CASE OF VELIKANOV v. RUSSIA
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković
5. The applicant was born in 1977 and lives in Shchelkovo, the Moscow Region. He is currently serving a prison sentence in the Saratov Region. 6. On 31 March 2003 the applicant was arrested on suspicion of murder and was placed in a temporary detention facility of the Shchelkovo Office of the Interior of the Moscow Region (“the Shchelkovo IVS”). According to the applicant, police officers under the command of police officer N. took him to special cells for questioning, where they tried to extract a confession from him or else make him sign blank sheets of paper. As he refused, they handcuffed him to a chair and beat him on his back and sides. Eventually he did sign a confession. 7. On 21 April 2003 the applicant was transferred to remand prison no. 50/8 in Sergiyev Posad, the Moscow Region (“SIZO-50/8”). Following a medical examination, the remand prison authorities refused to admit the applicant. In a report of the same date they indicated that he had a number of injuries, including a contusion of the spine and a contusion of the left side of the chest with a suspected fracture of the ribs, and that he needed further examination by medical experts. 8. On the same date the applicant was taken back to the Shchelkovo IVS and then transported to the Shchelkovo town hospital, where he underwent a medical examination, including an X-ray examination. The physician and neuropathologist who examined the applicant noted their findings in the above-mentioned report of SIZO-50/8. They are barely legible, but appear to confirm that the applicant had contusions of the spine and of the chest. 9. On the reverse side of the referral for the X-ray examination dated 21 April 2003 there is a hand-written finding by a radiologist dated 23 April 2003. It is likewise barely legible, but appears to confirm the contusion of the spine and the absence of a fracture. 10. On 25 April 2003 the applicant was admitted to SIZO-50/8. 11. On 24 March 2011 the head of SIZO-50/8 issued two certificates addressed to the Court. According to one certificate, between 25 April 2003 and 20 January 2004 – while the applicant was held in SIZO-50/8 – he had not made any complaints concerning his detention. According to the other certificate, admission of the applicant to SIZO-50/8 had been refused on 21 April 2003 as it appeared necessary to conduct an additional medical examination in order to confirm the diagnosis. No entry to that effect was made in the remand prison register since, in accordance with the applicable regulations, the register contained only information about individuals actually held in the remand prison, whereas the applicant was not admitted. 12. On 16 August 2007 the applicant complained that he had been beaten by the police. He referred, in particular, to the report of 21 April 2003 confirming his injuries. 13. On 24 August 2007 the Shchelkovo prosecutor’s office refused to institute a criminal investigation into the applicant’s complaint. The relevant decision stated briefly that there was no information in the Shchelkovo IVS indicating that the applicant had ever requested medical assistance during his detention pending trial. It went on to note that, according to a certificate from the Shchelkovo town hospital, which the applicant had attended, he had been diagnosed with influenza and spontaneous rupture of tendons. The decision further stated that during his detention pending trial, none of the injuries indicated in the applicant’s complaint had been found on his person, and concluded that the applicant’s allegations of ill-treatment were unfounded and unsupported by any evidence. The decision remained silent about the report of 21 April 2003 to which the applicant referred in his complaint. 14. On 5 September 2007 a supervising prosecutor set aside the above decision. 15. In a decision of 29 September 2007 the investigating authorities again refused to institute criminal proceedings in connection with the applicant’s complaint. The decision was similar to that of 24 August 2007 and stated, in particular, that there was no information in the Shchelkovo IVS indicating that the applicant had requested medical assistance, or that any injuries had been inflicted on him during his detention pending trial. According to the decision, it was impossible to obtain an extract from the register of detainees of the Shchelkovo IVS since all the documents had been lost by its former head. The decision also referred to a certificate from the Shchelkovo town hospital attesting that the applicant had been diagnosed with influenza and spontaneous rupture of tendons, and stated that this latter injury had not been related to the injuries alleged by the applicant. The decision also indicated that the applicant had not undergone any medical forensic examination in the course of the criminal proceedings against him. It then concluded that the applicant’s allegations of ill-treatment were unfounded and unsupported by any evidence. The decision did not mention the applicant’s reference to the report of 21 April 2003. 16. On 10 January 2008 the applicant lodged a complaint with the Shchelkovo Town Court under Article 125 of the Russian Code of Criminal Procedure concerning the decision of 29 September 2007, arguing that the inquiry into his allegations of ill-treatment by the police had been incomplete and, in particular, the investigating authorities had ignored the report of 21 April 2003. In a letter of 18 January 2008 the Shchelkovo Town Court returned the applicant’s complaint to him, indicating that a number of shortcomings should be remedied. The applicant did not appeal. 17. On 7 February 2008 the supervising prosecutor quashed the decision of 29 September 2007 as premature, stating that the inquiry had been incomplete. The prosecutor ordered the investigating authorities to identify and interview the police officers and the senior investigator who had participated in the criminal proceedings against the applicant, to obtain copies of documents from SIZO-50/8 concerning the applicant’s medical examination there, to obtain relevant documents from his personal file and to perform other necessary actions. 18. By a decision of 14 February 2008 the Shchelkovo Town Court dismissed the applicant’s complaint concerning the decision of 29 September 2007, stating that this latter decision had by that time already been set aside by a supervising prosecutor and an additional inquiry into the applicant’s allegations of ill-treatment had been ordered. It is unclear whether the applicant appealed against the Shchelkovo Town Court’s decision to a higher court. 19. On 11 February 2008 the investigating authorities again refused to institute criminal proceedings in connection with the applicant’s allegations of ill-treatment. Their decision stated that, upon receipt of the documentation seeking a further inquiry, requests for information had been sent to the head of SIZO-50/8 and the head of the Shchelkovo Office of the Interior, and that the investigator in charge of the criminal case against the applicant had been interviewed. The decision then stated that “at present there [was] no objective evidence that officers of the Shchelkovo Office of the Interior [had] applied violence to the applicant”. 20. On 2 March 2008 the supervising prosecutor quashed the decision of 11 February 2008, stating that the inquiry into the applicant’s allegations of beating by the police had been incomplete, that the necessary measures had not been taken and, in particular, copies of documents from SIZO-50/8 concerning the applicant’s medical examination at that centre and relevant documents from his personal file had not been obtained. 21. In a decision of 5 March 2008, similar to that of 11 February 2008, the investigating authorities again refused to institute criminal proceedings in respect of the applicant’s allegations of ill-treatment by the police, stating that, “as of this date, no replies to requests for information sent earlier [had] been received”, and that “therefore there [was] no objective evidence that officers of the Shchelkovo Office of the Interior [had] inflicted violence on the applicant”. 22. On 24 June 2008 the supervising prosecutor quashed the decision. 23. On the same date the Shchelkovo Town Court dismissed a complaint by the applicant concerning the decision of 5 March 2008, stating that this latter decision had already been quashed and a further inquiry had been ordered. The applicant did not appeal against the first-instance decision. 24. On 4 July 2008 the investigating authorities again refused to institute criminal proceedings in connection with the applicant’s complaint that he had been beaten by the police. The relevant decision noted that the applicant, when interviewed with regard to his allegations, had submitted that during the period of his detention in the Shchelkovo IVS he had been ill-treated on several occasions by police officers, who had chained him to a chair or a table and had beaten him on his back and in the ribs, and that upon his delivery to SIZO-50/8 a report had been drawn up confirming his injuries. He had also stated that he had undergone an X-ray examination in the Shchelkovo town hospital on 24 April 2003 and that the results of that examination had been recorded in X-ray image no. 1478. The applicant had submitted that he did not know the police officers who had beaten him, and that he only knew a certain N., an officer of the Shchelkovo Office of the Interior, who had not himself applied force to the applicant, but had brought with him two individuals in civilian clothes, the latter forcing the applicant to confess to the alleged offence. The decision went on to say that in the applicant’s personal file there was no information indicating whether he had undergone any medical examinations in the period between 31 March and 31 May 2003. 25. The decision further referred to a reply from SIZO-50/8, according to which the remand prison had no information concerning the applicant’s examination by a medical official on 21 April 2003. It also pointed out that a reply from the Shchelkovo town hospital had provided no information indicating that the applicant had ever undergone an X-ray examination in that hospital, nor was there any X-ray image such as that referred to by the applicant in the hospital’s archive. The decision further stated that the officer N., referred to by the applicant, and investigators B. and S., who had conducted the investigation into the applicant’s criminal case, when interviewed in the context of the present inquiry had denied using physical force or psychological pressure in respect of the applicant or seeing anyone else doing so. The decision also noted that the applicant had not complained about the alleged ill-treatment until four years after the events in question. It then stated that the investigating authorities considered that the applicant had alleged such ill-treatment by the police in an attempt “to mislead the investigating authorities, who were spending their time and resources investigating offences that [had] in reality [not been] committed, and to accuse public officials of serious offences, thereby affecting a number of individuals who were obliged to devote time to giving oral evidence to the investigating authorities”. The decision therefore concluded that there was no evidence of the offence alleged by the applicant. 26. On 13 April 2009 the supervising prosecutor set aside the decision of 4 July 2008, stating that the inquiry had been incomplete. 27. On 30 April 2009 the Shchelkovo Town Court dismissed a complaint by the applicant concerning the decision of 4 July 2008, referring to the fact that this latter decision had already been quashed by the supervising prosecutor. The applicant did not appeal against the first-instance decision. 28. On 16 April 2009 the investigating authorities again refused to institute criminal proceedings in relation to the applicant’s complaint that he had been ill-treated by the police. The relevant decision was identical to that of 4 July 2008. The only comment added was that it appeared impossible to question investigator B. and officer N., as they had not responded to telephone calls. 29. On 1 December 2010 the Shchelkovo Town Court dismissed a complaint by the applicant concerning the decision of 16 April 2009. Although the court noted that the applicant referred to the medical report of 21 April 2003, it did not address it any further but instead stated that the investigation conducted into his allegations had been complete. The court referred, in particular, to certain explanations obtained from the investigators who had been in charge of the applicant’s case. 30. A request by the applicant to restore the time-limit for appealing against the decision of 1 December 2010 was granted by the Shchelkovo Town Court on 19 January 2011. 31. On 22 March 2011 the Moscow Regional Court quashed the decision of the Shchelkovo Town Court of 1 December 2010 on appeal on the following grounds. Firstly, although the applicant had challenged the judge – because it was the same judge who had convicted him – this had not been examined by the first-instance court. Secondly, the first-instance court had not examined the report of 21 April 2003 and, thirdly, it had referred to certain explanations by investigator B. and officer N. that could not be found in the case file. 32. On 23 May 2011 the Shchelkovo Town Court again dismissed the applicant’s complaint concerning the decision of 16 April 2009. The court stated, in particular, that whereas the applicant had provided a copy of the report of 21 April 2003, it appeared impossible to verify its authenticity since there was no information about the medical examination in question in his file. It further noted that neither during the preliminary investigation nor at the trial had the applicant made any allegations of ill-treatment. It is not clear whether the applicant appealed. 33. Meanwhile the applicant resubmitted his complaint of ill-treatment, which was dismissed by the investigating authorities on 4 October 2010 on the grounds that an investigation into the applicant’s allegations had already been conducted and they had been proved unsubstantiated. 34. On 28 August 2003 the Shchelkovo Town Court convicted the applicant of murder and sentenced him to eleven years’ imprisonment. 35. On 12 February 2004 the Moscow Regional Court upheld the first-instance judgment on appeal. 36. At some point, one of the witnesses stated that he had made false statements incriminating the applicant in the course of the criminal proceedings against the latter. Thereafter the applicant attempted – unsuccessfully – to have criminal proceedings brought against that witness. In the period between 2006 and 2009 the domestic courts dismissed complaints by the applicant concerning the investigating authorities’ decisions to dispense with criminal proceedings in that regard. 37. Article 125 of the Russian Code of Criminal Procedure provides for judicial review of decisions, acts or inaction on the part of an inquirer, investigator or prosecutor which affect constitutional rights or freedoms. The judge is empowered to verify the lawfulness and reasonableness of the decision, act or inaction and to grant the following forms of relief: (i) to declare the impugned decision, act or inaction unlawful or unreasonable and to order the authority concerned to remedy the violation; or (ii) to dismiss the complaint. 38. In its Resolution of 10 February 2009 the Plenary Supreme Court of Russia stated that it was incumbent on judges – before processing an Article 125 complaint – to establish whether the preliminary investigation had been completed in the main case (point 9). If the main case has already been sent for trial or the investigation completed, the complaint should not be examined unless it has been brought either by a person who is not a party to the main case or – if such a complaint is not amenable to judicial review under Article 125 – at the pre-trial stage of the proceedings. In all other situations the complaint under Article 125 should be left unexamined and the complainant should be informed that he or she can raise the matter before the trial or appeal courts in the main case. 39. Similarly, according to the Constitutional Court’s construction, a complaint under Article 125 cannot be brought or pursued after the criminal case to which the complaint is connected has been submitted for trial. However, where it is established that a party to the proceedings (including a judge or a witness) has committed a criminal offence, thus seriously compromising the fairness of the proceedings, the Code exceptionally allows for separate investigation of the relevant circumstances, leading to a reopening of the case (see Decision no. 1412OO of 17 November 2009; see also Ruling no. 20-П of 2 July 1998 and Ruling no. 5-П of 23 March 1999).