CASE OF RAZZAKOV v. RUSSIA
Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković
5. The applicant was born in 1971. He is a migrant worker who arrived in Voronezh in 2002 and has been working on construction sites and in repairs. He lives in the village of Mikhnevo, Nizhnedevitskiy district of Voronezh region. 6. At about 2 p.m. on 26 April 2009 the applicant arrived at a meeting place as requested by his employer, Mr G., who was acting on police instructions. Three police officers in plain clothes knocked the applicant to the ground, handcuffed him and pushed him into their unmarked car. They did not explain who they were, where they were taking him or why. According to G., who witnessed the scene, they were armed with pistols. 7. The police officers took the applicant to the Zheleznodorozhniy district police department of Voronezh (отдел внутренних дел Железнодорожного района г. Воронежа, “the Zheleznodorozhniy ROVD”), where he was led to an office on the upper floor. Two police officers in uniforms demanded that he confess to a murder. He refused to do so and was punched. 8. The uniformed police officers and those in plain clothes subjected the applicant to various acts of physical violence. They removed the handcuffs from him and bound his hands with scotch tape instead. He was seated on the floor with his arms around his bended knees. A metal bar was passed under his knees. The police officers lifted him and hung him on the bar, the ends of which were put on two tables. The police officers continued punching him in the head and the rest of his body. The pressure caused by the bar behind his knees was such that it prevented his blood from circulating. The police officers hit him several times on the head with an empty glass beer bottle. The applicant felt unwell. He was taken off the bar and untied for a short time. The police officers then hung him again in the same way and attached wires from a special device to his ears. They subjected him to electric shocks by rotating a handle on the device. The applicant felt sharp pain. 9. Then four men in masks and rubber gloves entered the office. They undressed the applicant completely, including his underwear, tied his arms and legs with his own shirt and leather belt, and hung him with a rope on the door of the office, head down. They showed him a syringe containing a yellowy fluid and threatened him with an intravenous injection. One of them tied a rope to his penis and pulled it, thereby opening and shutting the door on which the applicant was hanging. They squeezed his testicles. Several times the applicant said that he agreed to confess to the murder, but his answers did not satisfy the policemen. At some point they loosened the rope and he fell onto his head. 10. The treatment described above continued until the next morning, when the applicant was placed in a cell for administrative detainees at the same police station. A young man who was detained in that cell advised him to do as the police had requested. Two or three hours later the applicant was taken to an office and given some food. His questioning by the police officers continued. He was warned that he would not be able to support two more days of such treatment. He then confessed to the murder of a certain D., as dictated by them. In the evening he was again placed in the cell for administrative detainees, where he spent the night. 11. On 28 April 2009 police officers B. and E.S. took the applicant in handcuffs to the Zheleznodorozhniy district investigation department of the investigative committee at the Voronezh regional prosecutor’s office (Следственный отдел по Железнодорожному району Следственного управления Следственного комитета при прокуратуре РФ по Воронежской области, “the district investigative committee”) for questioning by an investigator as a witness in a criminal case concerning the murder of D. During the questioning the applicant remained in handcuffs. He was requested to sign a paper in Russian, which he could not read. He was then transferred back to the cell at the Zheleznodorozhniy ROVD. 12. At the end of the day the applicant was taken out of the cell and given back his papers and mobile phone. He was asked to sign a document which he could not read and was released. The applicant’s landlady, Ms S., who had been phoning the police in vain for the past two days to find out about his whereabouts, saw him arrive home at about 8 p.m. with a swollen eye, bruises on his wrists, a swollen leg, a lesion on his right ear resembling a burn mark and suffering from sharp pains in his chest. 13. No criminal proceedings were brought against the applicant. 14. The following morning, on 29 April 2009, accompanied by his landlady, the applicant was examined at the emergency unit of town hospital no. 1 and received a medical certificate diagnosing him with bruising of the soft tissue of his face and his rib cage. 15. On 30 April 2009 the applicant was examined at the Voronezh Regional Forensic Medical Bureau. He described his ill-treatment at the Zheleznodorozhniy ROVD. According to the expert’s forensic medical report (акт судебномедицинского освидетельствования), the applicant had bruises each measuring 3 to 4 centimetres above and below his right eye and on his left eyelid, a bruise on his right cheek, bruises on his chest (two bruises measuring 3 to 4 cm and a bruise of 1 to 2 cm), a bruise of 3.5 to 4.5 cm on his scrotum, abrasions on his forearms and right wrist, a bruise of 4 to 5 cm on his left forearm, and bruises measuring 1 to 2 cm and 2 to 3 cm behind his right and left knees respectively. 16. On 14, 15 and 18 May 2009 the applicant was examined at town clinic no. 3. On the basis of an Xray examination he was diagnosed with a fracture of the ninth rib on the right side. 17. According to a report prepared as a result of a forensic medical examination of the applicant carried out on 19 and 20 October 2009, his injuries could have been inflicted on 26-28 April 2009. 18. According to police records, at 9.15 p.m. on 27 April 2009 police officer M. arrested the applicant, who had allegedly used obscene language in the street, and at 9.30 p.m. brought him to the Zheleznodorozhniy ROVD. The applicant was found guilty of petty hooliganism and sentenced to a 500 Russian rouble (RUB) administrative fine. He was allegedly released at 12 noon on 28 April 2009. 19. On 16 July 2009 the applicant was given access to documents concerning the administrative proceedings against him. On 29 July 2009 the Zheleznodorozhniy District Court of Voronezh examined an appeal lodged by the applicant against the decision of the Zheleznodorozhniy ROVD of 28 April 2009 to give him an administrative fine. The District Court quashed the decision and terminated the administrative proceedings against the applicant for lack of an administrative offence. 20. According to the applicant, on 7 May 2009 the deputy head of the district investigative committee refused to receive his complaint of illtreatment by the police and allegedly threatened to call the migration service and have him deported from the country. 21. On 14 May 2009 the applicant’s counsel lodged a complaint of illtreatment with the district investigative committee, describing the illtreatment in detail. She supported the allegations by submitting the medical certificate of 29 April 2009 (see paragraph 14 above) and the forensic medical report of 30 April 2009 (see paragraph 15 above). She requested that criminal proceedings be brought against the police officers concerned for abuse of power (Article 286 of the Criminal Code) and torture (Article 117 of the Criminal Code). She asked for specific investigative measures to be carried out, in particular an opportunity for the applicant to identify the police officers who had been on duty on 2628 April 2009 and a forensic medical expert examination of the applicant with a view to establishing the possible cause and time of the infliction of the injuries. 22. An investigator of the district investigative committee carried out a preinvestigation inquiry. He interviewed the applicant, who gave a detailed account of his alleged ill-treatment (see paragraphs 6-12 above), Ms S., who saw the applicant arrive home with the injuries after his alleged illtreatment (see paragraph 12 above), and police officer B., who stated that on 26 April 2009 he had stayed home and that on 27-28 April 2009 he had performed duties at the Zheleznodorozhniy ROVD which had had nothing to do with the applicant. The investigator also interviewed police officers Sh. and E., who stated that on 28 April 2009 they had held a “conversation” (беседа) with the applicant in one of their offices, at the request of the head of the criminal unit of the Zheleznodorozhniy ROVD, about the applicant’s involvement in the murder of D. After the “conversation” they had taken the applicant, at the request of their supervisor, to investigator G. of the district investigative department. Both of them denied any violent behaviour on their part. The investigator also obtained the police records, according to which the applicant had been brought to the Zheleznodorozhniy ROVD at 9.30 p.m. on 27 April 2009 (see paragraph 18 above). 23. On 25 May 2009 the investigator refused to institute criminal proceedings concerning the applicant’s complaint for lack of elements of a crime in the acts of police officers Sh. and E., pursuant to Article 24 § 1 (2) of the Code of Criminal Procedure (“CCrP”). 24. The applicant appealed against the decision to the Voronezh Zheleznodorozhniy District Court under Article 125 of the CCrP. On 18 June 2009 the District Court terminated the proceedings because the previous day a deputy head of the district investigative committee had quashed the investigator’s decision as unlawful and unfounded. In particular, he had ordered that the head of the criminal police unit of the Zheleznodorozhniy ROVD, S., be interviewed in the course of an additional preliminary inquiry. 25. The investigator’s subsequent decisions of 27 June and 6 August 2009 that no criminal proceedings would be instituted on the applicant’s allegations were likewise revoked on the same grounds by the district investigative committee (on 27 July and 1 September 2009). Court appeals lodged by the applicant were not examined for the same reason (the Zheleznodorozhniy District Court’s decisions of 28 July and 1 September 2009). In his decision of 1 September 2009 the head of the district investigative committee ordered that police officers M. and Se., who had brought the administrative proceedings against the applicant, be interviewed. He also noted that the identity of all the police officers present during the “conversation” with the applicant at the ROVD had not been established. 26. On 11 September 2009 the district investigative committee again refused to institute criminal proceedings for lack of elements of a crime in the acts of police officers Sh., E., S. and R. On 8 October 2009 the investigative committee at the Voronezh regional prosecutor’s office (следственное управление Следственного комитета при прокуратуре РФ по Воронежской области, “the regional investigative committee”) set aside as unlawful and unfounded the district investigative committee’s refusal. It noted, in particular, that the applicant’s allegations were supported by the forensic medical report of 30 April 2009 (see paragraph 15 above), the explanations of Ms S. (see paragraph 12 above) and the police records certifying the applicant’s presence at the police station at the relevant time (see paragraph 18 above). It concluded that there were sufficient data disclosing elements of a crime under Article 286 § 3 (a) and (b) of the Criminal Code (see paragraph 42 below) committed by unidentified police officers at the Zheleznodorozhniy ROVD, and opened criminal proceedings. 27. On 16 October 2009 the applicant was given victim status in the criminal proceedings. 28. On 8 April 2010 the criminal proceedings were suspended for failure to establish the identity of a person to be charged, pursuant to Article 208 § 1 (1) of the CCrP. 29. The proceedings were subsequently reopened and suspended again on the same grounds several times, the last time on 25 November 2010. The investigator established in that decision that at about 2 p.m. on 26 April 2009 three unidentified police officers had taken the applicant to the Zheleznodorozhniy ROVD by force and in handcuffs. In an office on the upper floor of the ROVD two other unidentified police officers in uniforms had demanded that the applicant confess to a murder. He had refused and had been beaten up by the officers who had taken him in. During the period from 26 to 28 April 2009 both uniformed and plain-clothes police officers had subjected the applicant to various acts of physical violence, in particular punching him and hitting him with a glass bottle on his head and other parts of his body, subjecting him to electric shocks via wires attached to his ears and genitalia, and to other forms of torture, as a result of which he had confessed to the murder of D. 30. During the preliminary investigation the regional investigative committee had questioned witnesses, including police officers who had been on duty at the ROVD during the relevant period, the head of the criminal police unit and his deputies, the police officers of the criminal investigation unit, witnesses to the applicant’s apprehension, persons detained in the cells for administrative offenders during the period concerned and the doctor who had examined the applicant on 29 April 2009. It examined the offices where the illtreatment could have taken place and held identification parades to enable the applicant to identify the alleged perpetrators from among a number of the police officers who had been working at the Zheleznodorozhniy ROVD. While a number of those identification parades had not resulted in an identification (for example, police officer D.M. who was found to have been using a phone number from which calls to the applicant’s employer G. had been registered (see paragraph 6 above) had not been identified by the applicant), the applicant had identified police officers B. and S. as participants in his ill-treatment. The investigator found their identification insufficient for the prosecution in view of its alleged inconsistency with the applicant’s statements describing the perpetrators and in view of their alibi, as neither of them had according to their statements allegedly been present at the ROVD during the period concerned. 31. On 9 March 2011 the first deputy to the Voronezh regional prosecutor dismissed an appeal lodged by the applicant against the investigator’s decision of 25 November 2010 (see paragraph 29 above). On 19 April 2011 judge G. of the Leninskiy District Court dismissed a further appeal lodged by the applicant under Article 125 of the CCrP. That decision was upheld by the Voronezh Regional Court on 14 June 2011. In particular, the applicant, represented by his counsel, argued in the court proceedings that the identity of the alleged perpetrators had been established since he had identified police officers B. and S.; hence, it had been wrong to suspend the proceedings for failure to identify the alleged offenders. The courts rejected his submissions and found the investigator’s decision lawful and well-reasoned. 32. Some of the applicant’s allegations – notably that the administrative charge of petty hooliganism against him had been trumped up and that police officer B. had unlawfully handcuffed him on 28 April 2008 when taking him for questioning to the investigator in the murder case – were the subject of separate proceedings. The district investigative committee’s initial refusal to open a criminal case was followed by the regional investigative committee’s decision of 5 December 2011 to open criminal proceedings concerning the alleged forgery of administrativecase documents under Article 292 § 2 of the Criminal Code and their subsequent suspension. On 7 September 2012 the district investigative committee’s initial refusal to open a criminal case into the applicant’s handcuffing was revoked and an additional preliminary inquiry was ordered. 33. The applicant’s counsel requested the transfer of the criminal cases concerning the applicant’s ill-treatment to a new division at the Central Federal District investigative department, which had been created pursuant to order no. 20 of the chairman of the investigative committee to investigate crimes committed by police officers (see paragraph 43 below). 34. On 31 August 2012 the regional investigative committee replied to the applicant that firstly, it was not competent to take such a decision as, under Article 152 § 6 of the CCrP, a criminal case could only be transferred for investigation to a superior investigative authority by a reasoned decision of the head of that authority, and that secondly, order no. 20 did not provide for obligatory transfer of cases of this kind to the new investigative divisions. 35. On 28 September 2012 the central office of the investigative committee of the Russian Federation sent the applicant’s transfer request back to the regional investigative committee, which, in a letter of 6 November 2012, gave the applicant the same reply as before (see paragraph 34 above). 36. The applicant brought civil proceedings for damages sustained as a result of his unlawful arrest, detention at the police station, torture, handcuffing and unlawful questioning about his involvement in a criminal offence. He claimed RUB 1,200,000 in respect of non-pecuniary damage and RUB 1,435 in respect of pecuniary damage. Judge Sh. of the Leninskiy District Court of Voronezh held a hearing with the participation of the applicant, his lawyer and his interpreter, representatives of the Ministry of Finance, the Voronezh regional department of finance and budget policy and the Voronezh regional police department acting as a third party, and a prosecutor. 37. In its judgment of 29 November 2011 the District Court noted that the investigative measures conducted by the investigative committee after the opening of a criminal case had allowed it to establish the fact of the applicant’s unlawful arrest, handcuffing and detention during the period from 26 to 28 April 2009 in the offices of police officers of the criminal investigation unit (сотрудников уголовного розыска) of the Zheleznodorozhniy ROVD and in a cell for administrative detainees, as well as the fact that he had been subjected to physical violence with the aim of obtaining his confession to a murder and had had bodily injuries inflicted on him on the premises of the Zheleznodorozhniy ROVD (see paragraph 29 above). As a result of the physical and psychological violence, the applicant had confessed to a murder. He had not been detained as a suspect, nor charged with, or found guilty of, any crime. 38. On the basis of the preliminary investigation, which had established the elements of a crime under Article 286 § 3 (a) and (b) of the Criminal Code, the Zheleznodorozhniy District Court’s judgment of 29 July 2009 terminating the administrative proceedings against the applicant for lack of an administrative offence (see paragraph 19 above) and the evidence submitted by the applicant in the civil proceedings, the District Court found it established that the applicant had been subjected to the abovementioned unlawful acts by police officers, despite the failure to identify them all. Of those identified, the District Court noted M., G. and Ch., who had signed the records and the decision concerning the administrative offence allegedly committed by the applicant. The physical violence to which the applicant had been subjected had not been made necessary by his conduct, had diminished his human dignity and had as such been a violation of the law. The District Court awarded the applicant RUB 840,000 in respect of nonpecuniary damage and RUB 835 in respect of pecuniary damage, to be paid by the federal and regional treasuries, and rejected the remainder of his claims. 39. According to the internet site of the Voronezh Regional Court, on 22 March 2012 it examined the case following appeals lodged by the respondent authorities. No appeal against the Leninskiy District Court’s judgment had been lodged by the applicant, who was represented before the appeal court by his counsel. The Regional Court rejected the appeals and upheld the judgment. 40. A complaint about the applicant’s ill-treatment was also lodged with the Voronezh regional police department, which informed the applicant’s counsel on 23 July 2009 that police officer M. had been disciplined for his failure to identify an alleged witness to the applicant’s administrative offence. 41. Police officer S., identified by the applicant as one of those who had participated in his illtreatment (see paragraph 30 above), was promoted on 1 October 2010 as head of a district police department.