CASE OF SITNIKOV 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)
Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
5. The applicant was born in 1988 and lives in the village of Trudobelikovskiy, Krasnodar region. 6. At around midnight on 15 August 2007 the applicant, who was 19 years old at the time, and B. were taken in a police patrol car to the police station of the Syktyvdinskiy district of the Komi Republic for an examination of allegations of assault made against them by two individuals, in particular of the sexual assault of a woman. The police intervened immediately after the alleged assaults. 7. According to the applicant, at the police station investigator N. demanded that he confess to the crime, and threatened him with illtreatment and rape in a cell at the pre-trial detention facility. The applicant refused to sign self-incriminating statements and was allegedly subjected to ill-treatment which he described as follows. He was taken to a cell where two policemen held his hands while a third policeman kicked him in the stomach leaving a boot print on his Tshirt; the two policemen then threw the applicant to the floor, face down. Thereafter, the policemen took the applicant to N.’s office, where he signed a “statement of surrender and confession” (явка с повинной). He was then taken to the toilet by a policeman who started insulting him. When the applicant responded, the policeman allegedly sprayed gas in his eyes and hit him several times with a rubber truncheon. The policeman then pushed the applicant into the cell so that the applicant hit his head against the wall and fell to the ground. 8. According to the police record drawn up by operative police officer K., the applicant signed the “statement of surrender and confession” at 2.35 a.m. on 16 August 2007. 9. Investigator N. instituted criminal proceedings against him and B. and ordered a forensic medical examination of the applicant to establish, in view of the nature of the crime, whether the applicant had any pathology which would prevent him from performing sexual acts. 10. The applicant was taken to a forensic medical expert who found that the applicant had the following physical injuries (examination report of 16 August 2007): (i) two abrasions on the left side of the forehead, measuring 2.5 cm by 0.7 cm and 0.7 cm by 0.5 cm; (ii) an abrasion on the bridge of the nose, measuring 4.5 cm by 1.5 cm; and (iii) a bruise around one eye, measuring 3 cm by 4 cm. The applicant explained to the expert that his injuries had been caused by the three police officers who had physically assaulted him at the police station in the night of 15 August 2007, in particular by hitting his face against the wall. The expert concluded that the bruise and abrasions on the applicant’s face could have been sustained in the circumstances and at the time alleged by the applicant. 11. After the medical examination the applicant was taken back to the police station, where investigator N. told him that he must come back at 3 p.m. that day for questioning as a suspect and released him. His arrest was not recorded. 12. On the same day the applicant complained to the Ministry of the Interior of the Republic of Komi that he had been ill-treated at the police station. He also asked the traumatology unit of the hospital in Syktyvkar to record his injuries. According to the hospital medical records, the applicant had the following injuries: (i) an acentric fracture of the nose; (ii) a bruise on the forehead; and (iii) abrasions on the forehead. 13. On 17 August 2007 the applicant was arrested, questioned as a suspect and detained on remand by a court. 14. On 20 August 2007 the applicant’s mother complained to the Syktyvdinskiy district prosecutor’s office that the applicant had been illtreated at the police station. In her complaint she stated, inter alia, that at around noon on 16 August 2007 the applicant had returned home from the police station with bruises and abrasions on his body, and a print from a large boot on his T-shirt in the area of his stomach. The applicant had told her that he had been ill-treated at the police station. 15. On 29 August 2007 the prosecutor issued a refusal to open a criminal case against the lawenforcement officers, finding, in accordance with Article 24 § 1 (2) of the Code of Criminal Procedure, that none of the elements of the crimes provided for in Articles 286 and 302 of the Criminal Code (on abuse of powers and forced confessions respectively) had been present in respect of the actions of investigator N. or police officers S.I., K.L., S.A., Sh., and K.N. The decision relied on the following statements. 16. Investigator N. stated that he had interviewed the applicant after he had signed his “statement of surrender and confession”. The applicant had not complained of any physical violence against him. After the applicant’s forensic medical examination N. had talked to the applicant again and then released him. N. had not seen any injuries on the applicant, or a footprint on his T-shirt, during his interview or prior to his release from the police station. N. had heard about the applicant hitting his head against the wall later on from K.L. Investigator N. denied that the applicant had been put under any physical or psychological pressure. 17. The police officers denied subjecting the applicant to any illtreatment. S.I. stated that he had learned from K.L. that the applicant had struck his head against the wall. K.L. stated that he had learned from duty officer S.A. about the applicant striking his head against the bars of a cell. S.A. and Sh. stated that they had seen the applicant bang his head repeatedly against the bars and then against the wall in a room of the duty officer. While banging his head against the wall the applicant was allegedly shouting that he would complain to the prosecutor’s office that police officers had beaten him up. 18. The applicant’s mother challenged the refusal to open a criminal case against the police officers and investigator N. On 18 January 2008 the Syktyvdinskiy District Court dismissed her complaint. 19. On 4 March 2008 the Supreme Court of the Komi Republic granted an appeal lodged by the applicant’s mother and quashed the District Court’s decision, noting that no assessment had been made of the contradiction between the medical expert’s conclusions and the police officers’ allegations of the applicant’s self-harm. Nor had the court assessed the applicant’s medical record concerning the nose fracture, the allegation of the applicant having been kicked and having a footprint from a boot on his Tshirt, the presence of a video surveillance camera at the police station which should have recorded the incident, or statements by B. that he had heard the applicant screaming at the police station. The District Court had not taken into account circumstances which could have significantly influenced its conclusions and had not given reasons why, in so far as the conflicting evidence was concerned, it had given preference to some evidence whilst rejecting other. A fresh examination of the applicant’s mother’s appeal was ordered by a different composition of judges of the same court. 20. On 21 March 2008 the Syktyvdinskiy District Court ruled that the refusal to open a criminal case of 29 August 2007 had been unjustified for reasons largely similar to those cited by the Supreme Court. The court ordered the investigation authorities to rectify those deficiencies. 21. On 23 April 2008 the deputy prosecutor of the Komi Republic overruled the refusal of 29 August 2007 to open a criminal case. 22. On 24 April 2008 the investigative committee of the prosecutor’s office of the Komi Republic issued a new refusal to open a criminal case against the police officers and investigator N., finding, in accordance with Article 24 § 1 (2) of the CCrP, that none of the elements of the crimes provided for in Articles 130, 286 and 302 of the Criminal Code (on insulting behaviour, abuse of powers and forced confessions respectively) were present in their actions. It was noted that, according to information received from the Syktyvdinskiy district police department, the video surveillance recordings of the room of the duty officer and the cells for administrative offenders for the period from 15 to 16 August 2007 had not been preserved. Such records were normally kept for three days and then automatically deleted. It was concluded that the applicant had caused injuries to himself at the police station with the purpose of avoiding criminal liability for the crime which he had committed. 23. On 24 April 2008 the applicant was found guilty by the Syktyvdinskiy District Court. 24. The applicant’s mother challenged the second refusal to open a criminal case against the police officers and investigator N. 25. On 16 June 2008 the Syktyvdinskiy District Court dismissed her appeal. It examined the explanations given by the police officers and investigator N., and held that the allegations regarding the applicant’s illtreatment had not been substantiated. The court also noted that the allegation regarding the applicant’s forced confession had been examined during the applicant’s criminal trial and had been dismissed as unfounded in the judgment of 24 April 2008. The court further noted that the trial court had examined and endorsed the refusal of 24 April 2008 to open a criminal case against the police officers. Finally, the court concluded that the applicant’s allegations of ill-treatment had been designed to discredit the lawenforcement authorities. On 18 July 2008 the Supreme Court of Komi upheld that decision on appeal. 26. The judgment of 24 April 2008 in the applicant’s criminal case was subsequently quashed and remitted to the first-instance court for fresh examination. On 13 November 2008 the Syktyvdinskiy District Court convicted the applicant of sexual assault, specifially holding the victim to enable B. to sexually assault her, and sentenced him to four years and three months’ imprisonment. The applicant denied his guilt at trial, asserting that he had signed the “statement of surrender and confession” under physical pressure from the police officers and psychological pressure from investigator N. The trial court rejected the applicant’s arguments, relying on the refusal of 24 April 2008 to open a criminal case against the police officers and investigator N. The applicant’s “statement of surrender and confession” formed part of the evidence on which his conviction was based, and served as a mitigating circumstance. The applicant appealed against the judgment. 27. On 16 January 2009 the Supreme Court of the Komi Republic upheld the judgment on appeal, stating that it was irrelevant to the criminal case against the applicant whether or not the refusal to open a criminal case into his allegations of ill-treatment had been unfounded.