CASE OF BLOKHIN v. RUSSIA
Preliminary objections dismissed (Article 35-1 - Exhaustion of domestic remedies;Six month period);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Article 5-1-d - Educational supervision;Minors);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Criminal charge;Fair hearing) (Article 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial);Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Criminal charge;Fair hearing) (Article 6-3-d - Obtain attendance of witnesses;Article 6 - Right to a fair trial);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Aleš Pejchal;András Sajó;Dean Spielmann;Dmitry Dedov;Erik Møse;George Nicolaou;Guido Raimondi;Helen Keller;Isabelle Berro-Lefèvre;Ján Šikuta;Josep Casadevall;Julia Laffranque;Khanlar Hajiyev;Ledi Bianku;Luis López Guerra;Mark Villiger;Mirjana Lazarova Trajkovska;Robert Spano;Ksenija Turković
9. The applicant was born in 1992 and lives in Novosibirsk. 10. At some point before September 2004, the applicant’s parents were deprived of their parental responsibility and the applicant was placed in a local orphanage until his grandfather was assigned as his guardian in October 2004 and the applicant was placed with him. On 28 February 2005 the grandfather’s guardianship was revoked but he was reinstated as guardian at the beginning of 2006. 11. From 2002 to 2005, the applicant allegedly committed offences prohibited by the Criminal Code of the Russian Federation, including disorderly acts, aggravated robbery and extortion, alone or in a group of minors. Since he was under the age of criminal responsibility, no criminal proceedings were instituted against him but he was the subject of five pre-investigation inquiries and placed under the supervision of the Juveniles Inspectorate within the Department of the Interior of the Sovetskiy District of Novosibirsk (hereafter “the Juveniles Inspectorate”). Moreover, following the fourth inquiry, he was placed in a temporary detention centre for juvenile offenders on 21 September 2004 for thirty days. 12. According to the applicant’s medical records, he suffered from an attention deficit hyperactivity disorder (a mental and neurobehavioural disorder characterised by either substantial attention difficulties, or hyperactivity and impulsiveness, or a combination of the two; hereafter “ADHD”) and a neurogenic bladder causing enuresis (a disorder involving urinary incontinence). 13. On 27 December 2004 and 19 January 2005 he was examined by a neurologist and a psychiatrist. He was prescribed medication, regular supervision by a neurologist and a psychiatrist and regular psychological counselling. 14. On 3 January 2005 the applicant, who at that time was twelve years old, was at the home of his nine-year old neighbour S. when his mother, Ms S., called the police, who came and took the applicant to the police station of the Sovetskiy District of Novosibirsk. He was not informed of the reasons for his arrest. 15. According to the applicant, he was put in a cell that had no windows and the lights in the cell were turned off. After he had spent about an hour in the dark, he was questioned by a police officer. The police officer told him that S. had accused him of extortion. He urged the applicant to confess, saying that if he did so he would be immediately released, whereas if he refused he would be placed in custody. The applicant signed a confession statement. The police officer then immediately telephoned the applicant’s grandfather to tell him that the applicant was at the police station and could be taken home. When his grandfather arrived at the police station, the applicant retracted his confession and protested his innocence. 16. The Government disputed the applicant’s account of the events at the police station. They submitted that the applicant had been asked to give an “explanation” rather than being formally questioned, that he had been interviewed by a police officer who had pedagogical training, and that he had been apprised of his right to remain silent. He had not been subjected to any pressure or intimidation. His grandfather had been present during the interview. 17. On the same day the applicant’s grandfather signed a written statement describing the applicant’s character and way of life. He stated that two days earlier he had seen the applicant in possession of some money. When asked where the money had come from, the applicant had said that he had got it from his father. 18. S. and his mother were also heard by the police about the incident and they claimed that on two occasions, on 27 December 2004 and 3 January 2005, the applicant had extorted 1,000 roubles (RUB) from S., threatening him with violence if he did not hand over the money. 19. On 12 January 2005 the Juveniles Inspectorate refused to institute criminal proceedings against the applicant. Relying on the applicant’s confession and the statements of S. and S.’s mother, it found it to be established that on 27 December 2004 and 3 January 2005 the applicant had extorted money from S. His actions therefore contained elements of the criminal offence of extortion, punishable under Article 163 of the Criminal Code. However, given that the applicant was below the statutory age of criminal responsibility he could not be prosecuted for his actions. 20. On 3 February 2005 the applicant’s grandfather complained to the Prosecutor’s Office of the Sovetskiy District of Novosibirsk that the applicant, a minor suffering from a psychological disorder, had been intimidated and then questioned in the absence of his guardian and that his confession had been obtained under duress. The grandfather requested that the confession statement be declared inadmissible as evidence and that the pre-investigation inquiry be closed on account of lack of evidence of an offence, rather than the applicant’s age. 21. On 8 June 2005 the Prosecutor’s Office of the Sovetskiy District of Novosibirsk quashed the decision of 12 January 2005, finding that the preinvestigation inquiry had been incomplete. It ordered a further pre-investigation inquiry. 22. On 6 July 2005 the Juveniles Inspectorate again refused to institute criminal proceedings against the applicant, for the same reasons as before. 23. During the following months the applicant’s grandfather lodged several complaints with prosecutors’ offices of various levels, asking for a fresh examination of the case against the applicant. He complained that the applicant’s confession had been obtained as a result of intimidation by the police; in particular, he had been placed in a dark cell for an hour and he had then been questioned by a police officer in the absence of a guardian, psychologist or teacher. The police officer had coerced the applicant into signing the confession statement without the benefit of legal advice. He had then issued a decision refusing to institute criminal proceedings on the ground that the applicant had not reached the statutory age of criminal responsibility, while stating at the same time that the applicant’s involvement in extortion had been established. 24. By letters of 4 August, 9 November and 16 December 2005 the Prosecutor’s Office of the Sovetskiy District of Novosibirsk and the Prosecutor’s Office of the Novosibirsk Region replied that no criminal proceedings had been instituted against the applicant on grounds of his age. He therefore did not have the status of a suspect or a defendant. On 3 January 2005 he had been asked to give an “explanation” rather than questioned by the police. In those circumstances the participation of a lawyer, psychologist or teacher had not been mandatory. There was no evidence that the applicant had been held in a dark cell before the interview and he had had to wait no more than ten minutes for an officer from the Juveniles Inspectorate to arrive and interview him. That the applicant had committed extortion had been established on the basis of the statements of S. and S.’s mother and the applicant’s admission of guilt during the interview of 3 January 2005. 25. On 10 February 2005 the Head of the Sovetskiy District Police Department of Novosibirsk asked the Sovetskiy District Court of Novosibirsk to order the applicant’s placement in a temporary detention centre for juvenile offenders. 26. On 21 February 2005 the Sovetskiy District Court held a hearing at which the applicant and his grandfather attended and submitted medical certificates confirming that the applicant suffered from a psychological disorder and enuresis. 27. On the same day the court delivered its judgment in which it ordered the applicant’s placement in the temporary detention centre for juvenile offenders for thirty days. It held as follows: “The Head of the Sovetskiy District Police Department of Novosibirsk has applied to the court with a request to place [the applicant], who has been registered with the [Juveniles] Inspectorate as a delinquent minor since 4 January 2002, in the temporary detention centre for juvenile offenders for thirty days. On 14 May 2003 [the applicant] committed an offence proscribed by Article 161 of the Criminal Code of the Russian Federation. A criminal case was not opened because he had not reached the age of criminal responsibility. On 24 July 2003 [the applicant] again committed an offence proscribed by Article 213 of the Criminal Code of the Russian Federation. A criminal case was not opened because he had not reached the age of criminal responsibility. On 27 August 2004 [the applicant] again committed a criminal offence under Article 161 of the Criminal Code of the Russian Federation. A criminal case was not opened because he had not reached the age of criminal responsibility. [The applicant] was placed in the temporary detention centre for juvenile offenders for thirty days. The minor lives in unfavourable family conditions in which his grandfather is responsible for his upbringing in so far as possible; [the applicant’s] parents are alcoholics and have a negative influence on their son. Before [the grandfather] was given guardianship status, [the applicant] had lived in an orphanage and studied in school no. 61. At the material time he studied in school no. 163, often played truant from school, and stopped attending school entirely from December onwards. Given that the requisite control over him is absent, the minor spends the major part of his day on the streets, committing socially dangerous offences. On 27 December 2004 [the applicant] committed another offence proscribed by Article 163 of the Criminal Code of the Russian Federation; a criminal case was not opened because he had not reached the age of criminal responsibility. Taking the above-mentioned circumstances into account, [the Head of the Police Department] considers it necessary to place [the applicant] in the temporary detention centre for juvenile offenders for a period of thirty days to prevent his further unlawful actions. The representative of the Juveniles Inspectorate supported the request made by the Head of the Police Department and explained that [the applicant’s] guardian had requested in writing that his guardianship rights be lifted and the [Inspectorate] had accepted that request. [The applicant] refused to provide any explanations. The [applicant’s] representative [the grandfather] objected to [the applicant’s] placement in the temporary detention centre, having noted that [the applicant] had not committed a criminal offence on 27 December 2004 as he had been with [the grandfather] at a doctor’s surgery for an examination at that time. The lawyer, Ms [R.], asked the court to dismiss the request of the Head of the Police Department. The prosecutor asked the court to accept the request and to place [the applicant] in the temporary detention centre for juvenile offenders, taking into account that the documents presented by [the applicant’s] guardian did not confirm that [the applicant] had been at a doctor’s surgery on 27 December 2004 at 1 p.m. or that he had been unable to commit the criminal offence, particularly taking into account the [applicant’s] personality and the fact that he had already committed a number of offences. Having heard the parties to the proceedings and having examined the materials submitted by them, the court considers that the request must be allowed for the following reasons: [the applicant] is registered in the database of [the Juvenile Department of the police]; he was previously placed in the [temporary detention centre for juvenile offenders] for behaviour correction but did not draw the proper conclusions and committed further delinquent acts; the preventive measures put in place by the [Juveniles] Inspectorate and by the guardian have not produced results, which shows that [the applicant] has not learnt his lesson. [The applicant] must be placed in the [temporary detention centre for juvenile offenders] for thirty days for behaviour correction. The case-file materials examined by the court confirm that [the applicant] committed a socially dangerous offence: a complaint by Ms [S.] shows that on 27 December 2004, at approximately 1 p.m., [the applicant] extorted 1,000 roubles from her son [S.] in a yard; he accompanied those actions with threats of violence. On 3 January 2005 [the applicant] again came to their house and again extorted 1,000 roubles from her son, having again threatened the son with violence. Explanations by [S.] indicate that on 27 December 2004, at approximately 1 p.m., [the applicant] told [S.] to give him 1,000 roubles in a yard; he accompanied those actions with threats of violence and [S.] gave him the money. On 3 January 2005 [the applicant] again came to their house and requested 1,000 roubles from [S.], having again threatened him with violence. [S.] complained to his mother, who called the police. The court takes into account that those circumstances are corroborated by the statement made by [the applicant], who did not deny that he had received money from [S.] on 27 December 2004 as the latter had been afraid of the applicant. [The applicant] also did not deny that he had come to [S.’s] house on 3 January 2005. A criminal case in respect of the events on 27 December 2004 and 3 January 2005 was not opened as the applicant had not reached the age of criminal responsibility. Having taken these circumstances into account, the court finds unsubstantiated and far-fetched the explanations by the applicant’s guardian that [the applicant] did not commit the offences on 27 December 2004 and 3 January 2005. Having regard to the above-mentioned facts and ruling under section 22(2)(4) of the Minors Act, the court grants the request of the Head of the Police Department and decides to place the applicant in the temporary detention centre for juvenile offenders for thirty days.” 28. On 21 February 2005 the applicant was placed in the Novosibirsk temporary detention centre for juvenile offenders, where he remained until 23 March 2005. 29. According to the applicant, he had shared his bedroom in the centre with seven other inmates. The lights were kept on all night. 30. During the day inmates were forbidden to lie on their beds or to enter the bedroom. They had to spend the whole day in a large empty room which had no furniture or sports equipment. On a few occasions they were given a chess set and other board games. They were allowed to go out into the yard only twice during the applicant’s thirty-day stay in the centre. 31. Inmates had classes twice a week for about three hours. They had mathematics and Russian grammar classes only. They were not taught any other courses from the officially approved secondary school curriculum. About twenty children of different ages and school levels were taught together in one class. 32. The supervisors applied collective punishment to the inmates. If one of them committed a breach of the centre’s strict regime, all inmates were forced to stand in line against the wall without moving, talking or being allowed to sit down. Given that many inmates were psychologically unstable and unruly, because of their socially disadvantaged background, such punishment was applied every day and often lasted for hours. 33. Inmates were not allowed to leave the room where they were assembled. They had to ask for the supervisor’s permission to go to the toilet and were accompanied there in groups of three. They therefore had to wait until such a group was formed before being able to go to the toilet. Given that the applicant suffered from enuresis, the fact that he could not go to the toilet as often as he needed caused him bladder pain and psychological suffering. If his requests for permission to go to the toilet became too frequent, the supervisors punished him by making him do particularly arduous cleaning work. 34. Although the applicant’s grandfather had informed the staff of the centre about the applicant’s enuresis and his attention deficit hyperactivity disorder, the applicant did not receive any treatment. 35. According to the Government, each bedroom in the temporary detention centre for juvenile offenders measured seventeen square metres and was equipped with four beds. Access to the bathrooms and toilets situated on each floor was not limited. 36. The centre had a dining room where meals were served five times a day. There was also a games room and a sports room. Audio and video equipment, educational games and fictional works were available. 37. The supervisors carried out “preventive work” with each inmate of the centre and could apply incentive measures or punitive measures in the form of oral reprimands. Corporal punishment was not used; nor were juvenile inmates ever required to do hard or dirty work. 38. The centre’s medical unit had all the necessary equipment and medicine. It could be seen from the staff list of the centre submitted by the Government that the medical unit was staffed by a paediatrician, two nurses and a psychologist. According to the Government, each child was examined by the paediatrician on his admission and every day thereafter. Treatment was prescribed when necessary. It could be seen from the temporary detention centre’s “accounting and statistical record” concerning the applicant that he had not informed the doctor about his enuresis. 39. The applicant’s personal file, containing, in particular, the information about his medical condition on admission, the preventive work carried out and the punishment applied to him, had been destroyed on 17 January 2008 after the expiry of the statutory time-limit on storage, in accordance with Order no. 215 of the Ministry of the Interior of 2 April 2004 (see paragraph 73 below). However, the Government stated that the applicant’s “accounting and statistical record”, referred to above, had been retained since its storage period was unlimited in accordance with Order no. 215 (see paragraph 74 below). 40. According to the Government, the applicant’s other medical records and logbooks at the temporary detention centre had been destroyed as soon as they had become unnecessary, without any records being compiled in this respect. This had been possible because there had been no regulations on storing such documents until Order no. 340 of the Ministry of the Interior had entered into force on 12 May 2006 (which provided that medical records were to be stored for three years). 41. However, the Government submitted a written statement by a supervisor at the detention centre dated 23 December 2010. She confirmed the Government’s description of the conditions of detention in the centre. She also stated that one of the supervisors was always present in the room where the inmates were gathered, which ensured continuity of the educational process. Teachers from the neighbouring school regularly came to the centre so that the inmates could follow the secondary-school curriculum. After their release from the centre, they received an education progress record. She stated that she did not remember the applicant but asserted that she had not received any requests or complaints from him or from any other inmate. 42. The Government also submitted a copy of an agreement of 1 September 2004 between the detention centre and secondary school no. 15 according to which the school undertook to organise secondary-school courses in the centre in accordance with a curriculum developed by the centre. A copy of an undated two-week curriculum was produced by the Government. It included four classes per day on Tuesdays, Thursdays and Fridays. 43. On 23 March 2005 the applicant was released from the detention centre. On the following day he was taken to hospital, where he received treatment for neurosis and attention deficit hyperactivity disorder. He remained at the hospital until at least 21 April 2005. 44. On 31 August 2005 the applicant was placed in an orphanage and, according to an extract from the applicant’s medical record drawn up at the orphanage, he was on the run between 14 September and 11 October 2005 and again between 13 and 23 October 2005. 45. On 1 November 2005 he was transferred to a children’s psychiatric hospital, where he remained until 27 December 2005. At some point after this, he was returned to his grandfather who had been reinstated as his guardian. 46. On 4 October 2005 the applicant’s grandfather complained to the Prosecutor General’s Office that the applicant, who suffered from a mental disorder, had not received any medical treatment in the temporary detention centre for juvenile offenders, which had caused a deterioration in his condition; nor had he been provided with any educational courses. He reiterated his complaints to the prosecution authorities in a letter dated 30 November 2005. While the Prosecutor’s Office of the Sovetskiy District of Novosibirsk sent a reply to the applicant’s grandfather on 9 November 2005 and the Prosecutor’s Office of the Novosibirsk Region sent a reply on 16 December 2005, both of these dealt exclusively with the procedural issues related to the applicant’s case (see paragraph 24 above) and did not contain any answer to the grandfather’s complaints in so far as they related to the applicant’s health and the conditions of detention. 47. Meanwhile, on 2 March 2005, the applicant’s grandfather appealed against the detention order of 21 February 2005. He submitted, firstly, that the detention was unlawful because the Minors Act did not permit detention for “behaviour correction”. Secondly, he complained that he had not been informed of the decision of 12 January 2005 refusing to institute criminal proceedings against the applicant and had therefore been deprived of an opportunity to appeal against it. He further submitted that the court’s finding that the applicant had committed an offence had been based on the statements of S. and his mother and the applicant’s confession statement. However, the applicant had made his confession statement in the absence of his guardian. Nor had a teacher been present. No teacher had been present during the questioning of S. either. Their statements were therefore inadmissible as evidence. Moreover, S. and his mother had not attended the court hearing and had not been heard by the court. Nor had the court verified the applicant’s alibi. Lastly, the applicant’s grandfather complained that the court had not taken into account the applicant’s frail health and had not verified whether his medical condition was compatible with detention. 48. On 21 March 2005 the Novosibirsk Regional Court quashed the detention order of 21 February 2005 on appeal. It found that behaviour correction was not among the grounds listed in section 22(2)(4) of the Minors Act for placing a minor in a temporary detention centre for juvenile offenders. Detention for behaviour correction therefore had no basis in domestic law. Moreover, the District Court had not stated reasons why it considered it necessary to detain the applicant. The mere fact that the applicant had committed an offence for which he was not liable to prosecution because of his age could not justify his detention. Such detention would be permissible only if one of the additional conditions listed in section 22(2)(4) of the Minors Act (see paragraph 66 below) was met. The Regional Court remitted the case to the District Court for fresh examination. 49. On 11 April 2005 the Sovetskiy District Court discontinued the proceedings because the Head of the Sovetskiy District Police Department of Novosibirsk had withdrawn his request for the placement of the applicant in the temporary detention centre for juvenile offenders. The applicant and his grandfather were not informed of the date of the hearing. 50. On 22 March 2006 the applicant’s grandfather lodged an application for supervisory review of the decision of 11 April 2005. He complained that as a result of the discontinuation of the proceedings the applicant had been deprived of an opportunity to prove his innocence in respect of the offence for which he had already unlawfully served a term of detention in the temporary detention centre for juvenile offenders. 51. On 3 April 2006 the President of the Novosibirsk Regional Court quashed the decision of 11 April 2005. He found, firstly, that, in accordance with section 31.2(3) of the Minors Act, a judge examining a request for the placement of a minor in a temporary detention centre for juvenile offenders had the power either to grant or to reject the request. He had no power to discontinue the proceedings. Secondly, the applicant and his guardian had not been informed of the date of the hearing and had therefore been deprived of an opportunity to make submissions on the issue of the discontinuation of the proceedings. 52. On 17 April 2006 the Prosecutor of the Novosibirsk Region lodged an application for supervisory review of the Regional Court’s decision of 21 March 2005. 53. On 12 May 2006 the Presidium of the Novosibirsk Regional Court quashed the decision of 21 March 2005, finding that it had been adopted by an unlawful composition of judges. It remitted the case for a fresh examination on appeal. 54. On 29 May 2006 the President of the Novosibirsk Regional Court held a fresh appeal hearing and upheld the decision of 21 February 2005 ordering the applicant’s placement in the temporary detention centre for juvenile offenders. He found that the applicant had committed a delinquent act punishable under Article 163 of the Criminal Code but that no criminal proceedings had been instituted against him because he had not reached the statutory age of criminal responsibility. He belonged to a “problem family”; his parents had been deprived of parental responsibility and he was cared for by his grandfather. He played truant from school and spent most of the time on the streets or in a computer club. In those circumstances, it had been necessary, in accordance with section 22(2)(4) of the Minors Act, to place him in the temporary detention centre for juvenile offenders for thirty days to prevent him from committing further delinquent acts. The fact that the District Court had referred to “behaviour correction” as a ground for detention had not made the detention order of 21 February 2005 unlawful. The applicant’s detention had been justified by other grounds. Nor could the detention order of 21 February 2005 be quashed on account of the applicant’s frail health, given that it had already been enforced in March 2005.