CASE OF IDALOV v. RUSSIA (No. 2)
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);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law;Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-1 - Procedure prescribed by law;Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Luis López Guerra;Pere Pastor Vilanova
4. The applicant was born in 1967 and lives in Lakha-Varanda, Chechen Republic. 5. On 11 July 2008 P. caused a traffic accident while driving and damaged the applicant’s car. According to P., the applicant threatened him, asking for cash for his car’s repair. 6. On 16 July 2008 P. reported the applicant to the regional police department for combatting organised crime. The police decided to run a special operation to arrest the applicant. They gave P. 2,000 United States dollars (USD) and 90,000 Russian roubles (RUB) in marked notes. At around noon several police officers arrived at a car market where P. worked. At about 5 p.m. the applicant entered P.’s office. P. met the applicant and gave him the money he had received from the police. Immediately thereafter, the policemen arrested the applicant. According to the police officers, the applicant resisted the arrest and they had to handcuff him. The applicant was then taken to the regional police department for combatting organised crime. At 5 p.m. the policemen searched the applicant and found heroin on him. Lay witnesses F. and R. were present during the search. The applicant alleged that it was the police officers who had planted the drug on him. 7. At 8 p.m. on 16 July 2008 police captain A. drew up an administrative arrest record, according to which the applicant had “failed to comply with the policemen’s legitimate request to present his identification document, resisted them and tried to abscond”. No legal assistance was made available to the applicant. 8. On 17 July 2008 at 12.45 p.m. investigator S. from the town police department opened a criminal investigation against the applicant on suspicion of illegal drug possession. At 6.20 p.m. she drew up a criminal arrest record. 9. On 18 July 2008 the Odintsovo Town Court authorised the applicant’s pre-trial detention. The court noted as follows: “As is apparent from the evidential material submitted, [the applicant] is suspected of having committed a serious offence and he has a prior criminal record. If released, he might abscond and interfere with [administration of justice]. ” 10. The applicant appealed, noting that he had been arrested by the police a day before the record of his arrest was prepared and that the Town Court had failed to take his fact into consideration. He also argued that the Town Court had ignored the fact that he had a permanent place of residence in Moscow, that he had been the sole provider for two minor children and his wife, that he was in the fourth year of study by correspondence at a higher educational establishment and that he had employment. Nor had the prosecutor furnished any evidence disclosing the applicant’s intent to abscond or to interfere with the administration of justice. Lastly, he noted that the arrest order did not indicate a time-limit for his detention. 11. On 5 August 2008 the Moscow Regional Court upheld the arrest order of 18 July 2008 on appeal. 12. On 15 September 2008 the Town Court extended the applicant’s detention until 17 November 2008. The court reasoned as follows: “As is apparent from the evidential material submitted, [the applicant] is charged with a serious offence and has a prior criminal record. Accordingly, if released, he might abscond and interfere with [administration of justice].” 13. On 12 November 2008 the Town Court extended the applicant’s detention until 31 December 2008. The court reasoned as follows: “Taking into account the fact that [the applicant] is charged with a serious offence which he committed whilst on parole, that he has a prior criminal record and that he might abscond, continue his criminal activities, and interfere with the administration of justice, it is necessary that [the applicant] remain in custody. ” 14. On 16 December 2008 the Town Court set the trial-date for 23 December 2008. The court also ordered that the applicant remain in custody pending examination of the case and noted as follows: “... According to the material submitted by the prosecutor, [the applicant] had been previously convicted. He is charged with a[n] ... offence classified as particularly serious ... . ... The court considers that, if released, [the applicant] might abscond. Furthermore, [the applicant’s] release might interfere with the comprehensive and objective examination of the evidence. Accordingly, the measure of restraint previously imposed on [the applicant] cannot be lifted.” 15. On 18 December 2008 the Town Court opened the trial. 16. On 22 May 2009 the Town Court extended the applicant’s detention until 8 September 2009 noting as follows: “Having heard the parties’ arguments, the court concludes that, in view of the fact that [the applicant] is charged with a ... grievous offence ... which he committed whilst on parole, the court considers that, if released, he might abscond or continue criminal activities. Furthermore, the [applicant’s] release might interfere with the comprehensive and objective examination of the case. Accordingly, ... the detention imposed on [the applicant] cannot be lifted.” 17. On 25 June 2009 the Town Court returned the case file to the prosecutor’s office for rectification of certain omissions and extended the applicant’s detention until 8 September 2009. The court referred to the gravity of the charges against the applicant and noted that the latter was charged with having committed a serious offence whilst released on parole. 18. On 16 July 2009 the Regional Court upheld the decision of 22 May 2009 on appeal. 19. On 23 July 2009 the Regional Court upheld the decision of 25 June 2009 on appeal. 20. On an unspecified date the prosecutor’s office returned the case file to the Town Court. 21. On 2 November 2009 the Town Court opened the trial. On the same date the applicant studied the material in the case file at the court-house. He tore several pages out of the case file and burnt them. 22. During the subsequent hearings the court heard evidence from a certain P., police officers And., Rom., Ak., Z., Shch., and T. − who had taken part in the applicant’s arrest − the head of the police unit Pl., lay witness R. − who had been present when the applicant was searched on 16 July 2008 − and forensic expert P., who had run a laboratory test on the heroin found on the applicant. 23. On 11 and 12 November and 2, 3, 4 and 8 December 2009 the applicant received repeated reprimands from the presiding judge for making threats and insulting persons present in the courtroom. The judge warned the applicant that he might be removed from the courtroom for continuing with such disruptive behaviour. 24. On 9 December 2009 the director of the company that provided the interpreters for the trial complained to the court that the applicant had threatened the interpreters who had earlier taken part in the proceedings. 25. On 16 December 2009 the applicant refused to leave the remand prison to attend a trial hearing. The hearing was adjourned. 26. On 17 December 2009 the court held the last trial hearing. The presiding judge confirmed the presence of the parties and witnesses. L., a police officer who had been in charge of the operation leading to the applicant’s arrest on 16 July 2008, appeared for questioning. The applicant insulted the witness. The presiding judge reprimanded the applicant and warned him that he would be removed from the courtroom if he persisted with his disruptive behaviour. The applicant started talking in Chechen. The interpreter refused to interpret and asked the court to relieve him of his duties. The presiding judge informed the parties that the interpreters who had earlier taken part in the proceedings had decided to refuse further engagement in view of the insults and threats made by the applicant. The applicant talked back to the judge in Chechen. The interpreter refused to interpret into Russian. The presiding judge again reprimanded the applicant and warned him about his possible removal from the courtroom. The presiding judge presented the report from the remand prison management stating that on 16 December 2009 the applicant had refused to be transported from the remand prison to the court-house for the hearing. The presiding judge asked the prosecution and defence whether it was possible, in the circumstances, to remove the applicant from the courtroom. The prosecutor did not object. The applicant stated that the presiding judge’s conduct clearly demonstrated that he was being pressurised by high-ranking law-enforcement officials to deliver an unlawful judgment in the applicant’s case and that his decision to remove the applicant from the courtroom would be unlawful and in contravention of the Convention. The court ruled as follows: “... the court decides to remove [the applicant] from the courtroom ... for the following reasons. [The applicant] has repeatedly been disruptive in the courtroom in the course of the trial, including the current hearing. In particular, ... while studying the material in the case file, [the applicant] destroyed five pages thereof. He repeatedly refused to appear in the courtroom referring to his needs to pray, eat, wash and go to the bathroom. On several occasions he refused to appear before the court alleging that he was ill. However, the emergency response doctors summoned did not confirm his allegation. He has insulted witnesses and other participants in the proceedings and shown disrespect for the judges participating in the trial by making negative comments about the judicial system in Russia. He claimed to know the home address of [a witness] and one of the judges. He has made statements and comments unrelated to the trial. During this hearing, [the applicant] insulted a witness ... . After [the applicant] said something in the Chechen language, the interpreter asked the court to [relieve him of his duties] ... . The head of the interpreters’ agency reported that [the applicant] spoke Chechen [in the courtroom] with the sole intention of insulting and threatening the interpreters.” 27. The trial continued in the applicant’s absence. The court questioned L., who, at the time, had been in charge of the special operation conducted in response to P.’s complaint about the applicant extorting money from him. The applicant’s lawyer was present and put questions to the witness. The court also established that witness F. had failed to appear and decided that the statement he had made earlier to the investigator should be read out. The court also read out statements made by witnesses Shch. and T. earlier during the trial as those witnesses had also failed to appear. Lastly, the court granted a request from the applicant’s lawyer and read out several earlier statements made by the applicant and several witnesses for the defence who had failed to appear. According to the record of the court hearing, the applicant refused to return to the courtroom to participate in the closing arguments. The judgment was read out in the applicant’s absence. 28. The Town Court found the applicant guilty as charged and sentenced him to four years’ imprisonment. The court based its findings on statements made by witnesses questioned by the investigator and the court, police reports and other material in the case file, and forensic evidence. The court accepted the prosecution’s version of events, namely that the applicant had been arrested by special police forces in the course of an operation targeting him as a racketeer as alleged by P. and that heroin had been found on him during the search conducted immediately after his arrest. 29. On 13 April 2010 the Moscow Regional Court upheld the applicant’s conviction on appeal. 30. On 11 December 2013 the Presidium of the Moscow Regional Court reviewed the applicant’s conviction and reduced the applicant’s sentence to three years and two months’ imprisonment. 31. On 21 May 2009 the applicant was taken to the Odintsovo police station. According to applicant, at the station he was assaulted by three police officers. They throttled him and pulled his arms behind his back causing him enormous pain. 32. On 21 and 22 May 2009 the applicant was examined by a paramedic. According to the official report, the applicant complained about chronic stomach pain. 33. On 22 May 2009 the applicant’s lawyer complained to the police and the prosecutor’s office about the incident of 21 May 2009. 34. On 25 May 2009 the police completed an internal inquiry into the applicant’s allegations of ill-treatment. It was established that five police officers had had to subdue the applicant during a body search. They had pinned him to the ground and handcuffed him. 35. On 10 July 2009 investigator B. refused to institute criminal proceedings against the alleged perpetrators. On 31 August 2009 his superior quashed the said decision and remitted the matter for further inquiry. 36. On 9 September 2009 investigator D. dismissed the applicant’s complaint as unsubstantiated and refused to institute criminal proceedings against the police officers. Relying on the evidential material obtained in the course of the inquiry, he concluded that the police officers had acted in accordance with the law. It appears that the applicant did not appeal against the decision of 9 September 2009. 37. Following communication of the application to the Government, on 4 February 2014 the Acting Head of the Investigative Committee of Odintsovo Town quashed the decision of 9 September 2009 and remitted the matter for further inquiry. The parties did not disclose the outcome of the proceedings. 38. On 25 September 2009, remand prison director M. ordered the applicant’s placement in a disciplinary cell. 39. According to the applicant, on their way to the disciplinary cell M. repeatedly hit the applicant against the wall, administering blows to his head and body. The applicant’s nose and lips began to bleed. Then the guards handcuffed the applicant and continued beating him. 40. According to the Government, the applicant refused to enter the disciplinary cell. Instead, he threw a punch at M.’s face and M. hit his head against the wall. M. tried to subdue the applicant by pulling his right arm behind his back. The applicant resisted and kicked M. Guard N. came to M.’s rescue and pulled the applicant’s arm behind his back. The applicant fell to the floor and his nose bled. The guards handcuffed the applicant and took him to a cell where he calmed down. The guards called an ambulance. 41. On the same date the prison director and the guards reported the use of force against the applicant. According to the reports, M. pulled the applicant’s right arm behind his back using a combat technique and guard K. handcuffed the applicant to put an end to his resistance. 42. On an unspecified date the applicant underwent a medical examination. According to the medical report the applicant had sustained the following injuries: bruises on the right forearm and shoulder, left shoulder, left armpit and left calf; a bruised wound on the lower lip. 43. On 6 October 2009 the applicant complained that he had been beaten up by M. On 15 October 2009 investigator Mar. dismissed the applicant’s allegations as unsubstantiated and refused to institute criminal proceedings against M. 44. On 12 October 2009 a medical forensic expert examined the applicant and his medical case history. The expert concluded that the applicant’s injuries could have resulted from impact by blunt and solid objects and that the applicant might have sustained the injuries on 25 September 2009 as a result of blows or a fall. The expert concluded that the injuries were not serious and had not caused any harm to the applicant’s health. 45. On 22 October 2009 the expert issued an additional forensic report, noting that it was impossible to determine the exact date on which the applicant had sustained the injuries. It could have been on 25 September 2009 or some time before or after that date. 46. On 7 October 2009 the prosecutor’s office opened a criminal investigation into the incident of 25 September 2009. The applicant was charged with the use of force against a State agent. 47. On an unspecified date the Town Court received the file and opened the trial. During the trial, the applicant maintained his innocence. He claimed that the remand prison director and the guards had beaten him up on 25 September 2009 and he had then been prosecuted on trumped-up charges to cover up for the beatings. 48. On 16 December 2010 the Town Court found the applicant guilty as charged and sentenced him to six years’ imprisonment. The court dismissed the applicant’s version of events as unsubstantiated, relying on the prosecution and defence witnesses’ statements and forensic evidence. On 17 March 2011 the Regional Court upheld the applicant’s conviction on appeal. The court also re-calculated the applicant’s sentence. It took into account that the applicant had two previous convictions and sentenced him cumulatively to seven years’ imprisonment. 49. On 11 December 2013 the Presidium of the Regional Court reclassified the charges against the applicant by way of supervisory review, reduced his sentence to five years’ imprisonment and sentenced him cumulatively to five and a half years’ imprisonment. 50. On 29 October 2010 the applicant was detained in remand prison no. IZ77/4 in Moscow. According to the applicant, the prison guards beat him and nine other inmates. According to the Government, the applicant was inciting other inmates to disobey the guards. He also threatened the guards and insulted them. The guards used rubber truncheons and handcuffs to subdue the applicant. 51. On 3 November 2010 the applicant took part in a hearing at the Supreme Court of the Russian Federation by means of video link. The applicant demonstrated to the judges extensive bruising on his stomach, chest and lower back and claimed that he had been beaten up by guards of the remand prison. 52. On 9 November 2010 the Supreme Court informed the Moscow City Prosecutor of the applicant’s injuries and forwarded the applicant’s complaint about the beatings in the remand prison. 53. According to the Government, on 12 January 2014 an investigator completed the inquiry into the incident of 29 October 2010 and refused to institute criminal proceedings against the prison guards. On 27 January 2014 the district prosecutor quashed the decision of 12 January 2014 and remitted the matter for further inquiry. The Government did not disclose the outcome. 54. According to the applicant, on 24 June 2012 he was beaten up whilst in detention in correctional colony no. IK-19 in the Sverdlovsk Region. According to the Government, the applicant had an altercation with inmate Ur. As a result, the applicant sustained bruises and a bone fracture on the right side of the face and concussion. On an unspecified date the authorities instituted criminal proceedings against Ur. The parties did not disclose their outcome. 55. On an unspecified date the applicant was transferred to correctional colony no. IK-2 in Yekaterinburg. 56. According to the applicant, on 29 September 2012 some time after 10 p.m. a group of young and strongly-built men entered his cell and beat him up. They were led by inmate O. 57. According to the applicant, on 1 October 2012 a man wearing the uniform of a major and accompanied by several medical orderlies entered the applicant’s cell. The major started beating the applicant, who was lying on the bed. The major then told the orderlies to pull the applicant off the bed and continued the beatings, administering multiple blows to the applicant’s head and other parts of the body. 58. On 7 October 2012 the applicant was transferred to correctional colony no. IK-19 in the Sverdlovsk Region. Upon arrival, he underwent a medical examination. The medical practitioners recorded a wound on the applicant’s head and a bruise near the hip bone. The applicant explained that he had sustained the injuries as a result of the beatings to which he had been subjected in correctional colony no. IK-2. The management of correctional colony no. IK-19 forwarded the relevant report to the regional investigation committee but it was never received by them. According to the Government, the authorities’ inquiry into the loss of the report is still pending. 59. According to the Government, the inquiries into the incidents of 29 September and 1 October 2012 are still pending. 60. Between 17 July 2009 and 13 April 2011 the applicant was detained in identical conditions in the temporary detention centre in Odintsovo, in remand prison no. IZ50/1 in Mozhaysk and in remand prison no. IZ-77/4 in Moscow. The cells were overcrowded, dirty, poorly ventilated and insufficiently lit. The toilet offered no privacy. The use of a shower was limited. 61. From 22 November 2012 to 11 January 2013 the applicant was held in remand prison no. IZ-66/1 in Yekaterinburg. 62. On numerous occasions between 10 November 2008 and 17 December 2009 the applicant was held in the temporary detention centre in Odintsovo. According to the Government, the centre comprised fifteen cells measuring 184 sq. m in total. The centre had an outdoor area where the inmates were able to exercise. The inmates were able to take a shower at least once a week. They were provided with three meals per day and an individual sleeping place, bed linen, toiletries, a bowl, a mug and a spoon. 63. According to the applicant, at all times the cells in the temporary detention centre were overcrowded and the personal space available to the inmates fell short of the statutory minimum standard of 4 sq. m. The cells were dirty and there was no ventilation. The lighting was poor and insufficient for reading. The access to shower facilities was limited. The applicant received one meal a day. On the days of the court hearings, the applicant did not have any meals at all. 64. The applicant did not provide a description of the conditions in which he was detained in remand prisons nos. IZ-50/1 in Mozhaysk and IZ77/4 in Moscow, beyond alleging that they were identical to the conditions of his detention in the temporary detention centre in Odintsovo. 65. On 22 November 2012 the applicant was placed in cell no. 423 in remand prison no. IZ-66/1 in Yekaterinburg. The cell measured no more than 15 sq. m and was equipped with four beds. Between seven and nine inmates were held in the cell, together with the applicant. 66. From 29 November to 28 December 2012 the applicant was held in cell no. 240. The cell was constantly overcrowded and housed between eighteen and thirty inmates. 67. From 29 December 2012 to 11 January 2013 the applicant was held in cell no. 2. It measured 6.23 sq. m and housed two inmates. 68. According to the applicant, on the days of the court hearings and on the days when there was a change of the applicant’s place of detention, he was woken up early and placed in an overcrowded holding cell. He was then taken to the place of his destination (a court-house or a detention facility) in a prison van. On each occasion the number of the persons transported with the applicant exceeded the van’s capacity of 24 persons. The vans were dirty and unventilated and had no heating. The trip lasted several hours. The van compartments were stiflingly hot in the summer and very cold in the winter. 69. According to the Government, the applicant was transported in GAZ vans which comprised two compartments measuring 6.2 sq. m and 1.2 sq. m respectively, in strict compliance with the vans’ design capacity. The vans were equipped with ventilation and heating. The trips from the temporary detention centre in Odintsovo to the Odintsovo Town Court lasted no more than 5 to 10 minutes. The trips from the same detention centre to the courts in Moscow lasted no more than three hours. 70. According to the applicant, at the court-house he was placed in a holding cell measuring 5 sq. m together with two to four other inmates. He was held in such conditions for several hours awaiting the hearing. He was allowed to use the toilet only once. The cell was not ventilated. All the other detainees smoked and the applicant, a non-smoker, was exposed to the others’ tobacco smoke. 71. On 13 April 2011 the applicant was transported to correctional colony no. IK-19 in the Sverdlovsk Region. The trip lasted from 13 to 27 April 2011. 72. According to the applicant, he was held with twelve to fourteen other inmates in a train compartment of which the capacity was a maximum of six persons. During the stops, the applicant was housed in remand prisons in Moscow, Chelyabinsk and Yekaterinburg. All the cells there were overcrowded. The applicant was not provided with an individual sleeping place. 73. According to the Government, the applicant was transported in a train compartment measuring 159 x 214 x 287 cm. At no time did the number of inmates transported in one compartment together with the applicant exceed ten persons, the compartment’s capacity being twelve persons. It was equipped with eight sitting and four sleeping places. The applicant was provided with dry food rations and drinking water.