CASE OF OSTROVEŅECS v. LATVIA
Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)
André Potocki;Angelika Nußberger;Mārtiņš Mits;Nona Tsotsoria;Yonko Grozev;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1993 and is detained in Jēkabpils. On 9 February 2011 he reached the age of majority. 6. The applicant (who was a minor at the time of the criminal trial) and his co-accused, V.P., P.V. and F.Č., were charged with the aggravated murder of a fifteen-year-old girl, and the intentional destruction of property. The case was heard in May 2010 by the Riga Regional Court (Rīgas apgabaltiesa). The applicant pleaded “partially guilty” (vainu atzīst daļēji). He was held in detention on remand in Riga Central Prison (Rīgas centrālcietums) and was transported to the Riga Regional Court for the hearings. 7. The applicant submits that on the trial days, that is to say on 20, 21, 24 and 25 May 2010, in the holding area in the basement of the Riga Regional Court, he was insulted and physically assaulted by the detainee escort officers to make him confess to the crimes. He was made to perform different exercises, such as a “wall-sit” exercise, push-ups and a “duck walk” (walking slowly in a squatting position). While the applicant was performing the exercises he received blows to the back with a rubber truncheon. The applicant submits further that the escort officers assaulted him before and after the hearings and during the breaks. They beat him on different parts of the body. During the beatings they expressed their opinion regarding the criminal proceedings and manifested a negative and belittling attitude towards him. They also threatened to kill or mutilate the applicant if he did not plead guilty. Having been psychologically broken and without having consulted his lawyer, during the hearing of 25 May 2010 the applicant admitted his guilt and refused to testify. 8. On 26 May 2010 the applicant’s mother visited him in Riga Central Prison. On the following day the applicant’s mother, acting as his representative, lodged a complaint with the prosecution service. She stated that the escort officers had kicked her son on his body, arms, legs and head, and that he had shown her many bruises. She requested the prosecution service to institute criminal proceedings in respect of these events. On 31 May 2010 the prosecution service forwarded the complaint to the Riga regional division of the State Police. On 2 June 2010 the applicant’s mother lodged a similar complaint with the Internal Security Office of the State Police (Valsts policijas Iekšējās drošības birojs – hereinafter “the Internal Security Office”) (see paragraph 17 below). 9. On 26 May 2010 employees of the Ombudsman’s Office visited the applicant in Riga Central Prison. On the following day the Ombudsman wrote a letter to the Internal Security Office stating that the applicant had alleged that the escort officers had assaulted him. He had borne traces of the alleged violence – a haematoma on his side and abrasions on his arm and legs. The Ombudsman requested the Internal Security Office to examine the actions of the escort officers. He informed the Riga Regional Court about this letter. 10. On 27 May 2010 the applicant’s lawyer visited him in Riga Central Prison. Following the meeting, the applicant’s lawyer lodged a complaint with the prosecution service. He stated that between 20 and 25 May 2010 the applicant had been beaten by the detainee escort officers in order to make him confess to the crime. The applicant had shown him his injuries. As a result of this coercion at the hearing on 25 May 2010 the applicant had admitted his guilt, contrary to his defence position. The applicant’s lawyer requested the prosecution service to institute criminal proceedings in respect of these events. On 2 June 2010 the prosecution service sent the complaint to the Riga regional division of the State Police. 11. At a hearing on 28 May 2010 the applicant stated that on all four trial days he had been assaulted, as a result of which he had admitted his guilt. He maintained his earlier plea of “partially guilty”. Moreover, the applicant’s co-accused also stated that they had been assaulted. The applicant’s lawyer stated that the applicant had a black eye and that he had been hit on his head. He argued that the applicant was unable to testify. The judge adjourned the hearing in order to request information from Riga Central Prison on the applicant’s and his co-accused’s state of health. 12. On 28 May 2010 Riga Central Prison faxed to the Riga Regional Court a copy of a medical certificate issued after the applicant had been medically examined on 26 May 2010. The handwritten medical certificate, dated 26 May 2010, provided to the Court by the Government stated that the applicant had the following injuries: wounds on his lower legs and on the right hand “in the typical area”; a haematoma on the left forearm; and a haematoma on the right side. The applicant had stated that he had been beaten with a truncheon while being escorted on 20, 21 and 24 May. The Government also provided a typewritten report, dated 14 June 2010, from Riga Central Prison. According to the report, the applicant’s state of health on 26 May 2010 had been satisfactory; he had had several injuries covered by scabs on his lower legs; injuries covered by scabs on the “typical area” of the right hand caused by the use of handcuffs; a haematoma four centimetres in diameter on his left forearm; and a haematoma six centimetres in diameter in the “phase of absorption” on the right side in the area of the kidney. 13. At a hearing on 29 May 2010 the applicant stated that he was unable to testify because he had a headache. His lawyer argued that the applicant’s medical examination had been superficial. The prosecution was of the view that the applicant was seeking to delay the proceedings. The judge decided to proceed with the trial. The same day the Riga Regional Court found the applicant and his co-accused guilty and sentenced him to ten years’ imprisonment. The applicant and his mother lodged appeals indicating inter alia that the applicant had been assaulted by the escort officers. The case was forwarded to the Criminal Chamber of the Supreme Court (Augstākās tiesas Krimināllietu tiesu palāta). 14. At a hearing on 30 January 2013 the prosecution informed the appellate court that the criminal investigation in relation to the applicant’s “bodily injuries” had been terminated, that that decision had taken effect and that no appeal had been lodged against that decision. The relevant material was included in the case file. At a hearing on 9 December 2013 the applicant admitted his guilt in full and asked the court to review his conviction only in so far as it concerned his sentence. 15. On 11 December 2013 the Criminal Chamber of the Supreme Court upheld the applicant’s conviction, but reduced his sentence to nine and a half years’ imprisonment. In setting the sentence the court took into account that the proceedings before it had included a period of inactivity of more than one year and thus had lasted for unreasonably long time. 16. On 29 October 2014 the Supreme Court with a final decision dismissed the applicant’s appeal on points of law. 17. As submitted by the Government, on 7 June 2010 the Internal Security Office instituted an internal inquiry. It requested the applicant’s medical records from Riga Central Prison. On 18 June 2010 the Internal Security Office, referring to the complaint lodged by the applicant’s mother (see paragraph 8 above), sent a copy of the file to the Riga regional division of the State Police for it to decide on the lawfulness of the actions of its employees. The Internal Security Office stated that the file did not indicate that the escort officers had committed a criminal offence. 18. On 28 June 2010 the applicant lodged a complaint with the Internal Security Office regarding his alleged ill-treatment, stating that he would be able to identify the alleged perpetrators. The Internal Security Office sent the complaint to the Riga regional division of the State Police. 19. On 3 August 2010 the Riga regional division of the State Police, terminated the internal inquiry. It noted that according to the medical documentation concerning the applicant provided by Riga Central Prison the applicant’s state of health on 26 May 2010 had been satisfactory. He had had several wounds on his lower legs covered by scabs; wounds on the right hand covered by scabs, caused by the use of handcuffs; a haematoma four centimetres in diameter on his left forearm; and a haematoma six centimetres in diameter “in the phase of absorption” on the right side. The Riga regional division of the State Police noted the injuries found on V.P. At the same time, there had been no visible injuries found on P.V. or F.Č. According to explanations (paskaidrojumi) obtained from sixteen officers, neither the applicant nor his co-accused had been assaulted. The Riga regional division of the State Police concluded that the information gathered did not indicate that the officers had committed a disciplinary offence. It returned the file to the Internal Security Office. 20. On 11 August 2010 the Internal Security Office refused to institute criminal proceedings in view of the fact that the constituent elements of the offence of “exceeding official authority” under section 317(2) of the Criminal Law (Krimināllikums) were lacking in the officers’ actions. The applicant’s mother appealed against this decision. 21. On 26 August 2010 the prosecution service found that the Internal Security Office had based the impugned decision on an inquiry conducted by another institution of the State Police and medical documentation provided by Riga Central Prison. It was necessary to question the applicant and his co-accused regarding the circumstances of their transportation and to find out whether any of the employees of Riga Central Prison had seen injuries on them prior to and after their transportation and whether any of the employees had received any complaints from them in this regard. It was also necessary to find out whether between 20 and 25 May 2010 or earlier the applicant or his co-accused had been involved in any kind of conflict in the prison as a result of which they could have sustained the injuries. The prosecution service referred the case back to the Internal Security Office. 22. In reply to a request from the Internal Security Office, on 22 October 2010 Riga Central Prison provided information that prison employees who had between 20 and 25 May 2010 searched (pārmeklēt) the applicant and his co-accused each time prior to and after their being transported had not seen any injuries on them. The applicant and his co-accused had not made any complaints. There were no records showing that between 1 and 26 May 2010 they had been involved in any conflicts in the prison. On 5 November 2010 the Internal Security Office obtained explanations from the applicant and his co-accused, who maintained that the escort officers had assaulted them. As regards the daily physical security checks that they had undergone in the prison, they stated that prison employees had not asked them to undress. Therefore their injuries had remained undetected. 23. On 10 November 2010 the Internal Security Office again refused to institute criminal proceedings, stating that the information gathered during the additional inquiry did not indicate that the officers had committed any offence under section 317(2) of the Criminal Law. The applicant’s mother appealed against this decision. 24. On 17 December 2010 the prosecution service quashed the decision as it had been based on an incomplete inquiry. It instructed the Internal Security Office to question the persons with whom the applicant and his coaccused had shared cells between 20 and 25 May 2010 and to obtain information regarding breaks during the trial days on which the applicant and his co-accused had allegedly been assaulted. It was also necessary to question further the escort officers. 25. On 29 November 2011 the Internal Security Office obtained information from Riga Central Prison regarding the applicant’s and his coaccused’s cellmates. In December 2011 and January 2012 it took explanations from them. According to the applicant’s cellmate, A.D., the applicant had told him that the escort officers had assaulted him and his coaccused. He had shown him marks left by the beatings. It was difficult for A.D. to recall details as a long time had passed. Between 19 and 30 January 2012 the Internal Security Office questioned the escort officers, who stated that they had not assaulted the applicant or his co-accused. 26. On 31 January 2012, for the third time, the Internal Security Office refused to institute criminal proceedings, stating that the information gathered during the additional inquiry did not indicate that the officers had committed any offence under section 317(2) of the Criminal Law. The applicant’s mother appealed against this decision. 27. On 22 February 2012 the prosecution service quashed the decision. It considered that the Internal Security Office had not clarified the contradictions between the statements of the applicant and his co-accused on the one hand, and the statements of the escort officers on the other hand, and the circumstances in which the applicant and V.P. had obtained the injuries established on 26 May 2010. In view of the information gathered during the internal inquiry it was possible that above-mentioned offence under section 317(2) of the Criminal Law had been committed. Accordingly, the prosecution service instituted criminal proceedings and returned the file to the Internal Security Office for further investigation. On 23 February 2012 the prosecution service informed the applicant’s mother that the criminal proceedings had been instituted. 28. Between 29 February and 21 March 2012 the Internal Security Office questioned as witnesses fifteen escort officers, who gave largely the same statements. They had not beaten the applicant or his co-accused. They explained that officers wore belts which they never removed because handcuffs, truncheon, gun, pepper spray and gun belt were attached to them. They could not give more detailed statements as a long time had passed since the events. One escort officer, M.S., who was questioned as a witness on 11 April 2012, stated that he had seen bruises on the applicant and his co-accused during their personal search in the court building. M.S. had thought that they had been beaten in the prison. The escort officers had not assaulted them. 29. On 20 March 2012 an inspector of the Internal Security Office questioned one of the applicant’s co-accused, V.P., as a witness. 30. V.P. stated that on the first trial day the escort officers had made him perform push-ups and a “duck walk”, during which two escort officers had hit him on his back, abdomen, legs and chest with their legs, fists, a belt and truncheons. The escort officers had also beaten the applicant, who had been next to him. The officers had placed V.P. in a holding cell, and after some time they had escorted him to the court room. 31. P.V. and F.Č., the applicant’s co-accused, stated that on the second trial day the escort officers had made them perform push-ups and a “duck walk”. While they had been performing the exercises the escort officers had beaten them. P.V. had been hit during a break by two escort officers with a black belt on his back ten to twelve times. F.Č. had been hit by one escort officer on his back and legs approximately ten times. He had also been hit on his buttocks with a belt twenty to thirty times. 32. P.V. had heard the applicant screaming. On the way back to the prison the applicant had told P.V. that he had been beaten; later, in the prison, he had shown him two bruises on his chest. After the occurrence of the alleged beating had been raised during the trial P.V. had been examined by a prison doctor. He had had no injuries. 33. V.P., P.V. and F.Č. stated that they would not be able to identify the officers who had beaten them. They could not recall the events in detail. They did not wish to be declared victims in the proceedings. 34. On 3 April 2012 the applicant was questioned as a witness. He stated that on the trial days in the basement of the court building the escort officers had made him perform different exercises, such as a wall-sit exercise, pushups and a “duck walk”. While he had been performing the exercises, the escort officers had beaten him. He further stated that the escort officers had beaten him on different parts of the body. They had also hit him with a belt. On 7 June 2012 the inspector presented photographs of the escort officers to the applicant for the purposes of identification. He could not identify the officers who had allegedly assaulted him. 35. As submitted by the Government, on 2 May 2012 the Riga Regional Court confirmed that the court building premises were equipped with a video surveillance system. However, they stated that video recordings were stored for two to three months and then erased. 36. On 3 May 2012 the Internal Security Office requested an expert medical report. In respect of V.P., P.V. and F.Č. the report concluded that their medical documentation contained no records of injuries sustained over the time period in question. In respect of the applicant the report stated that the description of the injuries contained in the medical documentation, in the record of the applicant’s questioning by the police, and in the hearings transcripts was incomplete. Therefore, it was not possible to determine the exact time at which the injuries had been sustained, how extensive they had been, and the degree of trauma or force that had been employed to inflict them. However, it could not be excluded that the injuries had appeared between 20 and 25 May 2010 in the circumstances indicated in the record of the applicant’s questioning. While it was indicated in the record of the applicant’s questioning and in the hearings transcripts that injuries had also been inflicted to the applicant’s face, abdomen, buttocks, lower part of the back, back, and left side of the thorax, such injuries had not been identified in the medical examination of 26 May 2010. 37. On 18 May 2012 the Internal Security Office questioned P.V.’s former cellmate, V.A., who stated that he had seen red patches on P.V.’s back. P.V. had told him that the escort officers had beaten him in the basement of the court building; they had also beaten the applicant. According to V.A. this had happened prior to 5 May 2010. V.A. had heard that the applicant had also been beaten in the prison. 38. On 20 July 2012 the Internal Security Office terminated the criminal proceedings on the grounds that the elements of the offence had not been made out. There was no irrefutable evidence that the escort officers had inflicted the injuries as alleged. According to the expert report, the injuries had not been recorded in the medical documentation precisely. The persons involved in the criminal proceedings had given contradictory accounts of the circumstances in which the injuries had been inflicted. 39. On 6 August 2012 the applicant’s mother lodged an appeal with the prosecution service against the decision to terminate the criminal proceedings, the applicant having on 21 October 2011 granted her power of attorney (universālpilnvara) to take any action concerning his property. This included the right to represent the applicant before the police, the courts and other institutions in relation to all rights vested in him as a victim. Prior to the authorisation she had represented the applicant on the grounds of his being a minor. In the wording of the appeal the applicant’s mother indicated that she was acting on behalf of the applicant. 40. She complained of deficiencies in the criminal investigation which had precluded obtaining important information. Namely, the presentation of photographs to the applicant for the purpose of identifying the alleged perpetrators had been organised in a manner intended to impede justice while he had been shown the small black-and-white frontal photographs he had been surrounded by seven escort officers in an effort to intimidate him. She asked that the investigating authorities organise an identity parade for the applicant and his co-accused and question the applicant’s co-accused regarding the events in question. 41. On 6 September 2012 a prosecutor dismissed her appeal, noting that during the presentation of photographs the applicant had been assisted by his lawyer. They had not made any remarks or requests as regards this procedure. The investigating authorities had established that no force had been used against the applicant and his co-accused and that no threats had been made. From the moment at which the trial had started the Ombudsman had paid particular attention to the applicant and his co-accused. All of the escort officers had been questioned as witnesses. They had had no interest in the outcome of the trial. Therefore, there had been no reason to doubt their account of the events. The applicant’s co-accused had also been questioned and their evidence assessed. There was no need to take any further investigative steps as the constituent elements of the offence under section 317(2) of the Criminal Law were lacking in the officers’ actions. The prosecutor indicated that her decision was amenable to appeal before a higher prosecutor. 42. On 22 September 2012 the applicant’s mother appealed against the aforementioned decision before a higher prosecutor. She indicated that she was acting on behalf of the applicant. In addition to the issues raised previously she complained that a long time had passed before criminal proceedings had been instituted. She considered that it had been a deliberate delay to hide any traces of assault. Furthermore, during the internal inquiry the Internal Security Office had “interviewed” the applicant and the coaccused, who had been minors at the relevant time, in the absence of a lawyer or a representative. After those “interviews” the co-accused had all refused to testify. 43. On 24 October 2012 a higher prosecutor dismissed the applicant’s mother’s appeal. He upheld the findings of the lower prosecutor – the decision to terminate the criminal proceedings had been lawful as the constituent elements of the offence had been missing. At the same time, he noted that the applicant had not been declared a victim in the criminal proceedings and hence could not be represented by another person. Furthermore, at the time when the criminal proceedings had been instituted he had reached the age of majority. The higher prosecutor indicated that the applicant’s mother did not have the right to complain about the decision to terminate the criminal proceedings and that it had been wrong for the lower prosecutor to examine her complaint on the merits. That being said, the higher prosecutor also examined her complaint on the merits for the reason of legal certainty as the lower prosecutor had done so. He concluded by indicating that the applicant’s mother could not lodge further complaints about the decision to terminate the criminal proceedings. 44. On 9 November 2012 the applicant lodged an appeal with the prosecution service against the aforementioned decision. He stated that his mother had been authorised to lodge complaints in his name under the power of attorney that he had granted her on 21 October 2011. He further noted that the assessment of the flaws in the proceedings had been superficial and had not properly addressed the points raised by his mother. He emphasised that no explanation had been given for the injuries that he had sustained while in custody or for the delay in the institution of the investigation and the superficial manner in which it had been conducted. He argued that it might have been that the State, acting through its agents, had been willing to cover-up his assault. 45. On 12 December 2012 a chief prosecutor responded that the applicant’s procedural status was that of a witness and that, unlike victims, witnesses had no right to authorise other persons to exercise their procedural rights on their behalf. Furthermore, the applicant himself did not have a right to challenge the response that had been given to his mother, as he was not the addressee of this letter sent to her. Lastly, because he had not been the one who had lodged the initial appeals, the applicant had missed the time-limit for lodging an appeal against the decision of 20 July 2012 terminating the criminal proceedings. Accordingly, the applicant’s appeal was not examined. The applicant was informed of the fact that in accordance with domestic law this decision was not amenable to appeal. 46. On 28 July 2011 the applicant complained to the Ombudsman, who then instituted an inquiry and requested information from Riga Central Prison, the State Centre for Forensic Medical Examination (Valsts tiesu medicīnas ekspertīzes centrs) and the Internal Security Office. 47. On 16 May 2012 the Ombudsman delivered a report in which he observed that, as the criminal investigation was still ongoing, it would be premature to assess the proceedings as a whole. However, with regard to the internal inquiry, the Ombudsman expressed concerns regarding the institutional independence of the Internal Security Office when analysing offences allegedly committed by the police officers. 48. Furthermore, the internal inquiry had lasted one year and seven months – beyond a reasonable time-limit. The inquiry had not been carried out with the requisite diligence, as exemplified by the repeated quashing of decisions not to institute criminal proceedings. The Ombudsman expressed concerns that flaws in the internal inquiry might render it impossible to establish whether the applicant’s injuries had been inflicted by the police officers. Thus, the internal inquiry undertaken by the State Police could not be regarded as constituting an effective remedy within the meaning of Article 13 of the Convention. Nonetheless, the Ombudsman considered that it would be premature to pronounce on a violation of Article 3 of the Convention.