CASE OF POLONSKIY v. RUSSIA
Remainder inadmissible;Violation of Art. 3 (procedural aspect);Violation of Art. 3 (substantive aspect);Violation of Art. 5-3;Violation of Art. 6-1;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
5. The applicant was born in 1968 and lives in Volgograd. 6. On 28 January 2003 the applicant was arrested on suspicion of unlawful possession of arms and forgery of identity documents. He was taken to police department no. 2 in Volgograd and interrogated in the office of its deputy head, Mr T. 7. The applicant stated that Mr T. and the subordinate police officers had handcuffed and beaten him, seeking a confession. While he was sitting on a chair with his arms handcuffed behind the chair, the policemen administered electric shocks to his fingers through wires connected to a dynamo. The applicant fell onto the floor and one of the policemen stepped on his back. As the applicant was screaming, the policeman took off the applicant’s sock and gagged his mouth. 8. At about 5 a.m. on 29 January 2003 the applicant was put in a temporary detention cell. In the cell he pulled out a nail from the window frame and tried to open his veins. His arms swelled up and he asked for a doctor. The warders gave him an antiseptic and allegedly handcuffed him to a bar in the corridor. An hour later he was again taken to the police station and beaten. The policemen threatened to torture his wife and sister and insisted that he confess. 9. On 30 January 2003 the applicant was questioned by the investigator and he complained to the latter about ill-treatment. The investigator ordered a medical examination. The applicant was immediately escorted to the Volgograd Regional Department of Forensic Medicine where he was examined by two medical experts. It can be seen from the medical report of the same date that he had numerous bruises on his forehead, left shoulder, left shoulder-blade and right leg, which had been caused by the impact of blunt objects. The injuries to his back and leg could have been the result of bumping against protruding objects. The applicant also had abrasions on his forearms, which had been caused by a sharp object, possibly a nail. Lastly the doctors recorded thermoelectrical burns on the applicant’s fingers. They found that all injures had been inflicted one or two days before. 10. On 28 March 2003 the police arrested and allegedly beat the applicant’s wife and sister. They were released on 31 March 2003. On the same day the applicant’s sister was examined by a doctor who reported many bruises on her chest and waist and brain concussion. The applicant’s wife was diagnosed with post-traumatic perforated otitis. 11. On 29 March 2003 the applicant’s mother-in-law was also arrested and questioned by police officer Mr T. According to her testimony, he was drunk. He hit her several times in the face and verbally abused her. She was released on the same day. It transpires from a medical certificate issued on 30 March 2003 that she had a bruise on her face. 12. The applicant stated that he had complained to the prosecutor’s office about his ill-treatment, but had received no reply. He then signed a power of attorney for his mother who, on 26 August 2004, filed a complaint about the applicant’s ill-treatment with the prosecutor’s office. The applicant’s wife, sister and mother-in-law also complained that they had been beaten by Mr T., a deputy head of police department no. 2, and the subordinate police officers. 13. The Tsentralniy District prosecutor questioned one of the police officers of police department no. 2 and he denied beating the applicant. No other investigative measures were taken. On 3 September 2004 the Tsentralniy District prosecutor refused to initiate criminal proceedings against the policemen, finding that there was no evidence of ill-treatment. He observed that the applicant had never complained about ill-treatment to the investigator in charge of his criminal case. He also noted that it had been impossible to question Mr T. as he had been on mission in Chechnya. 14. The applicant challenged the decision of 3 September 2004 before the Tsentralniy District Court of Volgograd. 15. On 22 March 2005 the Volgograd Regional prosecutor set aside the decision of 3 September 2004 and ordered an additional inquiry. On 14 December 2005 the Tsentralniy District Court of Volgograd discontinued the proceedings as the decision of 3 September 2004 had been annulled. 16. On 3 April 2005 the Tsentralniy District prosecutor for a second time refused to open criminal proceedings. 17. On 5 December 2005 the Volgograd Regional prosecutor set the decision aside and ordered that the Tsentralniy District prosecutor conduct an additional inquiry, and in particular question the applicant, his wife, mother and sister, his co-defendants, co-detainees, Mr T. and other police officers of police department no. 2, and obtain a medical examination of the applicant. 18. In December 2005 and January 2006 the Tsentralniy District prosecutor questioned the applicant’s mother, sister, wife and mother-in-law, who described the circumstances of the applicant’s arrest and complained that they had been intimidated and hit by Mr T. He also questioned Mr T. and another police officer, who denied beating the applicant or any of his relatives. On 24 January 2006 the Tsentralniy District prosecutor for a third time refused to open criminal proceedings, finding that there was no evidence of ill-treatment. He noted that the applicant had never complained about ill-treatment. All complaints had been lodged by his mother after the criminal case against the applicant had been referred for trial. The mother “had been motivated by the desire to help her son avoid criminal responsibility for the serious criminal offences committed by him”. 19. On the same day the decision was set aside by the prosecutor’s immediate superior, who ordered an additional inquiry. 20. On 27 February 2006 the Tsentralniy District prosecutor for a fourth time refused to open criminal proceedings. He established on the basis of medical documents that the applicant and his relatives had received injuries. However, given that the policemen denied beating them, it was not possible to establish with certainty that the injuries had been inflicted by the police. 21. On 16 March 2006 the decision was set aside by the senior prosecutor, who found that the district prosecutor had not carried out the investigative measures specified in the decision of 5 December 2005 and ordered additional enquiries. 22. On 25 March 2006 the Tsentralniy District prosecutor again refused to open criminal proceedings, repeating verbatim the decision of 27 February 2006. 23. The applicant’s mother challenged the decision before a court. On 22 June 2006 the Tsentralniy District Court of Volgograd quashed the decision, finding that the prosecutor had never questioned the applicant about the alleged ill-treatment and had failed to identify the police officers who could have been responsible for it. 24. On 8 August 2006 the Tsentralniy District prosecutor questioned the applicant, who provided a detailed account of his ill-treatment and again refused to open criminal proceedings for the same reasons as before. 25. On 9 October 2006 the decision was set aside by the superior prosecutor, who found that the inquiry had been incomplete. He ordered that the district prosecutor question the applicant’s co-defendants and the police officer who had arrested the applicant. 26. On 19 October 2006 the Tsentralniy District prosecutor questioned the arresting officer who denied beating the applicant. He also questioned the applicant’s co-defendants, who testified that they had seen the policemen beating the applicant or had seen his injuries. On the same day he issued a decision refusing to open criminal proceedings against the policemen for the same reasons as before. 27. The applicant’s mother challenged the decision before a court. On 18 December 2006 the Tsentralniy District Court found that she had no standing to complain about her son’s ill-treatment. On 27 February 2007 the Volgograd Regional Court quashed the decision of 18 December 2006 on appeal, finding that the applicant’s mother had a power of attorney signed by the applicant and had been officially recognised as his representative. It remitted the case to the District Court. 28. On 12 April 2007 the Tsentralniy District Court annulled the prosecutor’s decision of 19 October 2006. It found that the applicant’s allegations of ill-treatment were corroborated by medical evidence and by witnesses. The prosecutor had given insufficient reasons for the refusal to open criminal proceedings. 29. On 28 May 2007 the Tsentralniy District prosecutor again refused to open criminal proceedings. He found it was not possible to establish with certainty that the applicant’s and his relatives’ injuries had been inflicted by the police. 30. The applicant’s mother challenged the decision before the Tsentralniy District Court. On 22 October 2007 the Tsentralniy District Court set aside the prosecutor’s decision, finding that the prosecutor had failed to correct the defects pointed out in the judicial decision of 12 April 2007. In particular, he had not conducted a further inquiry or given sufficient and convincing reasons for the refusal to open criminal proceedings. 31. On 31 March 2008 a deputy Prosecutor of the Volgograd Region referred the case to the Volgograd Regional Investigations Committee with a recommendation to carry out an additional inquiry. It was necessary to question the policemen, the applicant’s co-defendants and his neighbours and conduct other investigative measures. 32. On 9 June 2008 the Investigations Committee of the Tsentralniy District of Volgograd refused to open criminal proceedings against the policemen, repeating verbatim the decision of 28 May 2007. It appears that no additional enquiries were made. 33. On 4 September 2008 the Investigations Committee of the Tsentralniy District of Volgograd reconsidered its previous decision and decided to open criminal proceedings into the fact of the applicant’s ill-treatment by unidentified police officers. 34. On 3 October 2008 the applicant was granted victim status. 35. On 30 January 2003 the Voroshilovskiy District Court of Volgograd formally remanded the applicant in custody on charges of unlawful possession of weapons and forgery of identity documents. It found that the applicant did not deny that he unlawfully possessed weapons and that official seals had been found in his apartment. The court referred to the gravity of the charges, the applicant’s previous criminal record and the fact that he had no dependants, which gave reason to believe that he might abscond or interfere with the investigation. 36. The trial started on 25 November 2003. 37. On 6 April 2004 the Dzerzhinskiy District Court of Volgograd convicted the applicant as charged and sentenced him to three years’ imprisonment starting from 28 January 2003. 38. On 27 July 2004 the Volgograd Regional Court upheld the judgment on appeal. 39. On 28 January 2006 the applicant completed his sentence. 40. On 18 April 2003 the applicant was charged with inflicting serious injuries. 41. On an unspecified date the applicant’s case was joined with the cases of five other persons who had allegedly acted in conspiracy with the applicant. 42. On 20 October 2003 the applicant and his co-defendants were charged with organising an armed criminal gang, several counts of aggravated robbery, inflicting serious injuries and two counts of murder. 43. On 12 April 2004 the investigation was completed and six defendants, including the applicant, were committed for trial before the Volgograd Regional Court. 44. The defendants asked for a trial by jury. 45. On 20 April 2004 the Volgograd Regional Court fixed a preliminary hearing for 27 April 2004 to examine the request. 46. On 27 April 2004 the Volgograd Regional Court ordered that the defendants be tried by jury and fixed the opening date of the trial at 24 May 2004. 47. The hearings of 24 May, 28 June and 12 July 2004 were adjourned as a jury could not been formed. 48. On 14 September 2004 the jury was formed and the trial started on 29 September 2004. 49. Until the end of 2004 the court scheduled twenty hearings. Eight hearings were held as planned while five more hearings started but were interrupted in the middle and adjourned, as prosecution witnesses did not appear. Two hearings were rescheduled due to a power cut in the court building or to the absence of available courtrooms. Five hearings were postponed at the request of the defence. 50. In 2005 the court scheduled forty hearings. Sixteen hearings were held as scheduled. Eight hearings were postponed as a juror failed to appear and five hearings did not go ahead due to the absence of prosecution witnesses. Eleven hearings were adjourned at the request of the defence or because counsel for one of the defendants did not appear. 51. In 2006 the court scheduled thirty-six hearings. Sixteen hearings were held as scheduled. Eight hearings did no go ahead as a juror or prosecution witnesses did not appear. Twelve hearings were adjourned due to counsel’s absence or following a motion for adjournment by the defence team. 52. In 2007 the court scheduled thirty-one hearings. Thirteen hearings were held as planned. Eleven hearings were adjourned as the judge was ill, was on leave or was drafting judgments in unrelated cases, or because a juror did not appear. Seven hearings were postponed at the request of the defence team. 53. At the end of March 2008 the court scheduled thirteen hearings. Only three hearings were held as scheduled. Four hearings were adjourned at the request of the prosecutor. Three hearings did not go ahead as counsel for the victim was ill. Three hearings were adjourned because counsel for one of the defendants did not appear. 54. The proceedings are still pending before the trial court. 55. On 18 April 2003 the applicant gave an undertaking not to leave the town. 56. On 29 April 2003 the Tsentralniy District Court of Volgograd remanded the applicant in custody. The court referred to the gravity of the charge and the risk of the applicant’s interfering with the investigation. 57. On 23 June 2003 the Tsentralniy District Court extended the applicant’s detention until 10 September 2003, referring to the gravity of the charge and necessity of further investigation. 58. On 8 September 2003 the Tsentralniy District Court extended the applicant’s detention until 10 December 2003, referring to the gravity of the charge and the complexity of the case. It noted that the applicant had initially been bound by an undertaking not to leave his place of residence, but that that preventive measure had been considered insufficient in view of the gravity of the charges and the risk of his absconding. 59. On 4 December 2003 the Tsentralniy District Court extended the applicant’s and a co-defendant’s detention until 10 April 2004, referring to the need for an additional investigation, the gravity of the charges and the applicant’s unemployment. The court found that there was a risk of the defendants’ absconding or re-offending. 60. On 20 April 2004 the Volgograd Regional Court accepted the case for trial and held that all six defendants should remain in custody. 61. On 27 April 2004 the Volgograd Regional Court ordered that the defendants remain in custody pending trial. 62. On 13 October 2004 the Volgograd Regional Court extended the defendants’ detention until 12 January 2005, referring to the gravity of the charges. 63. The applicant appealed, claiming that he resided permanently in Volgograd and that there was no reason to believe that he would abscond or interfere with the proceedings. On 14 December 2004 the Supreme Court upheld the extension order on appeal. It found that the applicant had been charged with serious and particularly serious criminal offences and that his arguments were not sufficient to warrant the quashing of the extension order. 64. On 12 January 2005 the Volgograd Regional Court extended the defendants’ detention, referring to the gravity of the charges and the risk of pressure on witnesses and jurors. 65. In his grounds of appeal the applicant submitted that he had never put pressure on witnesses and that there was no danger of his hampering the court proceedings. On 1 March 2005 the Supreme Court upheld the extension order on appeal. It repeated verbatim its reasoning set out in the decision of 14 December 2004. 66. On 7 April 2005 the Volgograd Regional Court extended the defendants’ detention until 12 July 2005. The Regional Court found that, in view of the gravity of the charges, it was “opportune” to keep the defendants in custody. It rejected their requests to release them under an undertaking not to leave the town, as it could not exclude the risk of pressure on witnesses or jurors. The court found irrelevant the applicant’s argument that it was not necessary to extend his detention as he was currently serving his sentence under the judgment of 6 April 2004 and, for that reason, could not tamper with witnesses or threaten jurors. It noted that the purpose of the applicant’s detention was to ensure that the criminal proceedings were completed in good time. On 8 July 2005 the Supreme Court upheld the extension order on appeal. 67. On 29 June 2005 the Volgograd Regional Court extended the defendants’ detention until 12 October 2005. It found that the defendants might interfere with the proceedings, as they were charged with serious criminal offences, including being members of an armed criminal gang, supposedly organised by the applicant. On 31 August 2005 the Supreme Court upheld the extension order on appeal. 68. On 4 October 2005 the Volgograd Regional Court extended the defendants’ detention until 12 January 2006 for the same reasons as before. 69. On 5 July 2006 the Volgograd Regional Court extended the defendants’ detention until 12 October 2006 for the same reasons as before. 70. In his grounds of appeal the applicant complained that the extension order had been poorly reasoned and the court’s conclusions that he could abscond or put pressure on witnesses had been hypothetical and had not been supported by relevant facts. On 26 September 2006 the Supreme Court upheld the extension order on appeal. It held that the gravity of the charges was a sufficient reason for the defendant’s continued detention. 71. On 2 October 2006 the Volgograd Regional Court extended the defendants’ detention until 12 January 2007, referring to the gravity of the charges and the defendants’ “characters”. The court also indicated that the purpose of the detention was to eliminate any risk of the defendants’ absconding, re-offending or hampering the court proceedings. 72. The applicant appealed, claiming that the Regional Court had used a stereotyped formula to justify his detention and that its conclusions had been hypothetical. He also complained that he had not been given access to the materials submitted by the prosecution in support of their request for extension. 73. On 28 December 2006 the Supreme Court upheld the extension order on appeal, finding that it had been lawful, well-reasoned and justified. The defendants were charged with serious criminal offences, therefore they might abscond, re-offend or obstruct the proceedings. The allegedly excessive length of their detention, their poor health and permanent place of residence were not sufficient reasons to warrant release. 74. On 27 December 2006 the Volgograd Regional Court extended the defendants’ detention until 12 April 2007 for the same reasons as before. 75. On 10 April 2007 the Volgograd Regional Court extended the defendants’ detention until 12 July 2007 for the same reasons as before. 76. On 9 July 2007 the Volgograd Regional Court extended the defendants’ detention until 12 October 2007, finding that there was no reason to vary the preventive measure. 77. In his grounds of appeal the applicant submitted that the length of his detention had exceeded a reasonable time and asked the court to place him under home arrest. On 27 September 2007 the Supreme Court upheld the extension order on appeal, finding that it had been lawful, well-reasoned and justified. 78. On 11 October 2007 the Volgograd Regional Court extended the defendants’ detention until 12 January 2008, referring to the gravity of the charges and the risk of his absconding or intimidating the witnesses or jurors. 79. On 9 January 2008 the Volgograd Regional Court extended the defendants’ detention until 12 April 2008 for the same reasons as before. 80. On 8 April 2008 the Volgograd Regional Court rejected the applicant’s request to be released under an undertaking not to leave his place of residence and extended the defendants’ detention until 12 July 2008. The decision reads as follows: “As the trial has not yet been completed, it is necessary to extend the defendants’ detention. The court considers that the gravity of the charges justifies applying to the defendants a preventive measure in the form of detention. However, in addition to the gravity of the charges – namely organisation of an armed gang under [the applicant’s] leadership and commission of assaults on citizens and murders – carrying a sentence of up to twenty years’ imprisonment for each of the defendants, the court also takes into account other factors. Thus, the court is entitled to believe that ... application to the defendants of an undertaking not to leave the town or other preventive measures will not exclude the possibility of their absconding or exercising pressure on participants to the proceedings and jurors. The defendants’ argument that their detention has been excessively long is not in itself sufficient to warrant release. The defendants have not produced any material showing the existence of factors making impossible [sic] their stay in detention facility conditions. The court is not convinced by the defendants’ argument that they have not been granted access to the materials submitted by the prosecution in support of their requests for extension. The court has at its disposal only the materials from the criminal case file which had been studied by the defendants. The court considers that the grounds for the detention of the defendants charged with serious and particularly serious criminal offences are relevant and sufficient. Their detention serves the interest of the society, as it prevents commission of similar criminal offences and ensures high-quality and effective examination of the present criminal case. The criminal case file contains sufficient evidence against each defendant to justify an extension of their detention ...” 81. On 7 July 2008 the Volgograd Regional Court extended the defendants’ detention until 12 October 2008, repeating verbatim the decision of 8 April 2008. 82. The applicant appealed, complaining that the decision had been taken in his absence and that the court had relied only on the gravity of the charges against him. On 10 September 2008 the Supreme Court upheld the extension order on appeal, finding that it had been lawful, well-reasoned and justified. 83. On 10 October 2008 the Volgograd Regional Court extended the defendant’s detention until 12 January 2009, repeating verbatim the decision of 8 April 2008. 84. On 4 April 2003 the investigator impounded the applicant’s two cars as physical evidence in the criminal proceedings against him. 85. On 30 January 2006 the Dzerzhinskiy District Court of Volgograd ordered that the police return the cars to the applicant. The decision was not appealed against and became enforceable. 86. On 27 February 2006 the bailiffs opened enforcement proceedings. 87. On 26 April 2006 one of the cars was returned to the applicant’s mother. 88. On 29 August 2006 the other car, a Mercedes 230, was also returned to the applicant’s mother. However, it was immediately impounded again as physical evidence in connection with unrelated criminal proceedings opened at the request of its former owner, who had complained that the car had been stolen from him. It appears that the criminal proceedings are still pending. 89. On 6 September 2006 the bailiffs found that the judgment of 30 January 2006 had been enforced in full and terminated the enforcement proceedings. 90. Abuse of office associated with the use of violence or entailing serious consequences carries a punishment of up to ten years’ imprisonment (Article 286 § 3 of the Criminal Code). 91. The Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, the CCrP), establishes that a criminal investigation may be initiated by an investigator or prosecutor upon the complaint of an individual (Articles 140 and 146). Within three days, upon receipt of such complaint, the investigator or prosecutor must carry out a preliminary inquiry and make one of the following decisions: (1) to open criminal proceedings if there are reasons to believe that a crime has been committed; (2) to refuse to open criminal proceedings if the inquiry reveals that there are no grounds to initiate a criminal investigation; or (3) to refer the complaint to the competent investigative authority. The complainant must be notified of any decision taken. The refusal to open criminal proceedings is amenable to an appeal to a higher prosecutor or a court of general jurisdiction (Articles 144, 145 and 148). 92. “Preventive measures” or “measures of restraint” (меры пресечения) include an undertaking not to leave a town or region, personal surety, bail and detention (Article 98). If necessary, the suspect or accused may be asked to give an undertaking to appear (обязательство о явке) (Article 112 of CCrP). 93. When deciding on a preventive measure, the competent authority is required to consider whether there are “sufficient grounds to believe” that the accused would abscond during the investigation or trial, reoffend or obstruct the establishment of the truth (Article 97). It must also take into account the gravity of the charge, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (Article 99). 94. Detention may be ordered by a court if the charge carries a sentence of at least two years’ imprisonment, provided that a less restrictive preventive measure cannot be applied (Article 108 § 1). 95. After arrest the suspect is placed in custody “during the investigation”. The period of detention during the investigation may be extended beyond six months only if the detainee is charged with a serious or particularly serious criminal offence. No extension beyond eighteen months is possible (Article 109 §§ 1-3). The period of detention “during the investigation” is calculated up to the date on which the prosecutor sends the case to the trial court (Article 109 § 9). 96. From the date on which the prosecutor refers the case to the trial court, the defendant’s detention is “before the court” (or “during the trial”). The period of detention “during the trial” is calculated up to the date of the judgment. It may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3).