the robbery. The investigator concluded that officers S. and P. had acted in full compliance with requirements of Articles 13 and 14 of the Police Act. 26. On 19 May 2004 the Dyatkovo Town Court, acting on the applicant's appeal against the decision of 24 October 2003, confirmed the findings made by the investigator. The Town Court noted that the officers' actions had been beyond reproach, the lawfulness and proportionality of their actions being manifest. 27. On 23 July 2004 the Bryansk Regional Court quashed the decision of 19 May 2004 and remitted the case for re-examination to the Town Court. The Regional Court held, in particular, as follows: “At the same time it is impossible to conclude that the decision of the investigator refusing institution of criminal proceedings was lawful and well-founded, taking into account the following considerations. As shown by the material from investigation no. 1-13 opened upon the [applicant's] complaint, the investigator's conclusions drawn up in the decision [of 24 incomplete. The fact of [the applicant's] arrest and [his] placement in the detention facility of the Dyatkovskiy District Police Department on 14 December 2002, at 7.20 p.m., was confirmed by an extract from the registration log of persons brought to the police department... According to an extract from the record of medical examinations of persons detained in the detention facility of the Dyatkovskiy District Police Department, on 15 December 2002, at the time of the placement, [the applicant] had injuries on the left and right sides of the body, the left and right buttocks, injuries on the forehead, the bridge of his nose, the left cheek, and numerous injuries on the back. As is apparent from the statements by [the victim of the robbery], on 14 December 2002, at about 7 p.m., [the applicant] had no visible injuries. The decision [of 24 October 2003] did not indicate whether it had been established that [the applicant] had been injured by officers of the police department during his arrest. Therefore, in the course of the investigation the investigator of the prosecutor's office did not establish the time, place, extent, or method and means of infliction of the injuries which [the applicant] had been found to have during his examination on 15 December 2002; the severity [of those injuries] was likewise not established. Accordingly, [the court] cannot regard as rightful and substantiated the investigator's finding that [the applicant] received injuries as a result of the two blows to his back made by Mr P. and by [the applicant's] knocking on the door and walls and by his being handcuffed. The investigator did not examine, and thus did not evaluate, the [applicant's] statements concerning the effect of the injuries which had led to his having obtained a leg disease... accordingly, [an investigator] did not check information concerning [the applicant's] stay in hospital; a diagnosis which had been pronounced at the end of the treatment; the severity of the damage caused to [the applicant's] health leading to the diagnosis; the existence of a causal link between the injuries which he had been found to have on 15 December 2002 and his illness. In the decision the investigator refers to statements by Mr K. and Mr G., from which it transpires that they were arrested and detained in cell no. 7, when on 14 December 2002 after dinner, [the applicant] was placed there, allegedly in a state of intoxication; [he had] injuries and explained that they had been caused by the police officers when he had offered resistance to the arresting officers. At the same time, as is apparent from the material in investigation file no. 1/13, on 14 December 2002, at 11.50 p.m., [the applicant] was placed in a cell where Mr Sh., Mr T., and Mr D. were being held. On 15 December 2002, at 4 p.m., [the applicant] was placed in cell no. 7 with Mr G. and Mr K. In these circumstances, the [Regional] Court considers that the conclusions of the [Town] Court about the lawfulness and rightfulness of the investigator's decision of 24 October 2003, concerning the refusal to institute criminal proceedings, do 28. On 4 November 2004 the Dyatkovo Town Court accepted the applicant's complaint and annulled the investigator's decision of 24 October 2003, endorsing the reasoning of the Regional Court. The decision of 4 November 2004 was upheld on appeal on 24 December 2004. 29. On 19 November 2004 the investigator of the Dyatkovo Town prosecutor's office refused to institute criminal proceedings against officers S. and P. The wording of that decision was similar to that of the decision of 24 October 2003, but with an additional paragraph which read as follows: “[The applicant] in his numerous complaints stated that, as a result of being beaten by the police officers, his legs had been paralysed; however, his statement is refuted by the conclusions of a forensic medical examination which had been performed [in compliance with the Town Court's decision of 4 November 2004] on the basis of [the applicant's] medical records from facilities nos. IZ-32/1 [detention facility of the Police Department] and OB-21/2...; on the basis of which it was established that the illnesses with which [the applicant] had been diagnosed in those facilities...do not have a pathogenetic causal link to his injuries and that [the illnesses] are independent diseases of a non-traumatic character. When [the applicant] asked for medical assistance on 15 December 2002, he had an injury on the forehead and the nose bridge, an injury on the left cheek-bone, bruises on the left and right sides of the chest, and bruises on the back and buttocks. Those injuries were caused by numerous applications of firm blunt objects to those parts [of the body], which could have been carried out by blows with those objects or by his being hurled against those objects. Those injuries, taken together or separately, caused 'slight' damage to the health ... During the examination and treatment of [the applicant], immediately after the injuries had been caused or in a subsequent period of time, [the investigation] did not establish any data which could have shown that [the applicant] had had a head injury, a rib fracture, a spinal injury or any other injuries of a traumatic character.” 30. On 1 December 2006 a deputy Bryansk Regional Prosecutor quashed the decision and authorised the Dyatkovo Town Prosecutor's office to open an additional investigation into the applicant's complaints. 31. According to the Government, three days later the Dyatkovo Town Prosecutor closed the investigation, finding no criminal conduct in the police officers' actions. The Government did not produce a copy of the decision of 4 December 2006. However, they submitted that officers S. and P. had been questioned and had confirmed the statements they had made during the previous rounds of the investigation. In particular, the officers had stressed that the use of rubber truncheons had been an adequate and proportionate response to the applicant's unlawful behaviour. The Government further noted that in his decision of 4 December 2006 the prosecutor had relied on the results of the applicant's medical examination of 4 November 2004. The examination had established that the applicant's illnesses had had no causal link to the injuries recorded on 15 December 2002. The prosecution authorities had also questioned four persons who had been detained together with the applicant on 14 and 15 December 2002. According to those individuals, the applicant had not complained about being beaten in the police station. 32. The Government further noted that the Prosecutor General's office of the Russian Federation had thoroughly studied the conclusions of the investigation conducted by the Dyatkovo Town prosecutor's office between 1 and 4 December 2006, and in the Government's view the investigation had been comprehensive. The applicant's injuries had been “caused as a result of his unlawful actions”. The Prosecutor General's office had conceded that officers S. and P. had not overstepped the boundaries of their professional responsibilities in applying force against the applicant. 33. On 29 May 2003 the Dyatkovo Town Court found the applicant guilty of robbery and assault and sentenced him to eight years and three months' imprisonment. On 11 July 2003 the Bryansk Regional Court, on appeal, reduced the sentence by one year. 34. The Code of Criminal Procedure of the Russian Federation (in force since 1 July 2002, “the CCrP”) establishes that a criminal investigation can be initiated by an investigator or a prosecutor on a complaint by an individual or on the investigative authorities' own initiative, where there are reasons to believe that a crime has been committed (Articles 146 and 147). A prosecutor is responsible for overall supervision of the investigation (Article 37). He can order specific investigative actions, transfer the case from one investigator to another or order an additional investigation. If there are no grounds to initiate a criminal investigation, the prosecutor or investigator issues a reasoned decision to that effect which has to be notified to the interested party. The decision is amenable to appeal to a higher-ranking prosecutor or to a court of general jurisdiction within a procedure established by Article 125 of the CCrP (Article 148). Article 125 of the CCrP 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. 35. Rubber truncheons may be used in the following cases: - to repel an attack on a staff member of a detention facility or on other persons; - to repress mass disorder or put an end to collective violations of the detention rules and regulations; - to put an end to a refusal to comply with lawful orders of facility administration and warders; - to release hostages and liberate buildings, rooms and vehicles taken over by a detainee; - to prevent an escape; - to prevent a detainee from hurting himself (section 45). 36. Police officers are only entitled to use physical force, special means and firearms in the cases and within the procedure established by the Police Act; staff members of police facilities designated for temporary detention of suspects and accused persons may only use such force and special means in cases and within the procedure established by the Custody Act (section 12). 37. Section 12 of the Police Act provides that a police officer resorting to physical force, special means or a firearm, should warn an individual that force/special means/firearms are to be used against him. In cases when a delay in the use of force, special means or firearms may endanger the life and health of civilians or police officers or cause other serious damage such a warning is not necessary. Police officers should ensure that damage caused by the use of force/special means/firearms is minimal and corresponds to the character and extent of the danger that an unlawful conduct and a perpetrator pose and the resistance that the perpetrator offers. Police officers should also ensure that individuals who have been injured as a result of the use of force/special means/firearms receive medical assistance. 38. By virtue of section 13 of the Police Act police officers may use physical force, including combat methods, to prevent criminal and administrative offences, to arrest individuals who have committed such offences, to overcome resistance to lawful orders, or if non-violent methods do not ensure compliance with responsibilities entrusted to the police. 39. Sections 14 and 15 of the Police Act lay down an exhaustive list of cases when special means, including rubber truncheons and handcuffs, and firearms may be used. In particular, rubber truncheons may be used to repel an attack on civilians or police officers, to overcome resistance offered to a police officer and to repress mass disorder and put an end to collective actions disrupting work of transport, means of communication and legal entities. Handcuffs may only be used to overcome resistance offered to a police officer, to arrest an individual caught when he is committing a criminal offence against life, health or property and if he is attempting to escape, and to bring arrestees to police stations, to transport and protect them if their behaviour allows the conclusion that they are liable to escape, cause damage to themselves or other individuals or offer resistance to police officers.