CASE OF BĒRZIŅŠ v. LATVIA
Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
5. The applicant was born in 1976 and lives in Riga. 6. The Department for the Combat of Organised Crime (Organizētās noziedzības apkarošanas pārvalde) received information regarding the applicant’s alleged involvement in the sale of drugs. The department initiated a covert investigative measure, namely a test purchase of drugs. This measure was carried out on 24 and 26 March 2004. 7. After the test purchase on 26 March 2004 a police patrol unit working with officers from the Department for the Combat of Organised Crime stopped a vehicle being driven by S.I. in which the applicant was a passenger, at about 10 p.m. near Riga city centre. The applicant was apprehended and taken to State Police premises. 8. The applicant submitted that he had been repeatedly hit on the head, hit several times on the back, knocked down on to the pavement and pushed, which had resulted in bodily injuries. He had not offered any resistance. 9. In the Government’s version of events V.V., a police officer, opened the front passenger door and pulled the applicant out of the vehicle by his clothing. The applicant fell on to the edge of the pavement. He was then placed face down on the pavement and handcuffed. 10. The Government noted that while on State Police premises the applicant had complained of chest pain, saying he had heart disease. 11. At around 1.30 a.m. the applicant was transported from the premises of the State Police by the emergency medical service to the hospital. Head of the emergency medical service unit made an entry in form no. 573, as follows: “Abdominal contusion (sasitums). Acute gastritis? Facial contusion with skin abrasions (nobrāzumi).” 12. The applicant was admitted to Riga no. 1 Hospital at 1.33 a.m. The applicant’s medical record indicated the following diagnosis on admission: “Head, thorax and abdominal contusion.” 13. The entry made following the applicant’s examination by a surgeon at 1.35 a.m. indicated the same diagnosis and the applicant’s complaint: “The patient was beaten up during the arrest approximately one and a half hours ago.” 14. Further, at 2.20 a.m. a neurosurgeon recorded that the applicant had an eyelid haematoma around his left eye. The doctor also noted that the applicant had said that during his arrest he had fallen and hit his head in the area of the right eyebrow. 15. At 2.55 a.m. the applicant was referred to be tested for narcotic and psychotropic substances. The applicant was found not to be under the influence of alcohol, narcotic drugs or psychotropic substances. 16. On the same day, between 4.35 a.m. and 5.00 a.m., I.K., a chief specialist from the Department for the Combat of Organised Crime questioned the applicant as a suspect. The applicant indicated that he wished to make a statement in the presence of a lawyer. 17. At 5.51 a.m. the applicant was transferred to a temporary detention facility, where he stayed until 30 March 2004, during which time he did not seek any medical assistance. 18. On 29 March 2004 between 1.30 p.m. and 1.55 p.m. I.K. questioned the applicant in the presence of a lawyer. The applicant made a statement, the record of the relevant part of which is as follows: “... While being arrested on 26 March 2004 [the applicant] was pulled out of the vehicle, a jacket was pulled over [his] head and [he] was pushed on to the ground. [He] then received one to three blows to the head and one blow to the abdomen. [The applicant] does not recall the precise number of blows he received. [He] did not lose consciousness. The blows were [inflicted] with a hard, blunt object.” 19. In the context of the interrogation of the applicant described above, the Government put to the Court that no complaints or requests had been raised by the applicant or his lawyer. Notwithstanding, a forensic examination of the applicant had been arranged. 20. Accordingly, on 29 March 2004 I.K. ordered an expert report to ascertain what injuries had been sustained by the applicant, in view of the applicant’s statement that while being arrested he had been kicked on the body and head. The order stated that it had been issued as part of a criminal investigation of unauthorised acquisition, possession and sale of psychotropic substances. 21. On the same day an expert examined the applicant. In the expert’s report the following information the applicant had provided was recorded: “On 26 March 2004 during the arrest police officers in uniforms placed a jacket over [his] head, hit [him] on the head [and] abdomen with something [and he] fell down. It is impossible to tell with accuracy whether the abrasions on [his] legs were caused by the fall or a blow. [He] had nausea [but] did not vomit. [He] did not lose consciousness ...” The expert’s report of 29 March 2004 described the applicant’s condition as follows: “A haematoma 4 cm x 2.5 cm on the upper eyelid of the left eye ... an abrasion 0.2 cm x 0.1 cm in the middle area of the right cheek ... no visible injuries on the body found ... seven abrasions from 0.2 cm x 0.2 cm to 1.5 cm x 0.8 cm on the front surface of the left knee joint and on the front surface of the left lower leg ... a haematoma 5 cm x 4 cm on the front surface of the left lower leg.” 22. On 29 March 2004 the expert recorded in her report that the applicant’s medical records should be requested from Riga no. 1 Hospital. On 30 March 2004 the Department for the Combat of Organised Crime issued a request to Riga no. 1 Hospital for the applicant’s medical records. 23. On 2 April 2004 the expert added in the same report her conclusions based on the applicant’s examination and the data contained in his medical documentation. In particular: “[The applicant] has the following injuries – a contusion on the head with subdermal haematoma and skin abrasion, and a contusion on the left leg with subdermal haematoma and skin abrasions. These injuries could have been caused by hard, blunt objects. The possibility cannot be ruled out that the injuries were caused in the circumstances indicated in the decision and by [the applicant], and on 26 March 2004. The injuries ... are light injuries, which do not cause short-term health impairment for a period of time of more than six days. The diagnosis of ‘head, thorax and abdominal contusion’ cannot be taken into account in the assessment of the gravity of the injuries, because it has not been affirmed by impartial clinical data, in-patient (stacionārā) inspection and examination (visible injuries are not described in the medical history and were not found in the course of the forensic examination).” 24. The applicant stated in his appeal of 2 April 2004 to the Riga Regional Court (Rīgas apgabaltiesa) against his pre-trial detention that physical force had been applied to him during his arrest, following which he had requested medical assistance at Riga no. 1 Hospital. 25. On 13 April 2004 officer A.Ž. gave a statement in the criminal investigation regarding the test purchase of drugs carried out on 24 and 26 March 2004, and stated that the applicant had been apprehended on 26 March 2004. A.Ž. gave evidence that the applicant had not been apprehended immediately after the purchase, because it was necessary to ascertain whether the applicant had been working with anyone else. 26. On 30 April 2004 the Riga Regional Court rejected the applicant’s appeal against the pre-trial detention and decided to keep the applicant in custody. The Regional Court in the decision referred to the applicant’s argument contained in his appeal, including the following: “... police employees beat up [the applicant] when they arrested him; as a result he needed hospital treatment ... In court [the applicant] and his lawyer ... maintained the appeal ...” 27. On 9 May 2005 the Vidzeme Regional Court (Vidzemes apgabaltiesa) found the applicant guilty of unauthorised acquisition, possession and transport of narcotic and psychotropic substances on a large scale, with intent to sell. He was sentenced to eight years and six months’ imprisonment, as an aggregated term, with confiscation of property and police control for two years. 28. On 16 December 2006 the Criminal Cases Chamber of the Supreme Court (Augstākās tiesas Krimināllietu tiesu palāta) upheld the applicant’s conviction on appeal. Further, on 19 February 2007 the Senate of the Supreme Court (Augstākās tiesas Senāts) rejected the applicant’s appeal on points of law. 29. On 12 March 2007 the applicant made representation to the Vidzeme Regional Court about ill-treatment during his arrest on 26 March 2004. The Regional Court transmitted the request to the Internal Security Office of the State Police (Valsts policijas Iekšējās drošības birojs). 30. The applicant submitted to the Court a copy of a letter from the Internal Security Office of the State Police, dated 25 April 2007. It was sent in response to the applicant’s submission of 12 March 2007, mentioned above. The letter stated that the human resources inspection division had requested information from the emergency medical service about the call made to them on 27 March 2004. However, the applicable regulations required records of emergency calls to be kept for a period of one year. It followed from the applicant’s medical records at Riga no. 1 Hospital that on 27 March 2004 the applicant had been diagnosed with head and thorax contusions and that he had told medical staff that he had fallen and hit his head while being arrested. While in the temporary detention facility between 27 and 30 March 2004 the applicant had not asked for medical assistance. 31. The letter indicated as follows: “... in accordance with section 22(2) of the Law on the Police a police employee could not be held responsible for pecuniary or physical harm, caused within the official authority, to an offender who did not comply or who resisted during arrest.” The answer concluded that State Police employees had not violated the relevant statutes. 32. In April 2007 the Internal Security Office collected reports (ziņojumi) from D.M., A.Ž. and A.K., officers of the Department for the Combat of Organised Crime. 33. D.M., in a report of 24 April 2007, indicated that on the day in question he had been working with a team of traffic police officers. Their task had been to intercept the applicant’s vehicle after the test purchase of drugs. Once they had received information about the vehicle with the applicant as a passenger inside, a traffic police employee had stopped the vehicle and invited the driver to step out. At this time other department officers arrived and arrested the applicant. D.M. could not remember the arresting officer or subsequent proceedings with respect to the applicant. 34. The department officer A.Ž. stated in his report of 11 April 2007 that the applicant’s arrest had been carried out by V.V. He also indicated that the applicant had not been ill-treated. The applicant had complained of heart problems while on department premises and an ambulance had been called. An examination by a doctor revealed no health problems and the applicant was then questioned. 35. In his report of 27 April 2007 department officer A.K. declared that he had arrived at the scene after the applicant had been arrested. A.K. could not remember who the arresting officer was. According to A.K. the applicant had been transported to department premises. Police officers had not ill-treated the applicant in A.K.’s presence and he had not seen any injuries. 36. In addition to these reports, the Internal Security Office of the State Police obtained on 17 April 2007 evidence from the temporary detention unit. This indicated that the applicant had not requested medical assistance between 27 and 30 March 2004. On the same day that office also requested the applicant’s medical file from Riga no. 1 Hospital. 37. Following the applicant’s request of 13 April 2007 to the Prosecutor General to submit information about ill-treatment, a prosecutor took a statement from him on 8 June 2007. The applicant indicated that he wished to provide more details about what had happened on 26 March 2004. The statement included the following: “Late in the evening of 26 March 2004 ... [the applicant] was in the vehicle ... as a passenger ... The vehicle was stopped by traffic police ... [The applicant’s] colleague was invited to the police vehicle ... the passenger door on [the applicant’s] side opened and [he] received a hard blow to the head ... the blow pushed him towards the driver’s seat and [he] heard shouts not to move and received several blows on the back ... the same person who had hit [him then] grabbed [him] by [his] jacket and pulled [him] out of the vehicle. The jacket was placed over [his] head ... One of the blows knocked [him] off his feet, as a result of which [he] fell face down with his abdomen on the edge of the pavement. Thereafter a couple of blows followed on [his] body. Everything happened very fast ... [The applicant] heard people passing by saying ‘What are you doing?’ ... [he] was handcuffed ... in the police vehicle [he] was hit on the body ... [The applicant] would be able to recognise the police officer who inflicted the blows ... No physical ill-treatment was inflicted on him at the police station ... After some time ... [the applicant] felt ill ... [he] even lost consciousness in the police station ...” 38. In the statement the applicant requested that an investigation be conducted and criminal proceedings initiated in respect of the infliction of the injuries, because there had been no reason to resort to violence during the arrest. 39. The statement was sent for decision to the Internal Security Office of the State Police. 40. On 18 June 2007 L.L., a senior inspector of the pre-trial investigation division of the Internal Security Office of the State Police, refused to initiate criminal proceedings. This decision, referred to by the Government, did not elaborate reasons for the refusal. 41. The applicant appealed against the refusal to the Office of the Prosecutor General (Latvijas Republikas Prokuratūras Ģenerālprokuratūra). 42. On 18 July 2007 V.Č., acting as chief prosecutor of the pre-trial investigation and oversight division, quashed the decision as ungrounded and ordered that the Internal Security Office of the State Police conduct an additional inquiry. His finding read: “The decision has been adopted on the basis of an incomplete examination ... without requesting the expert’s report and without clarifying the possible circumstances in which the injuries observed on [the applicant] had been sustained.” 43. On 7 August 2007 the Internal Security Office of the State Police requested information on the identities of the traffic police employees who had been on duty on 26 March 2004 around 10 p.m. and whether they had participated in the applicant’s arrest. It also asked those officers to attend the Internal Security Office. In response, the Internal Security Office was provided on 14 August 2007 with the information that officers B.M. and L.V. had carried out the arrest and that they had been advised to attend the Internal Security Office. 44. During August 2007 the Internal Security Office of the State Police collected explanations (paskaidrojumi) from five officers, A.Ž., D.M. and V.V., officers of the Department for the Combat of Organised Crime, and B.M. and L.V., officers of the police patrol unit. 45. In particular, further statements were taken from A.Ž. and D.M. on 20 August 2007. Their explanations were broadly the same as those they had made previously, on 11 and 24 April 2007 respectively. A.Ž. repeated, inter alia, that the applicant’s arrest had been made by V.V. and that the applicant had not been ill-treated. D.M. again gave evidence that he had no recollection of the identity of the arresting officer or of further proceedings with regard to the applicant. On 24 August 2007 V.V. gave his explanation as follows: “On 26 March 2004 a covert measure of investigation was implemented ... Following the experiment [V.V.] received an instruction to apprehend [the applicant] ... when the traffic police officers stopped the vehicle ... [V.V.] approached the vehicle ... and opened the front passenger door. [The applicant] was just then reaching to close the driver’s door, which had been left open. A traffic police employee was at the driver’s door. [V.V.] identified himself as a police employee and invited [the applicant] to step out of the vehicle. [V.V.] does not remember exactly whether [the applicant] was handcuffed and which of the colleagues assisted in [the applicant’s] arrest. Following [his] arrest [he] was taken to the State Police ... but [V.V.] does not remember who took him there. [The applicant] was not subjected to any physical violence when he was arrested, because there was no need to apply physical force.” 46. B.M. and L.V., officers of the police patrol unit gave explanations on 20 and 27 August 2007 respectively. They both stated that on 26 March 2004 they had been on duty and had been asked to drive to the State Police and work with officers of the Department for the Combat of Organised Crime. L.V. in his explanation of 27 August 2007 specified that department employees had briefed them that it was necessary to intercept a vehicle which might contain a person whose arrest was being sought. After receiving these instructions they had left the department, with department officers. Two of them had been in their own vehicle. At around 10 p.m. on the instruction of the department officers they had stopped a vehicle with a driver and a passenger inside. Both B.M. and L.V. stated that B.M. had approached the driver of the vehicle and asked him to present the necessary documents. The arrest had been made by department employees and no physical force had been used, either on the applicant or the driver of the vehicle. L.V. indicated that he had stayed inside the patrol vehicle while this was going on. B.M. declared that he had not seen the applicant since the arrest. The driver of the vehicle had been taken to the State Police and an administrative report that he had been driving without a licence was drawn up. L.V.’s account stated that both the applicant and the driver had been taken to the State Police. 47. On 3 September 2007 a senior inspector of the Internal Security Office of the State Police human resources inspection division issued a report on the results of the inquiry into the circumstances of the applicant’s arrest on 26 March 2004. 48. The report stated that information from the emergency medical service and Riga no. 1 Hospital, and explanations from the officers A.Ž., D.M., V.V., B.M. and L.V. had been collected. An explanation could not be obtained from A.K., because he did not attend the Internal Security Office as agreed and later went on holiday and was unreachable by telephone. The Internal Security Office had requested S.I., the driver of the vehicle in which the applicant had been a passenger when he was arrested on 26 March 2004, to attend the office. S.I. had informed the office by telephone that he was unable to attend because of the expected birth of a child and because he was too busy. S.I. also said on the telephone that he had been questioned about the incident on several occasions, and that time had passed and he could not remember the precise circumstances of the applicant’s arrest. S.I. did not know whether physical force had been used on the applicant, because he had stepped out of the vehicle. No physical force had been used against S.I. 49. The report further stated: “Likewise, during the inquiry which was conducted no unequivocal and impartial evidence was obtained that police employees had used unjustified physical force on [the applicant] during his arrest. In this regard the police employees categorically deny any use of physical force on [the applicant], whereas [the applicant] alleges to the contrary. Therefore, the question whether the police officers used physical force on [the applicant] and to what extent (during arrest, transport for questioning, or questioning itself) is to be examined in the pre-trial investigation division of the Internal Security Office of the State Police (VP IDP Pirmstiesas izmeklēšanas nodaļa), by taking the necessary actions in criminal procedure (questioning and subsequent confrontation between the police employees concerned).” 50. With regard to disciplinary liability the report indicated that in any event this would be barred by a period of statutory limitation. 51. On 11 September 2007 the pre-trial investigation division of the Internal Security Office of the State Police refused to initiate criminal proceedings. 52. That decision established: “... on 26 March 2004 [the applicant] was justifiably arrested for a criminal offence ... All the police officers who carried out the arrest on 26 March 2004 indicated that more than three years had passed since the event and they could not remember precisely what had happened. The applicant did not, immediately after the arrest, express any complaints about the police employees’ conduct against him. [The applicant] could obtain the established light injuries, which do not cause short-term health impairment for more than six days, before or during the apprehension, when special measures were applied to him. It may not be asserted unequivocally that during [the applicant’s] arrest the police employees exceeded their authority by intentionally using unjustified force, thus committing a criminal offence as set out in section 317(2) of the Criminal Law.” 53. On 21 September 2007 the applicant appealed to the Office of the Prosecutor General against the aforementioned refusal to initiate criminal proceedings. He argued that the existence of his injuries had not been disputed and had been confirmed by the expert’s report. He could not have sustained the injuries prior to the arrest because he had been arrested at 10 p.m. on 26 March 2004 and admitted to Riga no. 1 Hospital at 1.33 a.m. the next day. The applicant pointed out that a surgeon had noted on his record “was beaten up one and a half hours ago”. Further, the fact that police officers could not remember the circumstances of the arrest did not prove anything, and was not a justification. He also stressed that no one who could have given impartial information had been questioned. 54. On 7 November 2007 J.K., a prosecutor responsible for the criminal case against the applicant in respect of drug sale, gave a report that the applicant had never complained of ill-treatment by police officers during the investigation or court hearings. 55. On 8 November 2007 V.O., as chief prosecutor of the pre-trial investigation and oversight division, confirmed the decision of the Internal Security Office of the State Police of 11 September 2007. She noted that that office had questioned the police officers and had obtained the expert’s report and information from S.I. However, no unequivocal and impartial evidence had been obtained that the injuries had been caused during the arrest. V.O. added the following words to her decision: “... [the applicant’s] account of 8 June 2007 that police officers on 26 March 2004 had hit [him] several times on the back has not been confirmed, because the expert’s report did not establish any injuries on the back ... [the applicant] gave a contradictory account of how the abdominal contusion had been acquired (not taken into account in the expert’s report as not affirmed by impartial clinical data). On 29 March 2004 [the applicant] stated that police officers had hit [him] on the abdomen during [his] arrest but [he] had not lost consciousness, however on 8 June 2007 [the applicant] stated that the abdominal contusion had been caused by a fall on asphalt and that [he] had lost consciousness on the State Police premises ... It has also been established that, after being taken to Riga no. 1 Hospital at 1.33 a.m. on 27 March 2004 and examined there by doctors, [the applicant] was taken to a temporary detention facility at 5.51 a.m. ... from which a medical report has been received that between 27 and 30 March 2004 [he] did not request medical assistance.” 56. V.O. also indicated that there were no grounds to initiate disciplinary proceedings because no evidence had been obtained that State Police employees had exceeded their authority or abused their official position during the arrest. She also explained the period of statutory limitation for disciplinary proceedings. 57. V.O. stated that this decision was final.