CASE OF LYKOVA v. RUSSIA
Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)
Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
5. The applicant was born in 1964 and lives in Voronezh (Voronezh Region). 6. On 9 September 2009, between 10 and 11 a.m., the applicant’s son, Mr Sergey Lykov, and his friend P. were stopped by police officers at a bus stop in Voronezh. They were given no reasons. Sergey Lykov and P. were then taken to the premises of department no. 6 of the Voronezh Region criminal police (оперативно-розыскная часть № 6 криминальной милиции главного управления внутренних дел по Воронежской области) (hereafter, “the police station”). 7. Inside that police station, a police officer, S., ordered the other police officers present to undress Mr Lykov and P. and to bind their hands and feet with adhesive tape. S. began punching Mr Lykov and P. on the head, urging them to confess to all the thefts that they had committed. Faced with their silence, S. and another police officer began to hit each of their heads violently against the ground, as well as against a cupboard and a table. After 15 minutes they stopped striking them and S. ordered one of the police officers to “give [P.] a fashionable haircut” by cutting locks of his hair with a knife. S. and other police officers then placed plastic bags around the heads of Mr Lykov and P. to suffocate them. Faced with the repeated nature of these actions, Sergey Lykov, who was exhausted, asked S. to tell him what he wanted to know. S. again asked him to confess to the alleged thefts. Mr Lykov then admitted that they had burgled an apartment in 2007. S. ordered the police officers to take Sergey Lykov to another room. 8. The police officers continued to torture P. with electricity. A few minutes later the police officer returned Sergey Lykov to the office. According to P., Sergey Lykov was “in a bad way”, although he had no obvious physical injuries. P. was taken to another office, where he began writing a confession. While he was writing, he heard Sergey Lykov betin to cry out. According to P., his cries lasted a good hour. Shortly afterwards a police officer came into the room where P. was being held and told him that they were going to the scene of the 2007 burglary. P. stated that Sergey Lykov was not with them during this visit and that he had not seen him again afterwards. P. was finally taken to a temporary detention centre, where he was examined by a doctor who noted several physical injuries (bruises and grazing on his arm). P. learned later that Mr Lykov had thrown himself out of a window. 9. On 7 September 2009 a decision (постановление о приводе) was issued ordering P.’s arrest for the purpose of questioning him as a witness. 10. On 9 September 2009 police officers found P. in a street in Voronezh, in the company of Sergey Lykov. They asked the two friends to accompany them to the police station. Mr Lykov was invited for the purpose, in particular, of “provid[ing] useful information”, in line with section 11 § 4 of the Police Act of 18 April 1991, then in force. Sergey Lykov accepted the invitation of his own free will. 11. After discussions with police officer T. at the police station, Sergey Lykov decided to confess to a theft purportedly committed on 4 September 2009, and provided a written statement to that effect. T. informed Mr Lykov of his constitutional right not to incriminate himself. 12. At 6.50 p.m., after having finished writing his confession, Sergey Lykov suddenly threw himself out of the open window of T.’s office, which was on the fifth floor. 13. At 7.50 p.m. Mr Lykov arrived at hospital with an emergency medical assistance team. He died at 1.10 a.m. on 10 September 2009. 14. Sergey Lykov’s cousin I., who had had no news of him, carried out a search and on 10 September 2009 she finally found his corpse in the Voronezh morgue. After examining the body, I. noted that it had signs of numerous physical injuries, in particular a haematoma above the left eyebrow, facial injuries and haematomas on the wrists. 15. On 13 September 2009 I. wrote to the Prosecutor General of Russia, requesting that an investigation be opened into the death of Sergey Lykov. She informed the Prosecutor that her cousin had been arrested on 9 September 2009 while he was with his friend P. 16. On 22 September 2009 police officer B. from the Tsentralny district police station in Voronezh issued a decision refusing to open a criminal investigation into the supposed theft, on the street, of a mobile telephone, to which Sergey Lykov had confessed: B. noted that the avowed offence of theft had never been recorded in the registers of complaints by victims of offences, which were held by the police. 17. One hour after the incident (at 8 p.m.), an investigator, Ya., from the Voronezh Leninskiy district Investigation Committee arrived on the scene and examined the premises, in particular Office no. 55, from where Mr Lykov had fallen. The investigator seized from the scene a gas mask and a telephone, as well as the sheet of paper with Sergey Lykov’s written confession. She indicated that she had not found traces of blood in the office, but only on the grass area below the window. 18. By a decision of 21 September 2009, investigator L. from the same department refused to open a criminal investigation into the victim’s death. Referring to Article 24 § 1 (1) of the Russian Code of Criminal Procedure, he concluded that no offence had been committed. 19. The investigator summarised the explanations provided by police officer T., who stated that: – at 3 p.m. on 9 September 2009 Sergey Lykov and his friend P. had been taken to the police station by police officers S. and F.; the second individual (P.) was being sought on suspicion of theft; – during an interview between T. and Mr Lykov, the latter had confessed voluntarily to a theft. Although he had started writing a confession, Mr Lykov suddenly stood up and climbed onto a chair, then onto a table which was beside the open window, and then finally jumped from this window; – T. had rushed to prevent him from jumping, but he was too late; – no police officer had struck Sergey Lykov or had forced him to confess to the offence. According to T., Sergey Lykov had no physical injuries; – during the interview Mr Lykov had been calm, but he complained to T. that his life was difficult, since he had to care for his ill mother. 20. The investigator also summarised the explanation provided by police officer Sa., who stated that: – at 2 p.m on 9 September 2009 while on patrol in the city, he and two other police officers had seen two individuals on a scooter. Since they had information that an individual suspected of theft was moving about on a scooter, they had stopped the persons concerned for an identity check. They had invited Sergey Lykov and P. to accompany them to the police station and they had agreed; – on arrival at the police station, Mr Lykov and P. had been separated. Sa. and F. had interviewed P., while T. had had a conversation with Mr Lykov; – on entering T.’s office at a later point, Sa. was able to note that Sergey Lykov was not handcuffed and had not been struck. He had heard Mr Lykov confess to the theft of a mobile telephone; – he had not heard Sergey Lykov complain of ill-treatment of any kind; – later he had learnt that Mr Lykov had attempted to take his own life. 21. The investigator also noted that in response to his questions, police officer S. had denied any involvement in ill-treatment of Sergey Lykov. 22. At the same time, the investigator noted the statements made by P., to the effect that: – between noon and 1 p.m. on 9 September 2009 he and Sergey Lykov had been in the city centre when police officers approached, introduced themselves and asked him [and Sergey Lykov] them to accompany them to the police station. They had agreed; – at the police station, he and Sergey Lykov had been separated and placed in different offices. Shortly afterwards, when passing in the corridor, he had seen Sergey Lykov sitting at a table writing something. He had not seen Sergey Lykov being struck, had not heard him crying out, and had not noticed any physical injury on his person; – he had heard Sergey Lykov complain of heart pains, but never refer to an intention to commit suicide. 23. The investigator took note of the statements by the applicant, and also of close relatives of the victim, to the effect that he had never expressed thoughts of suicide. 24. The investigator noted the presence in the case file of the written confession drawn up by Mr Lykov shortly before his death. 25. Relying on the information communicated by the hospital in which Mr Lykov had been treated after his fall, the investigator established that death had resulted from Mr Lykov’s fall from the fifth floor. No injuries indicating kicks or punches, or the use of handcuffs, had been found on the corpse. 26. Lastly, the investigator noted the contents of the report from the on-site inspection conducted on 9 September 2009 (see paragraph 17 above). 27. On 28 June 2010 the decision of 21 September 2009 was set aside by a hierarchically superior civil servant, who ordered an additional investigation, noting, in particular, that it was necessary to: – find witnesses who could confirm that Sergey Lykov had suicidal thoughts; – verify that the police officers who had taken Sergey Lykov to the police station had acted in accordance with the law; – consider whether the police officers who had not ensured the victim’s safety inside the police station bore any criminal liability. 28. In the meantime, on 27 October 2009 an autopsy of the body was carried out on the orders of investigator L. and a forensic report was drawn up. In that document, the forensic medical expert noted that death had resulted from multiple fractures to the head, chest and spine, and to the base and dome of the skull. According to the expert, the location of the injuries identified, and the preponderance of internal over external injuries, led to the conclusion that those injuries had originated in [Mr Lykov’s] fall from the fifth floor. The expert concluded that there was no cause-and-effect relationship between the other injuries (hematomas and scratches on the trunk and the lower and upper limbs, namely a hematoma in the fold of the right elbow measuring 4 x 3 cm; a scratch on the right forearm measuring 6 x 0.7 cm; a 4.5 x 2 cm hematoma on the right carpus; a hematoma on the left shoulder measuring 18 x 14 cm, on which there were scratches of 5 x 2.5 cm; a hematoma on the left knee measuring 7 x 6 cm, on which there was a scratch of 1.5 x 1 cm; and an oval-shaped scratch on the left ankle measuring 2 x 1.5 cm) and the death. As to the question of whether there were traces of a struggle or self-defence, the doctor indicated that it was generally accepted in forensic medicine that injuries to the arms and wrists were to be classified in that way. Thus, he noted the presence of a bruise on the right carpus and a scratch on the right forearm. He added that he was unable to ascertain how those injuries had been sustained. Lastly, the doctor noted that the corpse had been deposited in the morgue unclothed. 29. By a decision of 8 July 2010, investigator Ko. from the same department again refused to open a criminal investigation. In his reasoning, he quoted from the statements given by police officers T., Sa. and S., by witness P., and also by the applicant and the deceased’s close relatives, already cited in the decision of 21 September 2009 (see paragraph 18 above). 30. The investigator also questioned certain individuals who had got to know Sergey Lykov in a café where they drank alcoholic beverages together. Those persons explained that when Sergey Lykov drank alcohol he became talkative and that, in this intoxicated state, he complained about a lack of money and difficulties with his invalid mother. He had also confided to his companions that he had committed thefts and that, were he arrested, he “would harm himself”. 31. The investigator also noted a directive, classified as secret, for the attention of police officers. According to that directive, the police were not personally responsible for the life and health of individuals who had freely consented to attend a police station for an interview, “except in the event of violation of the rights and freedoms of citizens proclaimed in the Russian Constitution”. Regard being had to that directive and the facts noted, the investigator concluded that officer T. could not be held responsible for the offence of negligence. 32. The investigator concluded that Sergey Lykov’s death had been the result of a voluntary act on the latter’s part. In consequence, the investigator refused to open a criminal investigation against the police officers F., B., Sa. and T. for an abuse of power, on the grounds, firstly, that Sergey Lykov’s arrest had not been illegal, and, secondly, that the police officers had not ill-treated him. He also concluded that there were no grounds for prosecuting the police officers for homicide, assault or incitement to suicide, given that Sergey Lykov’s death “had not been violent”. 33. On 11 February 2011 the applicant lodged a judicial appeal against that decision. She complained, inter alia, that her son had been placed in detention without this fact being properly recorded, and that, in consequence, her son had been deprived of legal assistance. Equally, she submitted that the investigation carried out had been incomplete and focused on a hypothesis that was favourable to the police officers. She criticised the investigative authorities for failing to conduct a forensic examination of the gas mask seized in the police station in order to obtain genetic material, including perhaps that of her son. According to the applicant, a handwriting expert’s report should also have been commissioned in order to determine her son’s psychological state when he wrote the confession. Further, referring to the autopsy report, which stated that the corpse had injuries that could be interpreted as traces of a struggle or self-defence, the applicant accused the authorities of failing to explain the origin of those injuries, and the cause of her son’s death. 34. On 18 April 2011 the Leninskiy District Court of Voronezh upheld the contested decision. In its reasoning, the court reiterated the arguments set out in the investigator’s decision and considered that the investigation had been complete and thorough. In response to the applicant’s arguments, the court expressed the opinion that a handwriting analysis was unnecessary, since the deceased’s family had confirmed the handwriting’s authenticity. Equally, a DNA examination of samples from the gas mask was unnecessary, since Sergey Lykov’s death had not resulted from suffocation. Thus, the court concluded that there was no evidence in support of the idea that the deceased had been subjected to ill-treatment by the police officers or that he had been arrested or detained unlawfully. 35. On 11 August 2011 the Voronezh Regional Court upheld the decision, on appeal, for the same reasons. 36. On 11 October 2012 the applicant’s lawyer sent a letter to the head of the Investigation Committee of Russia, asking him to open a new criminal investigation into the death of Mr Lykov and to entrust this investigation to the department for investigations into offences committed by State employees of the armed forces, a department that was part of the Investigation Committee of Russia in the Tsentralny federal constituency. The lawyer expressed the fear that if the requested investigation were to be carried out by investigators from the Voronezh regional department of the Investigation Committee, that investigation would be ineffective. She argued that, without having available to them locally-based agents to gather the necessary information, the investigators from the latter department would have no choice but to use officers from the Ministry of the Interior, among whom might be those involved in the victim’s death. 37. On 14 November 2012 the Voronezh regional department of the Investigation Committee dismissed that request, considering that the decision of 8 July 2010 had been in accordance with the law and that there were no grounds for revoking it and opening a criminal investigation. 38. On 10 September 2009, the day after his arrest, P. was taken to a temporary detention centre (“IVS”). During his admission, a doctor’s assistant noted the following physical injuries: a bruise on the left shoulder-blade, scratches on the elbows and knees, and a bruise on the right ear. The medical assistant drew up a report recording the injuries and noting that they were the result of a road-traffic accident that had occurred on 9 September 2009. The medical examination was carried out in the presence of police officers who had participated in the beating. According to P., it was the police officers who provided the medical assistant with the road-accident version of events, while he himself, for fear of reprisals, had been obliged to confirm it. 39. On 11 September 2009 P. was transferred to remand prison no. 1 in Voronezh. On admission, he was examined by a doctor who found the same injuries as those observed in the IVS. 40. On an unspecified date in September 2009 P. lodged a complaint about the alleged ill-treatment at the police station. According to P., this complaint led to him being taken on the following day to the police station, where he was beating in reprisal. Then – again according to his submissions –, P. withdrew his complaint in fear for his life when investigator Ya. came to the remand prison to question him about the circumstances of the ill-treatment. According to P., in response to his question about possible consequences for the police officers involved in beating Mr Lykov and himself, investigator Ya. replied that, in any event, there had been none. 41. On 5 October 2009 inspector Ya. from the Voronezh regional department of the Investigation Committee issued a decision refusing to open a criminal investigation. She recounted the explanation provided by police officer Sa., who had denied any ill-treatment, and, noting P.’s withdrawal of his complaint, concluded that no ill-treatment had occurred. 42. In the meantime, the criminal investigation against P. continued, and resulted in an examination on the merits by the Voronezh regional Court. At the public hearing on 1 February 2011 P. made a statement. He withdrew the account given by him in the context of the investigation into the death of Sergey Lykov. P. described the events of 9 September 2009 as they are set out in paragraphs 6-8 of the present judgment. He added that police officer S. had threatened him if he were to withdraw his confession to the thefts or make statements about the events surrounding the arrest and death of Mr Lykov. He added that S. had beaten him again prior to the court hearing concerning his placement in pre-trial detention, in order to prevent him lodging a complaint before the judge. He also alleged that he had been subjected to unprovoked attacks by the administration of the remand prison in which he was detained. P. asked to be placed under protection in his capacity as a witness of the ill-treatment inflicted on Sergey Lykov by police officers. He also asked that criminal proceedings be brought against police officer S. for abuse of power and for the murder of Mr Lykov. P. suggested that the criminal investigation into the death be reopened. 43. The judge ordered that P.’s written statement be included in the case file. With regard to P.’s requests in respect of S. and Mr Lykov, the judge replied that the latter’s death was unrelated to the ongoing trial; as for S., he was not a party to the trial proceedings. In consequence, she dismissed those requests. 44. At one of the subsequent hearings P. complained that, after the above statement, the remand prison’s administration threatened him. 45. On 30 June 2011 the prosecutor for the Leninskiy district of Voronezh set aside the decision refusing to open a criminal investigation in respect of P.’s supposed torturers. The prosecutor ordered an additional investigation. The Court has not been informed of the outcome of this investigation. 46. After serving his sentence, P. was released. He submits that he has received several threats in connection with the present case. For fear of reprisals, he moved to Sweden. In his letter of 20 April 2014 to the Investigation Committee, sent from abroad, P. offered to act as a witness, but he was never questioned. 47. On 23 December 2013 a hierarchically superior State employee in the Voronezh regional department of the Investigation Committee set aside the decision of 8 July 2010, noting that the department had received new information concerning the death of Sergey Lykov from the European Court of Human Rights. He ordered an additional investigation, in particular so that P. could be questioned and his allegations of ill-treatment verified. 48. On 10 January 2014 the deputy head of the Voronezh regional department of the Investigation Committee ordered the opening of a criminal investigation within the meaning of Article 146 of the Code of Criminal Procedure. In his reasoning, he noted that Ms Lykova’s application, which was being examined by the European Court of Human Rights, contained elements suggesting that Mr Lykov had been subjected to ill-treatment by the police officers. 49. On 16 January 2014 investigator L. from the Investigation Committee ordered a second forensic medical report, to answer, inter alia, the following questions: whether Mr Lykov’s body showed injuries and, if so, where; if the body showed injuries resulting from a struggle, ill-treatment, the use of handcuffs or restraint of the upper or lower limbs using adhesive tape; and whether there were signs of electrocution. The Government have not indicated whether that medical report was drawn up. In any event, no expert report was added to their observations. 50. The investigator questioned police officers Sa. and F.; the first reiterated the explanation he had provided in 2009 (see paragraph 17 above), and the second gave similar explanations. The investigator also questioned a certain V., who allegedly stated that he occasionally drank alcoholic beverages in Sergey Lykov’s company and indicated that the latter was a drug addict who committed thefts to obtain money, and that he had spoken to him about his difficulties with his invalid mother. According to V., Sergey had confided in him that, if he were arrested, he “would harm himself”. 51. The investigator questioned the deceased’s grandmother and cousin, who stated that, to their knowledge, Sergey did not take drugs, did not abuse alcohol, and had never expressed thoughts of suicide. 52. On 13 January 2014 the investigator issued a decision granting the applicant victim status. 53. On 27 October 2009, at the close of an internal investigation into the police officers’ conduct, the Internal Security Service of the Voronezh regional department drew up a report; its conclusions can be summarised as follows: referring to the decision of 21 September 2009 (see paragraph 17 above), the regional department considered that Sergey Lykov had indeed taken his own life and that no fault on the part of the police officers had been established. At the same time, the Service described as a lack of professionalism the fact that police officer T. had not taken sufficient care in controlling Mr Lykov’s conduct, a shortcoming that had enabled the latter individual to throw himself from the window.