CASE OF NABOYSHCHIKOV v. RUSSIA
Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect)
Anatoly Kovler;Angelika Nußberger;Dean Spielmann;Elisabet Fura;Isabelle Berro-Lefèvre;Karel Jungwiert
5. The applicant was born in 1956 and lives in Rostov-on-Don. 6. The parties disagreed as to the course of the events that occurred on 3 October 2003. Their versions may be summarised as follows. 7. On 2 October 2003 the applicant saw a road police inspector being bribed for permission to enter a restricted-access zone and informed a lawenforcement body about this incident. As no action followed on its part, the applicant decided to investigate independently the number of cars that were allowed to pass through the restricted-access zone. On the night of 3 October 2003 he was spotted by the guards of rifle division no. 16 of the Rostov extra-departmental security service of the North Caucasus Railway (Стрелковая команда № 16 Ростовского отряда вневедомственной охраны Северо-Кавказской железной дороги). He was searched and taken to the guardroom, where he was brutally beaten. Guard S. fired several shots at the applicant’s legs with a Kalashnikov rifle, severely wounding him. 8. At 2 a.m. on 3 October 2003 the applicant entered the restrictedaccess zone guarded by rifle division no. 16 of the Rostov extradepartmental security service, which was responsible for the security of the railway bridge of the Zarechnaya-Bataysk sector of the NorthCaucasus Railway. 9. The applicant set fire to a car owned by guard S. and was apprehended by the latter. 10. Guards L. and S. escorted the applicant to the guard premises. Upon entering the premises they proceeded in the direction of the guard commander’s room, and guard N. stepped back into the kitchen to allow them to pass. L. was bringing up the rear. 11. Suddenly the applicant turned around and tried to stab S. with a knife. As the latter did not have enough time to take his handgun out of its holster he commanded L. to give him a rifle and warned the applicant. After repeating the warning and in view of the advancing applicant, S. fired away from the applicant, hitting a fire extinguisher which began discharging foam. The guards had difficulty seeing and breathing and left the building. After the foam began to settle down, S. entered the premises again and saw the applicant hiding behind the door frame. The applicant hopped into the corridor and again tried to stab S. S. leapt back but could not retreat further as his way was blocked by L. S., who was still holding the rifle, warned the applicant and fired at the floor below him. The applicant leapt aside but was still threatening them. Fearing for his life S. fired two single shots, aiming at the applicant’s legs. The applicant retreated to the room of the guard commander screaming that he was going to blow the place up. S. followed him and saw the applicant, who was wearing a jacket and hat belonging to the guards, sitting on a sofa with blood streaming down his legs. S. noticed that the phone cords had been cut. He ordered N. to summon the police and ambulance and, together with L., began to administer first aid. They then discovered the knife on the back of the sofa. 12. The applicant, who was suffering from a manic mental disorder, had a suspicion that the guards of rifle division no. 16 were aiding terrorists. On 2 October 2003, during the day, he arrived at the guarded zone on his bicycle and demanded that the guards stop letting the cars through. Having failed to achieve the desired result, at 2 a.m. on 3 October 2003 the applicant entered the restricted-access territory, where he might have tried to set fire to the car of guard S., who apprehended him while in a state of inebriation. 13. After unsuccessfully searching the applicant for weapons, S. escorted him to the guard premises where, together with L. and N., he started beating him by way of a reprisal for the damaged car. Most of the blows were delivered by kicks to the groin area. Having realised that the applicant had mental-health problems, S. fired at the applicant but missed and hit the fire extinguisher. In a state of rage S. returned to the building after the foam had settled down and fired three shots at the applicant, two of which hit his legs and one the floor. Subsequently S. planted a knife in the area to support his argument that the applicant had attacked him. 14. Immediately after the incident the applicant was taken to hospital, where he was diagnosed as having gunshot wounds to the upper thigh areas of both legs and to the left popliteal artery, gangrene of the lower left leg, and urethritis. His left leg was amputated on 14 October 2003 and he subsequently received second-category disabled status. The amputated extremity was disposed of, and the medical records did not contain any information about the location of the bullet entry and exit holes on it. 15. The applicant submitted statements by several friends and family members testifying that before the incident they had known him as a very healthy person in good physical condition and that he had only started complaining of pain in the groin area after the incident when they had visited him in hospital. In particular, two individuals stated that on 8 October 2003, while removing the bedpan used by the applicant, they had noticed blood in his urine. 16. On 18 November 2003 the applicant consulted an urologist from the municipal hospital who diagnosed him with post-catheter urethritis. On 22 December 2003 he was diagnosed with chronic cystitis and pyelonephritis. Bladder and urethra perforation and bladder injury were not ruled out. 17. On 24 March 2004 the applicant complained to the office of the transport prosecutor of the North Caucasus that his urogenital apparatus had been damaged as a result of the beatings by the guards on the day of the incident. 18. On various dates the medical personnel questioned during the investigation into the shooting incident stated that they had not seen any bodily injuries other than the gunshot wounds. The trousers worn by the applicant during the incident and removed later for surgery had been lost or disposed of at the hospital. 19. From 2005 to 2009 the applicant underwent in-patient treatment on several occasions, including several operations to his urogenital apparatus. At present he has to use a nephrostome (a catheter removing urine directly from the kidneys). 20. On 3 October 2003 an investigator from the office of the transport prosecutor of Rostov examined the site of the incident. On the same day the guards present during the incident were tested for the presence of alcohol in their bodies using a breath alcohol testing device. S.’s data were recorded as zero. 21. On 9 October 2003 the deputy transport prosecutor of Rostov opened a criminal investigation on account of the serious bodily harm suffered by the applicant. The latter was granted the procedural status of witness. 22. The investigation was conducted by the Line Interior Office of Bataysk, Rostov Region (ЛОВД на станции Батайск Ростовской области). 23. On 23 October 2003 the applicant was summoned to be questioned but refused to make any statements referring to poor health. 24. In October and November 2003 the investigation procured the results of the expert medical and ballistic forensic examinations that had been carried out and questioned the witnesses. 25. On 15 December 2003 an expert psychiatric forensic examination found that the applicant had a type of chronic paranoid schizophrenia. 26. By a decision of 9 January 2004 the investigator of the Bataysk Line Interior Office terminated the criminal proceedings against S. for lack of corpus delicti. The decision was based on statements by the applicant’s father and the guards present during the incident, plus the results of several expert examinations. However, on 15 March 2004 the deputy transport prosecutor of Rostov quashed that decision on account of the erroneous legal qualification of the applicant’s and S.’s actions, as well as the failure to question the applicant and to collect detailed data about his personality and capabilities, and the case was returned for further investigation. 27. On 24 March 2004 the applicant filed a request to be granted victim status in the proceedings. This request was refused by the investigator on the following day on the ground that the applicant had a mental disorder. On 30 March 2004 the investigator allowed the applicant’s wife to act as his lawful representative and obtained statements from the applicant. 28. On an unspecified date the applicant retained legal counsel. 29. In reply to the complaints of the applicant’s counsel, on 22 April and 27 May 2004 the deputy transport prosecutor of Rostov and the deputy prosecutor of the Rostov Region respectively refused to grant the applicant victim status, arguing that the infliction of bodily harm had not been unlawful. 30. By decisions of 15 May 2004 the investigator again terminated the criminal proceedings against S. for lack of corpus delicti and refused to open a criminal case against the applicant, referring to his mental disorder. In particular, the decision to terminate the criminal proceedings against S. was additionally based on the statements of the applicant, the head of rifle division no. 16, the experts, the medical personnel and the police, as well as the results of re-enactments of the crime. A copy of the latter decision was sent to the applicant. 31. However, on 4 June 2004 these decisions were quashed by the supervising prosecutor, who remitted the case for further investigation. The prosecutor pointed out that there had been no adequate legal qualification of the deliberate damage to property and the murder threats in respect of the guard of the extra-departmental security service by the applicant, and that there was a need for an additional expert psychiatric examination to determine whether the applicant needed compulsory medical treatment. 32. On 11 June 2004 the investigator rejected requests by the applicant’s lawyer for a copy of the decision of 15 May 2004 terminating the criminal proceedings against S. and the results of the medical and psychiatric forensic examinations. He also dismissed the lawyer’s request for an expert examination of the lawfulness of the use of firearms by S., but granted his request to study the prosecutor’s decision of 4 June 2004. 33. On 30 June 2004 the investigator apprised the applicant’s lawyer and wife of the results of three expert psychiatric and medical forensic examinations. 34. By decisions of 7 July 2004 the investigator again terminated the criminal proceedings against S. and refused to open a criminal case against the applicant for the same reasons as before. A copy of the latter decision was sent to the applicant. 35. Following a complaint by the applicant’s wife, on 27 September 2004 the deputy prosecutor of the Rostov Region quashed the decisions of 7 July 2004 and returned the case for further investigation. The deputy prosecutor averred that the investigator had not given a legal qualification to the damage to property perpetrated by the applicant, or established the exact whereabouts of the entry and exit holes of the applicant’s wounds and whether such wounds could have been caused by a single shot. According to the deputy prosecutor, the investigation had also not reconciled the contradictions between the two expert psychiatric examinations concerning the need for compulsory medical treatment of the applicant. 36. On 13 October 2004 the investigator again refused to grant the applicant victim status in the proceedings. That decision was confirmed on 5 November 2004. 37. On 28 December 2004 the investigator apprised the applicant’s wife and lawyer of the results of the latest forensic medical examination. On the same day he again took decisions to terminate the criminal proceedings against S. for lack of corpus delicti and not to open a criminal case against the applicant on account of his mental-health status. The description of the events by the authorities remained identical throughout the investigation. 38. Article 42 of the Code defines a victim as a person who has sustained physical, psychological or proprietary damage as the result of a criminal act. The provision further details that a victim has the right, among other things, to know about any charge brought against the accused, to participate in the investigative actions conducted at his or his representative’s request, to study the criminal case materials upon completion of the investigation and copy them, to receive copies of any decisions concerning the opening, stay or termination of criminal proceedings, as well as decisions granting the status of victim or refusing to do so. 39. Article 56 of the Code lays down the definition, rights and obligations of a witness in criminal proceedings. In particular, Article 56 § 4 (5) provides that a witness is entitled to lodge requests and complaints in respect of the acts or omissions of an investigator, a prosecutor, or a court. 40. Chapter 16 of the Code lays down the procedure by which acts or decisions of a court or public official involved in criminal proceedings may be challenged. The acts or omissions of a police officer in charge of an inquiry, an investigator, a prosecutor or a court may be challenged by “parties to criminal proceedings” or by “other persons in so far as the acts and decisions [in question] concern those persons’ interests” (Article 123). Such acts or omissions may be challenged before a prosecutor (Article 124). Decisions taken by police, investigators or prosecutors not to initiate criminal proceedings, or to terminate them, or any other decision or inaction capable of infringing upon the rights of “parties to criminal proceedings” or of “hindering an individual’s access to court” may be subject to judicial review (Article 125). 41. Ruling of the Constitutional Court no. 13-P of 29 April 1998 specifically invalidated the provision of Article 113 of the Code of Criminal Procedure of the RSFSR (in force until 2002) limiting access to judicial review of a refusal to open a criminal investigation, and conferred access to court in such matters on all persons affected. 42. Referring to its previous rulings, no. 5-P of 23 March 1999 and no. 11P of 27 June 2000, as well as to Article 48 of the Constitution, which guarantees professional legal assistance, in its decision no. 119-O of 22 January 2004 the Constitutional Court stated that “the rights and freedoms guaranteed by the Constitution pertaining to criminal proceedings are conferred not by the formal status of a person in criminal proceedings but by the existence of certain material factors qualifying the de facto situation of this person as needing protection of the pertinent right”. 43. The extra-departmental security service of the Ministry of the Interior was created by Government decree no. 589 of 14 August 1992 (“the Decree”). 44. Article 1 of the Decree stipulates that the extra-departmental security service was founded for the protection of private property and is guided in its actions by the Constitution of Russia, the Police Act and other federal laws, the decrees and orders of the President and the Government of the Russian Federation, the decisions of the governments of the entities of the Russian Federation, the present Decree, and the regulations of the Ministry of the Interior of Russia. Article 5 of the Decree provides that the extradepartmental security service is managed by the Department for the State Protection of Property of the Ministry of the Interior, the ExtraDepartmental Security Operational Management Centre and the specialised police departments at the local level and the level of the federal entities. Article 8 of the Decree enables the officers of the extradepartmental security service, among other things, to take individuals suspected of offences against protected property to guardrooms or to police stations in order to conduct personal searches in exceptional circumstances and to use firearms in the situations and in the manner prescribed by law.