CASE OF SHESTOPALOV v. RUSSIA
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);No violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Torture)
Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
6. The applicant was born in 1986 and lives in Nizhniy Novgorod. 7. At about 10.30 a.m. on 24 May 2004 two police officers from the Sovetskiy district police visited the applicant and invited him to answer some questions. With the permission of his mother, the applicant, a minor at the time, accompanied them to the Sovetskiy district police station in Nizhniy Novgorod. 8. The applicant’s interview took place in room no. 306. He was asked questions concerning the rape of a girl he knew, but stated that he had nothing to do with the crime. 9. According to the applicant, some police officers tied him up and put him on the floor. About forty minutes later they untied him and requested that he confess to the rape. He refused. Four or five police officers punched and kicked him in the head and body, throttled him with a baton, put a plastic bag over his head and blocked off his access to air, sat and jumped on him having covered him with a blanket, grabbed him by the ears and forced him to do the splits. 10. Fearing that the ill-treatment would continue, the applicant signed a self-incriminating statement at the request of the police officers. He was then taken to see S., an investigator at the prosecutor’s office. After being questioned by S. he was released. He remained at the police station for approximately ten hours. No documents concerning his detention were issued. 11. On 25 and 26 May 2004 the applicant underwent various medical examinations, including by a forensic medical expert. Additional opinions by forensic medical experts were given later. According to the applicant’s medical records, he sustained the following injuries: a closed head injury, concussion, abrasions on and behind the ears and on the arms and knees, bruising on the right shoulder and ribcage and bruises on the buttocks. He was unable to attend school until 15 June 2004, having been issued a sick note on 26 May 2004 for concussion. 12. The rape victim gave a statement saying that the applicant was not the person who had raped her. No criminal proceedings were brought against him. 13. On 26 May 2004 the applicant’s mother lodged a complaint with the Sovetskiy district police, alleging that the police officers had subjected her son to ill-treatment in order to make him confess to a crime which he had never committed, and requesting that they be prosecuted. On 28 May 2004 her complaint was transferred to the Sovetskiy district prosecutor’s office. 14. In accordance with Article 24 § 1 (2) of the Code of Criminal Procedure (“CCrP”), six refusals to institute criminal proceedings against the police officers were issued on the grounds that the constituent elements of a crime were missing. They were each set aside because a comprehensive inquiry had not been carried out. On 20 February 2006 the Nizhniy Novgorod regional prosecutor’s office instituted criminal proceedings under Article 286 § 3 (a) of the Criminal Code (abuse of authority with the use of violence). 15. On 28 February 2006 the applicant was granted victim status. 16. Police officers A. and G. gave statements saying that on 24 May 2004 they had invited the applicant to accompany them to the police station. He had remained in room no. 306 until evening and they had been present in the room, as had police officer F., who had taken statements from him. They denied any ill-treatment of the applicant. 17. On 11 May 2006 the applicant failed to identify A. and G. during an identification parade. 18. On 14 July 2006 he identified operative police officer F. from a photograph as one of the men who had ill-treated him. On the same day the investigation was suspended on the grounds that the perpetrator had not been identified. 19. On 27 July 2006 the investigation was resumed and the applicant identified F. during an identification parade. During his examination as a suspect F. confirmed that on 24 May 2004 he had taken statements from the applicant in room no. 306, but denied using any violence. 20. On 24 August 2006 a face-to-face confrontation was carried out between the applicant and F. The applicant stated that F. had taken part in his illtreatment and had taken the confession from him. He was unable to recall any specific acts of violence by him. 21. On 25 August 2006 the criminal proceedings against F. were discontinued under Article 27 (1) § 1 of the CCrP on the grounds that he had not been involved in the crime. 22. On 10 January 2007 an on-site examination of room no. 306 was carried out. 23. On 26 January 2007 a confrontation was held between the applicant and police officers A. and G., who again both denied using any violence towards the applicant. The applicant stated that A. had taken part in his illtreatment, but he was unable to recall any specific acts of violence by him. He explained that he had not previously identified A. because he had poor eyesight. On the same day the investigating authority refused to bring criminal proceedings against A. on the grounds that the constituent elements of a crime were missing. The applicant stated that G. had not assaulted him, but had interviewed him and had been present during his ill-treatment. 24. On 26 January 2007 photographs of several other police officers were shown to the applicant. He did not identify the culprits. 25. On the same day the criminal proceedings were suspended on the grounds that the perpetrators had not been identified. The investigation was subsequently resumed and on 19 April 2007 was suspended again on the same grounds. 26. In 2008 the applicant brought a civil claim against the Russian Ministry of Finance, seeking 500,000 Russian roubles (RUB) in damages in connection with his torture by the police. 27. On 17 November 2008 the Sovetskiy District Court of Nizhniy Novgorod (“the District Court”) acknowledged a violation of the applicant’s right not to be subjected to treatment proscribed under Article 3 of the Convention, allowed the applicant’s civil claim in part and awarded him RUB 50,000 (about 1,450 euros (EUR)). 28. It referred to Convention caselaw under Article 3 concerning the State’s obligation to carry out an effective investigation, notably the case of Mikheyev v. Russia (no. 77617/01, 26 January 2006). It noted that the criminal proceedings had been initiated after six refusals to do so and that it had been acknowledged that the applicant had been the victim of a crime. 29. The District Court gave credence to the applicant’s mother’s version of events, which it found to be consistent with other evidence in the case, in particular statements by her that the applicant had had no injuries when he had left home with the police officers and that his health had appeared to have been damaged when he had returned from the police station. Noting that the respondent authorities and the Sovetskiy district police, acting as a third party in the proceedings, had submitted no evidence capable of proving that the applicant could have received the injuries (see paragraph 11 above) in other circumstances, the District Court established that they had been sustained during his detention at the police station. 30. The District Court noted that the applicant had been a minor at the time and that, according to his submissions at the hearing, various acts of violence, to which the police officers of the Sovetskiy district police had, in the exercise of their duties, subjected him (see paragraph 9 above), had caused him mental and physical suffering. According to the applicant, he had suffered severe pain as a result of the police officers’ violent actions, which had included being punched, kicked, throttled with a baton, being unable to breath, being sat on and jumped on, being forced to do the splits and so on. He had been dizzy, nauseous and sick. Over the next few days he had been weak and dizzy and had felt heaviness in the back of his head. When the police officers had tried to throttle him he had feared for his life. There had been no one to ask for help. The fact that he had suffered harm at the hands of the police, who were supposed to be there to protect people, had been especially traumatic. He had been scared, subdued and depressed. His honour and dignity had been damaged. In his eyes, by forcing him to sign the confession the police officers had humiliated him. 31. Having examined the evidence in its entirety, in particular the medical evidence of the applicant’s injuries, the District Court found that the applicant’s mental and physical suffering had been caused by the unlawful actions of the police officers of the Sovetskiy district police department, in particular by the inhuman and degrading treatment and by inflicting bodily harm. Therefore, his rights under Article 37 of the United Nations Convention on the Rights of the Child and Article 3 of the European Convention on Human Rights had been violated. 32. Relying on the Russian Constitution, in particular the provisions concerning the right to compensation for damage sustained as a result of the unlawful actions of State organs (Article 53), the District Court held that the State was responsible for the applicant’s ill-treatment regardless of the fact that the guilt of specific individuals had so far not been established. 33. The parties appealed against the judgment. The applicant contested the amount of compensation, considering it to be disproportionate to the suffering he had endured. 34. On 3 March 2009 the Nizhniy Novgorod Regional Court dismissed the applicant’s appeal and upheld the judgment. However, it emphasised the fact that, being a minor at the time, to be held at the police station for approximately ten hours was a long time, and that the authorities had been unable to provide any legitimate reasons for his detention.