CASE OF KOVALEVY v. RUSSIA
Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova
4. The applicants were born in 1957, 1961 and 1980 respectively and live in Svetlograd, Stavropol Region. The first and second applicants are husband and wife. The third applicant is their son. 5. According to the first applicant, on 8 August 2003, at approximately 11.30 p.m., a police patrol car approached his car on a dark village road. A police officer, using a loudspeaker, ordered the first applicant to pull over. The first applicant replied that he would stop at the nearest road police post. The officer repeated his order, noting that he needed to borrow gasoline for the police car. The first applicant kept driving. Near Svetlograd the police officers blocked the road. When the first applicant stopped the car, one of the five policemen pulled him out of the car and hit him in the face. The police officers threw him against the hood of his car, kicked him in the shins and hit him with a butt of a machine gun. The first applicant fell down and fainted. After he regained consciousness and stood up, the police officers claimed that he was drunk and told him to take a breath test which showed that the first applicant was sober. The police officers checked his documents, searched his car and left. The first applicant got into his car and drove away in the same direction. Having driven approximately 500 metres, he saw that the police car had stopped and that the police officers had gathered around it. The first applicant approached the officers. The officer in charge identified himself as Ye. and apologised for the excessive force his subordinates had used towards the first applicant. 6. The first applicant arrived home at approximately 2.30 a.m. on 9 August 2003. On the same day the first and third applicants filed a complaint about the incident with the local police station. 7. At 9 a.m. on the same date the first applicant visited the second applicant who underwent a medical treatment in hospital. According to the second applicant, her husband told her about the altercation with the police. He also had visible bruising on his face. At 10.30 a.m. the first applicant underwent a medical examination at the same hospital. Having been diagnosed with multiple injuries, he was admitted for in-patient treatment. An extract from a medical record drawn up in the hospital indicated that the first applicant had injuries on the right cheek, the left shin and the lower back and the swelling of soft tissues. 8. On 13 August 2003 the first applicant was admitted to the Stavropol Regional Hospital where he was diagnosed with “a multisystem trauma; closed craniocerebral injury; a light brain contusion; an injury of the soft tissues of the right temporal region; a closed uncomplicated stable vertebra medullispinal injury, a compression fracture of the Th. VII vertebra; an intramuscular haematoma of the right side of the lumbar region; a neurologic form of the lumbar plexitis.” Ten days later he was released from hospital on conditions of bed rest and subsequent supervision by a neurologist and orthopaedist. 9. On 11 August 2003 investigator G. questioned the police officers who denied the first applicant’s allegations. They claimed that they had ordered the first applicant to pull over because they had suspected that he had been driving under the influence of alcohol. The first applicant had refused to comply and had verbally insulted them demonstrating obscene hand gestures. After having searched the first applicant and his car, they had let him go. 10. On the same date the investigator ordered a forensic medical examination of the first applicant. Having examined the first applicant, the forensic expert documented multiple injuries on the right cheek and the lumbar region, multiple bruises all over the body and swelling of the soft tissues. The expert considered that those injuries could have resulted from the impact of solid blunt objects or from the fall. 11. On 20 August 2003 the investigator refused to institute criminal proceedings against the police officers. It appears that his decision was quashed on a later date. 12. On 9 September 2003 the first applicant underwent another forensic medical examination. The expert documented the first applicant’s injuries considering that they might have resulted from the impact of solid blunt objects. 13. According to the first applicant, on 20 September 2003 an investigator of the district prosecutor’s office refused to institute criminal proceedings against the police officers. On 3 October 2003 the district prosecutor dismissed the first applicant’s complaint against the investigator’s decision. Ten days later, the Petrovskiy District Court of the Stavropol Region quashed the prosecutor’s decision and authorised a new round of inquiry. 14. On 28 October 2003 the police issued a report on the inquiry conducted in response to the first applicant’s complaint. Having examined the forensic medical documents and the statements made by the police officers, the first applicant and the witnesses, the police investigator concluded that the first applicant might have sustained injuries as a result of the force used by the police officers in response to his unlawful actions. 15. On 21 December 2003 investigator G. ordered a new forensic medical examination of the first applicant in order to reconcile inconsistencies in the experts’ findings. 16. It appears that the first applicant’s complaint about the police brutality was dismissed by the authorities on another six occasions. Each time a superior prosecutor or a court quashed those decisions considering the investigator’s findings incomplete and unsubstantiated and ordering further inquiry into the first applicant’s allegations. 17. On 22 July 2005 the district prosecutor opened a criminal investigation into the first applicant’s allegations of ill-treatment by unidentified police officers. 18. On 22 December 2005 the investigator V. stayed the criminal proceedings, holding that it was impossible to establish the alleged perpetrators who had assaulted the first applicant. 19. On 2 February 2006 the first deputy of the regional prosecutor quashed decision of 22 December 2005 noting that the investigation had not been completed and reopened the proceedings. 20. On 6 March 2006 the investigator concluded that there was no evidence showing that the first applicant’s injuries had been caused by the police officers and that he was unable to establish the real perpetrator. The first applicant appealed. 21. On 3 April 2006 the district prosecutor partly accepted the first applicant’s complaint and resumed the investigation. At the same time the prosecutor endorsed the investigator’s reasoning that there was no evidence showing that the offence had been committed by the police officers. A week later the proceedings were again stayed because the perpetrator of the offence remained unknown. 22. On 6 June 2006 investigator D. again discontinued the criminal investigation. The investigator established that, when searching the first applicant and his car, one of the police officers had punched him on the right cheek and hit him in the back twice with a blunt solid object. The investigator also accepted that, as of the morning of 9 August 2003, the first applicant had bruises on the right cheek, the back and the left shin. He further noted that the forensic medical experts had not ruled out a possibility that the first applicant might have sustained those injuries as a result of the altercation with the police, as alleged by him. The investigator dismissed the first applicant’s allegations referring to his prior criminal record. He also noted that a number of the first applicant’s neighbours had not confirmed that the latter had had any injuries on him on 9 August 2003. As regards the statements made to the contrary by the other neighbours, the investigator found them to be unsubstantiated. Lastly, the investigator took into account that all the police officers denied the first applicant’s accusations. However, it was impossible for the investigator to establish the alleged perpetrator for lack of relevant evidence. 23. It appears that the decision of 6 June 2006 was quashed and the case was re-opened. 24. On 17 July 2006 investigator D. discontinued the criminal investigation reproducing verbatim his earlier decision of 6 June 2006. He also considered that the first applicant had willfully made false accusations against the police officers and should be held liable for his actions. The investigator forwarded the relevant material to the prosecutor’s office. 25. On 14 January 2011 the deputy head of the supervision unit of the Investigative committee considered the decision of 17 July 2006 unlawful and unsubstantiated, quashed it and remitted the matter for further investigation. He noted, inter alia, that the investigator had failed (1) to establish what each of the police officers had done once they had pulled over the first applicant’s car; (2) to check whether any of the police officers had had a machine gun as claimed by the first applicant; and (3) to establish the reasons why the witnesses who had initially claimed that they had seen the police officers beating the first applicant had revoked their statements. 26. On 1 March 2011 the senior investigator with the district investigative committee dismissed the first applicant’s accusations against the police officers duplicating the findings summed up in the earlier decisions on the matter. Nevertheless, he allowed that the first applicant’s injuries could have resulted from the beatings and that a criminal investigation should be opened on charges of battery. He transmitted the materials to the head of the district investigative committee. The parties did not inform about the outcome of the proceedings. 27. On 30 September 2004, at approximately 11.00 p.m., the applicants, suspecting that their neighbour had committed a number of thefts and intended to steal their property, beat him up, broke into his car, took the documents for the car and refused to return them until the arrival of a police patrol car. 28. On 15 June 2005 the Petrovskiy District Court found the applicants guilty of vigilantism and sentenced each of them to two and half years’ imprisonment. The sentence was suspended on eighteen months’ probation. On 4 August 2005 the Stavropol Regional Court upheld the applicants’ conviction on appeal.