KSENZOV v. RUSSIA
Inadmissible
Christos Rozakis
The applicant, Mr Pavel Aleksandrovich Ksenzov, is a Russian national, who was born in 1980 and lives in Rostov-on-Don. He is represented before the Court by Mr Krakovskiy, a lawyer practicing in Rostov-on-Don. The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. On 9 February 2000 the applicant was arrested on suspicion of having murdered two minors and was brought to the Pervomaiskiy District police station in Rostov-on-Don. According to the applicant, in the police station he was beaten up. In particular, he alleges that he was hit with a baton and with a wooden hammer, that he was beaten on the head with a plastic bottle filled with water while being handcuffed and chained to a pipe. According to the applicant, on 20 February 2000 he was taken out of the cell and brought to an officer of the prosecutor's office who hit him on the head with a chair, stripped him naked, handcuffed the applicant's wrists and feet together, put the applicant on the knees and tortured him with electric shocks to force him to confess that he had committed the murder. On 3 March 2000 the applicant sent a letter to his mother in which he mentioned that on the day of arrest he “was beaten almost to death” by police officers. On 19 April 2000 the applicant's mother passed him certain medicines, allegedly for liver and kidney treatment. On 26 July 2000 in the hearing of the criminal case against the applicant he pleaded guilty in having taken part in the robbery and murder, but contested that he had organised them. In this context he denied in part the confession he made at the interrogation. He alleged that he made it under duress. The court called and examined the investigator, Mr Tiskovskiy, who testified that during investigation “the applicant's state of health was normal” and that “he had never received any complaints from the applicant about ill-treatment by the police”. The court held that “[the applicant's] declaration that he had been beaten up upon arrest by police officers [was] unsubstantiated”, found that the statement at issue was consistent with other evidence, and recalled that the applicant kept changing his submissions concerning his role in the gang throughout the proceedings. On that basis it admitted the disputed statement as evidence aggravating the applicant's charge. On 10 January 2001 the Supreme Court of the Russian Federation considered the applicant's appeal, which was based, in particular, on his complaint that the statements allegedly made under duress were wrongly admitted as evidence. It found that the first instance court exercised sufficient diligence examining the applicant's objections and rightly admitted the disputed evidence, given that the allegations of ill-treatment were completely unsubstantiated. Following the communication of this case to the respondent Government the applicant's complaints about ill-treatment were apparently brought to the attention of competent domestic authorities. The latter, in turn, questioned the persons who could have witnessed the events concerned. In this connection, on 4 and 6 June 2003 written statements were produced by Z. and M., the applicant's former cellmates in the cell No. 113 of the detention facility IZ61/1. They testified that no physical force or other pressure was applied to the applicant or other inmates. On 9 June 2003 the Pervomaiskiy District Prosecutor's Office conducted a further investigation. The investigator, the legal aid counsel who had been present at interrogation, and the police officers of the Pervomaiskiy police station who arrested the applicant, were questioned. All of them denied that ill-treatment had taken place, or that the applicant's confession had been forced. They stated that at the material time the applicant had no injuries and made no complaints about ill-treatment. On 11 June 2003 the prosecutor's office concluded that no proof to the applicant's allegations could be found and refused to open criminal investigation into the alleged illtreatment. It referred to the statements of the investigator, the counsel and the police officers. In addition, it stated that the existing security control would not allow the officers to bring the objects allegedly used for torture into the interrogation area and noted that the furniture in the interrogation area was secured to the floor. From 18 February 2000 to 21 October 2000 the applicant was detained on remand in the detention facility IZ-61/1 (then IZ-59/1) in Rostov-on-Don. Initially he was detained in a common cell No. 113. Following the judgment of 26 July 2000, the applicant was transferred to the cell No. 88, a special cell for detainees serving a life sentence. For some time he was kept alone, until another detainee was placed in the same cell. The applicant gives the following account of the conditions in the cell. It was a solitary confinement cell measuring 2.5 m x 2 m, 2.3 m high; there was no daylight; the 60 watt bulb was covered by two layers of dense metal mesh leaving the cell always dark, which made it impossible to read or write; the concrete floor was flooded with water, there was mould on the walls and the ceiling; there was no air ventilation; the air was stale and musty; the cell was dirty and overrun with cockroaches and infested with pests and mice; access to tap water was limited, as the tap could only be turned on by the warder outside the cell; the toilet was often blocked with sewage. The Government submit that the cell No. 88 had a window, a toilet, a washbasin; that the temperature and humidity were maintained in accordance with the standard sanitary requirements; the applicant had a bed and was provided with a set of bedding. On 24 August 2000 the applicant's mother complained to a prosecutor's office that the applicant's cell had no daylight and that it was damp. On 25 August 2000 the applicant's counsel submitted a complaint to the administration of the detention facility claiming that the applicant should not have been transferred to a solitary confinement cell. On 28 August 2000 the applicant's mother submitted a written complaint to the Chief Supervisor of the Detention Facilities of the Rostov Regional Prosecutor's Office alleging, inter alia, that the applicant's cell was damp. On 30 August 2000 the Chief Supervisor of the Detention Facilities of the Rostov Regional Prosecutor's Office informed the applicant's mother that an inspection had been conducted further to her complaints about the applicant's detention conditions. He replied that the condition in his cell “generally satisfied the sanitary requirements, although the detainees slept in turns due to the shortage of bunk beds”. On 6 September 2000 the Chief of the detention facility informed the applicant's counsel, in reply to his complaint of 25 August 2000, that the applicant was detained in a cell intended for a small number of inmates according to the law and to the applicant's own request. On 9 September 2000 the applicant's mother and counsel brought proceedings before the Kirovskiy District Court of Rostov against the administration of the detention facility IZ61/1. They referred, in particular, to the poor detention conditions: insufficient light, humidity, lack of air ventilation, restricted access to tap water and toilet facilities. On 21 October 2000, the applicant, further to his complaints about poor conditions in the cell No. 88, was transferred to the detention facility IZ61/3 (then UC-398/T) in the town of Novocherkassk, where he remained until 6 December 2000. He was detained in solitary confinement cells Nos. 19 and 20. The applicant alleges that his cell was cold; that he was not allowed to have blankets or warm clothes and thus had to sleep on a bare iron bed, that the sewage was often blocked and that his access to the water tap was limited. The Government submit that the applicant's cells had adequate sewage and water supply, and that light and temperature were in accordance with standard sanitary requirements. The applicant was provided with clothes and bedding. On 1 November 2000 the applicant's mother filed a complaint with the Rostov Regional Prosecutor's office which included a complaint about the poor conditions in the detention facility IZ-61/3. In particular, she complained that the applicant was placed in a solitary confinement cell with a limited water supply; she requested to be permitted to give him warm clothes and a blanket. From 9 December 2000 to 18 February 2001 the applicant was held in SIZO2 (IZ77/2), a detention facility in Moscow. It appears that he was subsequently transferred back to the detention facility IZ-61/1. On 2 March 2001 the Kirovskiy District Court of Rostov discontinued the proceedings against the prison administration as the parties had failed twice to appear before the court. On 15 March 2001 the applicant was transferred from the detention facility IZ-61/1 to another penitentiary institution to serve his sentence. On 14 February 2002 the Kirovskiy District Court of Rostov accepted the claim of the applicant's counsel that he had not been duly summoned to take part in the proceedings and reversed its decision of 2 March 2001. On 12 March 2002 the applicant's mother filed a request to discontinue proceedings against the prison administration, as they were apparently brought by the applicant's counsel without consent of either the applicant or herself. On 3 April 2002 the Kirovskiy District Court of Rostov decided to discontinue the proceedings against the prison administration as the plaintiff had failed two more times to appear before the court. The court also took into account the request of the applicant's mother to discontinue proceedings. This decision has not been appealed. On 4 June 2003, following the communication of this case to the respondent Government, and apparently in response to their request to clarify certain facts, the applicant gave written explanations to the Chief Penitentiary Directorate concerning the conditions in the pre-trial detention. He wrote that the conditions in the detention facilities IZ61/1, IZ61/3 and SIZO-2 were satisfactory. He stated that he had had no complaints concerning his pre-trial detention conditions and that it was his counsel who wrote the complaint to the Court. The criminal proceedings against the applicant began on 9 February 2000. On 20 February 2000 the applicant signed a confession that he had murdered two minors. On 26 July 2000 the Rostov Regional Court held the applicant guilty on account of a robbery and an aggravated murder and convicted him to life imprisonment. On 9 September 2000 the applicant's mother and counsel brought proceedings before the Kirovskiy District Court of Rostov against the administration of the detention facility IZ61/1. They claimed, inter alia, that the applicant was handcuffed whenever he visited him in the detention facility, which hampered reading the file and prevented the applicant from taking notes or writing complaints. He also complained that on several occasions the administration of the detention facility had hindered correspondence between the applicant and himself, which impeded the applicant's right to defend himself in the criminal proceedings. These proceedings were subsequently terminated for being abandoned by the applicant, as described above in para. 2 (“Conditions of detention”). On 10 January 2001 the Supreme Court of the Russian Federation, acting on appeal, upheld the first instance judgment as to the substance, but reduced the sentence to 20 years' of imprisonment. On 11 June 2003, following the communication of this case to the respondent Government and apparently in response to their request to clarify certain facts, the applicant gave written explanations to the Chief Penitentiary Directorate of the Rostov Region. He stated that he was not handcuffed during the meetings with his counsel in the period between October and December 2000. He made no comments as to other periods. On 15 February 2000 a regional newspaper Vecherniy Rostov published an article based on an interview with the Pervomaiskiy District Prosecutor. The article was entitled “Three perverts valued children's lives at RUR 8,000”. The article was accompanied by the photograph of the prosecutor and the passport size photographs of the applicant and his two co-accused. The article referred to the prosecutor's opinion on the matter and contained, inter alia, the following statements: “[...] Mr Ksenzov [i.e. the applicant], 20, one of the murderers, responded that they had to [kill them] because [one of the victims] had recognised him. The officers of the Pervomaiskiy District Prosecutor's office disagree. They are convinced that Ksenzov together with his companions in crime had a clear murderous intent, why would they carry knives otherwise? [...] The circumstances of the bloody crime were as follows [...]. The murderers are found to be three unemployed young men: Pavel Ksenzov, [A.P.] and [M.I.] [...]. The ringleader in the gang was Ksenzov [...]. A decision to create a criminal gang of three came earlier this year. They had no desire of earning by fair means, and were not skilled enough for burglary, hence they chose robbery [...]. They cut the first girl's throat and dragged the second one to the bathroom to torture her. [...] The perverts took money and then cruelly killed the girl hitting her in turn with knives and scissors. [...] The criminals were found within less than a day due to the professionalism of investigators of the Pervomaiskiy District Prosecutor's office. [...] All three [including Ksenzov] were arrested on 9 February. [...] 'What punishment awaits the murderers?', asks the Vecherniy Rostov's reporter. 'It is for the court to impose the sanction, although I can only add, as a human, that the capital punishment has not yet been officially abolished [...]', Mr Mkrtychev answers.” On 30 June 2000 the applicant's counsel challenged before the Sovetskiy District Court of Rostov the newspaper publication of 15 February 2000. In particular, he requested to declare the statement of guilt publicly made by the prosecutor prior to a trial unlawful. On 21 November 2000 the Sovetskiy District Court of Rostov held that the claim could not be examined, as the counsel had not been authorised by the applicant to bring any proceedings which fell outside the main criminal proceedings. This decision has not been appealed. The relevant provisions of the Code of Criminal Procedure of 1960 in force at the material time were reviewed by the Constitutional Court of the Russian Federation in its Ruling No. 1-P dated 14 January 2000. It abolished the courts' power to institute criminal proceedings as incompatible with their judicial function, other that for a limited category of private prosecution cases. The relevant part of the ruling reads as follows: “If a court examining a criminal case establishes facts which themselves disclose an appearance of a crime [committed by a third person], it must refrain from stating that there are sufficient grounds to suspect a particular person and from formulating charges, and must refer the relevant materials to the prosecution authorities competent to carry out further checks and to take a decision as to whether there are sufficient grounds to institute criminal proceedings. The latter are obliged to take immediate measures pursuant to the facts and circumstances established by the court.” The Federal Law N 4866-1 On Appeal against Acts and Omissions Infringing Individual Rights and Freedoms dated 27 April 1993, provides for a judicial avenue for claims against public authorities. It states that any act, decision or omission by a state body or official can be challenged before a court if it encroaches on an individual's rights or freedoms or unlawfully vests an obligation or liability on an individual. In such proceedings the court is entitled to declare the disputed act, decision or omission unlawful, to order the public authority to act in a certain way vis-à-vis the individual, to lift the liability imposed on the individual or to take other measures to restore the infringed right or freedom. If the court finds the disputed act, decision or omission unlawful this gives rise to a civil claim for damages against the State. The Code on Civil Procedure as in force at the material time contained similar provisions. The Civil Code provides for the procedure by which an individual can sue the State for damages in civil proceedings. According to the applicant, in 2000 the Ombudsman of the Russian Federation published a country report, which states that in 1999 263,645 complaints about police misconduct were filed, and that 902 out of them resulted in prosecution of police officers. On 23 November 2001 the Rostov-based NGO Christians against Torture and Child Slavery adopted a document entitled “Preliminary Report on Ill-Treatment during Pre-trial Investigation”. The report presents an account of 19 cases of ill-treatment in the Rostov Region recorded by this NGO. The reference period is not defined in the report, but at least two of the reported cases date back to 2000. The report also contains the following figures obtained through a questionnaire answered by 130 advocates of 17 different bar associations of the Rostov Region: - 58 respondents had come across cases of ill-treatment by police; - 73 did not believe that there existed effective legal remedies against ill-treatment; - 10 believed that such remedies existed; - 68 did not consider it possible to receive compensation for ill-treatment; - 10 considered it possible; - other respondents have never considered to seek redress; - a majority did not believe that emergency medical assistance was readily available in the event of ill-treatment by police. On that basis the report concluded that torture of suspects in criminal cases was a “common practice”