CASE OF KHISMATULLIN v. RUSSIA
Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)
Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
5. The applicant was born in 1974 and is currently serving a prison sentence in medical penal institution LIU-58, Sverdlovsk Region. 6. On 23 April 2005 the applicant was arrested on suspicion of murder. He was taken to the police station, where he was allegedly ill-treated by police officers and confessed to murder. 7. On 24 April 2005 the applicant was subjected to a forensic medical examination, which recorded two bruises under his left and right eyes measuring 1 x 2 cm, an abrasion on the middle finger of the left hand measuring 0.5 x 0.8 cm, and an abrasion on the back of the right forearm measuring 0.2 x 2 cm. The expert concluded that the bruises under the eyes could have been inflicted three to five days prior to the examination, and the abrasions of the upper limbs could have appeared one to two days prior to the examination. 8. On the same day the record of the applicant’s arrest was drawn up. The applicant was questioned as a suspect and, allegedly for fear of further beatings, confirmed his previous confession. He was placed in a temporary detention unit. The unit’s medical records show that the applicant had a bruise under his left eye when admitted. They further indicate that the applicant was otherwise in good health. 9. On 26 April 2005 the applicant complained of chest pain. An ambulance was called, and he was found to have a bruised breastbone. 10. On 29 April 2005 the applicant was allegedly beaten again by the police officers in an attempt to make him confirm his previous statements to the investigator. 11. On 5 May 2005 the applicant again complained of chest pain. He was taken to Ozersk Town Hospital. An X-ray examination showed a breastbone fracture. 12. On 6 May 2005 the applicant was transferred to remand prison IZ74/3, Chelyabinsk. The facility doctor who examined the applicant on admission entered the breastbone fracture diagnosis of 5 May 2005 in the applicant’s medical records. 13. On 10 November 2005 Ozersk Town Court, Chelyabinsk Region, convicted the applicant, under Article 111 § 4 of the Criminal Code, of intentional infliction of grievous bodily harm on V., causing his death by reckless conduct. The applicant was sentenced to eleven years’ imprisonment. The applicant was represented by a legal-aid lawyer at the trial. 14. The applicant appealed. He asked the appeal court to allow him to attend the appeal hearing in his case, and also expressed the wish to be represented by a lawyer. 15. On 27 April 2006 Chelyabinsk Regional Court upheld the judgment on appeal. The applicant was present at the appeal hearing. He was, however, unrepresented. 16. On 16 March 2011 the Presidium of Chelyabinsk Regional Court granted an application for supervisory review by the Chelyabinsk Region Prosecutor and quashed the appeal decision of 27 April 2006. The Presidium found that the applicant’s right to legal representation had been violated in the appeal hearing and remitted the case for a fresh examination before the appellate court. 17. On 21 April 2011 Chelyabinsk Regional Court held a new appeal hearing in the applicant’s criminal case, with the applicant taking part (by video link) and in the presence of his legal-aid lawyer. The Regional Court upheld the applicant’s conviction on appeal and reduced his sentence to ten years and six months’ imprisonment. 18. Meanwhile, in December 2005 the applicant complained of illtreatment to the Ozersk Town Prosecutor’s Office. 19. On 26 January 2006 investigator Ch. of the Prosecutor’s Office, relying on Article 24 § 1 (2) of the Code of Criminal Procedure, refused to institute criminal proceedings against the police officers complained against, for lack of evidence that a crime had been committed. The investigator relied on statements by police officer P. denying that the applicant had been assaulted, extracts from the medical records of the temporary detention unit showing the entries of 24 April, 26 April and 5 May 2005, the applicant’s statements of 2 May 2005 in which he alleged that the bruises had been inflicted during a fight with some teenagers in April 2005, and references to the applicant’s failure to mention the alleged ill-treatment during the examination of the issue of his detention, when he was questioned as a suspect, or when charges were brought against him. 20. On 24 March 2006 the Ozersk Town Prosecutor quashed that decision and ordered an additional pre-investigation inquiry. 21. On 27 March, 17 April and 29 June 2006 and 21 June 2007 the investigator again refused to open a criminal case in connection with the applicant’s allegations of ill-treatment. However, on 13 April and 26 June 2006 and 9 June and 2 July 2007 respectively the supervising prosecutor quashed those decisions as unfounded and ordered additional preinvestigation inquiries. 22. On 6 July 2007 chief investigator P. of the Ozersk Town Prosecutor’s Office refused for the sixth time to order the institution of criminal proceedings, and concluded that the applicant had sustained his injuries prior to his arrest. This decision was based on the following evidence: - the applicant’s explanations of June 2006 (see paragraph 23 below); - explanations by the chief of police Mo., police officers P. and Sh., and the deputy chief of police Yar., who denied having subjected the applicant to any violence; - explanations by prosecutor’s assistant B. and investigator Ma.; - explanations by officers of the temporary detention unit Kh., G. and Akh.; - extracts from the temporary detention unit’s logbooks, including its medical logbook; - the X-ray examinations logbook of Ozersk Town Hospital; - the report of the applicant’s forensic medical examination; - explanations by ambulance doctor S., who examined the applicant at the temporary detention unit on 26 April 2005, and by hospital doctor B., who examined the applicant at the hospital on 5 May 2005; - the applicant’s statements of 24 April-2 May 2005 taken from his criminal file, to the effect that he had received the injuries prior to the arrest during a fight with some teenagers and that he had no complaints against the police officers or the officers of the temporary detention unit in connection with those injuries; - explanations by forensic medical expert Mos.; - documents from the applicant’s criminal file, including the records of his questioning of 24 April, 29 April and 19 July 2005, in which the applicant submitted that he had attacked V. (the victim of the crime of which the applicant had been convicted) in self-defence; - the applicant’s statements made during the trial and his complaints to the prosecutor and the investigator to the effect that he had sustained his breastbone fracture as a result of acts of violence by V. 23. It followed from the applicant’s explanations, in particular, that in early April 2005 he had had a fight with some unidentified teenagers, as a result of which he had received a bruise under his left eye. On 21 April 2005 V. had kicked the applicant twice in the chest area and twice in the face, as a result of which he had had a bruise under his right eye and felt pain in his chest. On 23 April 2005 the applicant was arrested and taken to the police station, where one police officer hit him with something heavy on the nape of the neck and another kicked him in the chest area, as a result of which the applicant felt pain in his chest. On 24 April 2005 one of the police officers hit him on the head at least twice with a 1.5-litre plastic bottle filled with water, which did not result in any injuries. On 29 April 2005 in the investigations office of the temporary detention unit one of the police officers had knocked the applicant to the floor and kicked him at least three or four times on the left side and twice in the stomach and chest. These actions did not lead to any injuries. The applicant could not clarify whether his breastbone fracture had been the result of the actions of V. or of the police officers. 24. On 8 November 2007 the Ozersk Town Prosecutor found the decision of 6 July 2007 lawful and justified. 25. On 19 March 2008 Ozersk Town Court, Chelyabinsk Region, found the pre-investigation inquiry into the applicant’s allegations to be complete and unbiased, and the decisions of 6 July and 8 November 2007 lawful and justified. 26. On 24 June 2008 Chelyabinsk Regional Court upheld the decision of 19 March 2008 on appeal.