CASE OF IVAN KUZMIN v. RUSSIA
Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 5-1;Violation of Art. 6-1
Anatoly Kovler;Ganna Yudkivska;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
6. The applicant was born in 1973 and lives in Stavropol. 7. At the material time the applicant was a physical education teacher in School no. 15 in Stavropol. 8. At about 10 a.m. on 5 June 2001 police officer B. and trainee Ch. went to the applicant's school and asked him to go with them to the police station to give an explanation with regard to a complaint by a parent, alleging that the applicant had hit his son. The policemen did not produce a summons to appear or an arrest warrant. The applicant agreed to go with them. 9. On arrival at the police station the applicant saw a red Moskvich car near the entrance and three men nearby. One of them was police officer P. and another was subsequently identified as former chief of police G. 10. B. and Ch. were the first to go up the stairs and into the office. The applicant followed them and G. was behind him. G. pushed the applicant in the back. The applicant turned round and asked him why he had done that. G. replied that since the applicant considered himself tough enough to beat his pupils, he should take him on instead. With these words G. hit the applicant twice in the chest with the palm of his hand. Then the applicant was pushed into an office and G. told him that he had two options, either to apologise to the pupil's father and pay damages, or to be reported to the Ministry of Education and fired. In reply, the applicant denied that he had ever beaten the pupil. G. said that he had no time to deal with the matter and left, while B. and Ch. stayed. 11. Officer B. took the applicant's statement and asked him to sign it. The applicant spotted an incorrect recording of his words, crossed a sentence through and signed the paper. B. got angry, jumped up from the table and hit the applicant in the face. Protecting his face with his hands, the applicant turned round to leave the office. 12. B. ordered Ch. to stop the applicant, search him and put him in a cell, because their discussion was not yet over. Ch. pulled the applicant out of the office into the hallway and put him against the wall. The applicant told B. that he needed to call the school and tell them that he would be late. B. and Ch. started beating him; the applicant fought back. B. stepped behind his back, bent his arms and pushed his head down, then made him lie on his stomach and handcuffed him. Claiming that the applicant had broken his glasses, Ch. kicked him twice in the left shoulder. B. put the applicant in a cell behind bars and locked himself in the office with Ch. After a while P., a former classmate of Ch., arrived at the police station. 13. B. and Ch. took the applicant to T., an investigator with the Promyshlennyi district prosecutor's office, where he stayed until 5 p.m. The applicant was then allowed to call the school. At 5.15 p.m. the headmaster and two teachers picked him up. The applicant was taken to city hospital no. 4 by ambulance. He underwent treatment in hospital until 28 June 2001. 14. On 6 June 2001 the applicant lodged a complaint of ill-treatment in police custody and unlawfulness of his detention there with a district prosecutor's office. He submitted, inter alia, that police officers had beaten him, handcuffed him and put him in a cell in order to make him confess to a crime he had not committed. 15. On the same day a medical expert from the Stavropol Bureau for Forensic Medical Expert Studies examined the applicant. According to report no. 1560, the expert observed the following injuries to the applicant's body: an abrasion on the right cheekbone, a moderate swelling of the left temple, cheek and periorbital (eye cavity) area, purple bruises on both eyelids, several bruises on the left shoulder blade, abrasions on the left shoulder and right wrist, and neck instability. In the expert's assessment, the injuries had been caused by the impact of hard blunt objects, probably on 5 June 2001. The expert took into account that before the incident of 5 June 2001 the applicant had suffered from epileptic seizures and post-traumatic encephalopathy, noting that his pre-existing condition had nothing to do with the injuries sustained on that day. 16. On 13 September 2001 the investigator issued a decision refusing to institute criminal proceedings in respect of the applicant's allegations of ill-treatment. Relying solely on the statements by B., Ch. and P., the investigator found that while at the police station the applicant had used obscene language to them and had been warned that he would be detained for insulting State officials. He had continued to engage in verbal abuse and was then told that he was under arrest. While trying to escape, the applicant had hit Ch. and broken his glasses. The police officers had applied physical force to restrain the applicant and handcuffed him. The cell within the police station was locked and senior operational officer Bi., who had the keys, was away at that time. The investigator concluded that B. and Ch. had acted lawfully and that the applicant had not been placed in detention. 17. On 14 March 2002 the prosecutor at the Prosecutor General's Office quashed the decision of 13 September 2001 and ordered a more thorough investigation. In particular, he directed that confrontations be arranged between P. and the applicant and between Bi. and the applicant, and that other people who might have seen P. on 5 June 2001 be identified and examined. 18. On 7 May 2002 the investigator issued a new decision refusing to institute criminal proceedings in respect of the ill-treatment of the applicant. It repeated word for word the decision of 13 September 2001, the only difference being that it was not stated whether the applicant had actually been placed in the cell. 19. The applicant contested the prosecutor's decision before a court. On 29 August 2002 the Promyshlennyi District Court dismissed his complaint. However, on 27 November 2002 that judgment was quashed on appeal by the Stavropol Regional Court, which ordered a new examination of the matter by the District Court. 20. On 21 January 2003 the District Court allowed the applicant's complaint, finding that the prosecutor's decision had been made prematurely and without detailed analysis of the applicant's submissions. On 16 May 2003 the Regional Court quashed that judgment on appeal, noting that the District Court had breached the principle of equality of arms in that it had not examined police officers B. and Ch. The matter was remitted for fresh consideration. 21. On 18 June 2003 the District Court found that the prosecutor's decision of 5 May 2002 refusing to institute criminal proceedings had been unlawful, because it had been based on the materials of the criminal case against the applicant rather than on the applicant's own submissions. The District Court directed that the prosecutor carry out an appropriate inquiry into the applicant's allegations of ill-treatment. On 13 August 2003 the Stavropol Regional Court upheld that judgment on appeal. 22. On 10 October 2003, with reference to the statements made by B. and Ch., the investigator refused to open a criminal investigation into the applicant's allegations. On 27 October 2003 the supervising prosecutor quashed the decision of 10 October 2003 for failure by the investigator to carry out an inquiry properly, and ordered further examination of the matter. 23. On 31 October 2004 the investigator at the Promyshlennyi District Prosecutor's Office, issued a new decision refusing to institute criminal proceedings in respect of the alleged ill-treatment of the applicant. He heard statements from the headmaster and two teachers from the applicant's school, who testified that they had seen an abrasion on his temple and bruises on both wrists when they arrived at the police station on 5 June 2001. B. and Ch. maintained that the applicant had attacked Ch. when trying to escape after B. had told him that he would be detained for insulting a State official. P. stated that he had seen the applicant hitting Ch. in the face. G. denied that he had hit the applicant on the stairs or that he had told him to apologise to the pupil's father or else face dismissal. The investigator found that the use of force and handcuffs against the applicant had been lawful because the applicant had committed “a crime” against Ch. The injuries had been caused to the applicant when putting a stop to his criminal behaviour, detaining him and neutralising his resistance. 24. The applicant contested the investigator's decision before a court, exposing inconsistencies in the statements by B., Ch. and P. He said that he had not committed any crime and that there was no evidence that he had. 25. On 24 November 2004 the District Court allowed the applicant's complaint and set aside the investigator's decision of 31 October 2004 as unlawful and unreasoned. The District Court found that there were discrepancies in the statements by the police officers which called for a more detailed investigation. On 2 March 2005 the Regional Court upheld that judgment on appeal. 26. According to the Government, on 28 April 2005 the investigator again refused to open a criminal investigation. His decision was quashed by the District Court on 19 January 2006. On 4 October 2007 the case file was transferred to the Regional Prosecutor's office. On 27 October 2007 the investigator in charge of the case decided to close the inquiry. His decision was quashed by his superior on 18 March 2008 and the inquiry was resumed. It appears that the proceedings are still pending. 27. On 13 August 2001 the investigator instituted criminal proceedings against the applicant. He was charged with assaulting police trainee Ch. on 5 June 2001. 28. On 19 November 2001 the supervising prosecutor closed the case against the applicant. The prosecutor found that the only evidence against the applicant was the statements by B. and Ch. The statement made by P. was not reliable because he said that he had gone to the police station on 6 June rather than 5 June, and because, in the applicant's submission, P. had only appeared after the fight in the hallway was over. 29. On 14 March 2002 the supervising prosecutor quashed the decision of 19 November 2001. The proceedings against the applicant were reopened and the case file was transferred to the District Court for trial. 30. On 7 May 2002 the District Court fixed the first hearing for 10 June 2002. 31. The Government provided the following information in respect of the development of the trial: 32. On 26 May 2003 the District Court found the applicant guilty as charged and sentenced him to one year's imprisonment, suspended. The guilty verdict was founded on the statements by Ch., B., P. and Bi., the medical expert report of 6 June 2001 which recorded injuries to Ch.'s face and neck, and physical evidence, namely Ch.'s broken glasses. With respect to the applicant's injuries, the District Court determined that they had been caused unavoidably when his violent behaviour towards Ch. was stopped. The District Court also noted that there was no detention cell at the police station, but a cupboard, which remained locked at all times, officer Bi. being the key-holder. 33. On 1 August 2003 the Regional Court quashed the conviction, finding substantial deficiencies in the District Court's reasoning, and thus determining that the District Court had not established legal grounds for applying handcuffs and physical force to the applicant. Although B. had claimed that he had intended to arrest the applicant for insulting a State official, that claim was not supported by any report of an administrative offence. Furthermore, the District Court had not verified the lawfulness of B.'s bringing the applicant into the police station, given that his superior had merely asked B. to make enquiries at the applicant's school. In the Regional Court's view, the District Court should have taken into account that liability for assault on a State official only arises in the event of resistance to lawful demands by that State official. 34. As regards the applicant's injuries, the Regional Court pointed out that the District Court had not elucidated the discrepancies in the statements by B. and Ch. as to how they had been caused. They had claimed that the applicant had banged his head against the floor, walls and door, but this would not have been possible if the applicant had been lying handcuffed on the floor. 35. Finally, the Regional Court noted that the District Court had premised its findings on the medical report concerning Ch. That report had previously been declared inadmissible evidence because the examination had already been carried out on 6 June 2001 whereas the criminal case against the applicant was instituted only on 13 August 2001. 36. On 19 August 2003 the District Court set down the trial for 2 September 2003. The Government provided the following information with regard to the development of the proceedings: 37. On 16 May 2005 the District Court again found the applicant guilty as charged and sentenced him to one year's imprisonment, suspended. It relied on the same evidence as before. 38. On 26 August 2005 the Regional Court quashed the conviction, noting that the District Court had listed the evidence submitted by the defence but had not explained why it had rejected that evidence. Moreover, the District Court's finding as to the reliability of P.'s testimony was not sufficiently reasoned, given that P. had been Ch.'s classmate for several years and that they had initially attempted to hide that fact from the investigation. The District Court had not ascertained the legal basis for the applicant's detention at the police station after he had given the statement on the matter in connection with which his attendance had been required. No report of an administrative offence of insulting a State official had been compiled and a decision had been made not to bring a criminal prosecution against the applicant for that offence. Accordingly, the District Court should have clarified under what lawful order the police officers had detained the applicant at the police station. Finally, the Regional Court pointed out that the District Court had failed once again to consider the admissibility of the medical report concerning Ch.'s injuries. The Regional Court remitted the matter for fresh examination. 39. On 30 September 2005 the District Court fixed the trial for 12 October 2005. The court chose to proceed without a preliminary hearing of the matter. The applicant appealed. By a final decision of 22 February 2006 the Regional Court upheld the decision of 30 September 2005 on appeal. The Government provided the following information with regard to the development of the proceedings: 40. On 25 September 2007 the trial was completed at the District Court. 41. On 1 October 2007 the District Court acquitted the applicant. The court found, inter alia, that B. and Ch. had had no legitimate grounds to take the applicant to the police station or to question him there and that Ch. had sustained injuries as a result of the applicant's resistance to unlawful actions by the police officers. Furthermore, the court disregarded the testimonies by witnesses B., Ch., P. and Bi. noting that they had made false statements in order to evade responsibility for their unlawful acts. 42. According to the Government, on 17 December 2007 the Regional Court upheld the applicant's acquittal on appeal. 43. The Civil Code of the Russian Federation provides as follows: “1. Damage caused to a person as a result of unlawful conviction, unlawful criminal prosecution, ... unlawful pre-trial detention ..., unlawful administrative arrest... be compensated [by the State] ... in full, irrespective of the fault of the [police], prosecutor's office or the court.” “Compensation for non-pecuniary damage shall be afforded irrespective of the fault of the tortfeasor if: ... the damage is caused to a person as a result of his unlawful conviction, unlawful criminal prosecution, unlawful pre-trial detention ..., unlawful administrative arrest ...” 44. The Civil Code provides that the damage caused by an unlawful criminal prosecution should be compensated irrespective of the fault of the tortfeasor (that is, the State agency which decided to prosecute, detain etc.). However, the notions of “unlawful” prosecution or detention (see Article 1070) are not developed in the relevant provisions of the Civil Code.