CASE OF ZELENIN v. RUSSIA
Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković
5. The applicant was born in 1975 and lives in Krasnoyarsk. 6. On 5 February 2006 Mr V.N. informed the local office of the Federal Drug Control Service (“DCS”) that he had purchased heroin from the applicant. The DCS officers then decided to organise a covert operation of the test purchase of the drug. 7. At about 3 p.m. on 6 February 2006 the DCS officers arrived at the applicant’s block of flats and rang at the door of a flat located next to that of the applicant in which two sisters, Ms E.N. and Ms T.N, resided. The DCS officers asked the two women to ring at the applicant’s door so that he would open it unaware of the DCS officers’ presence. Ms E.N. and Ms T.N. refused to cooperate. 8. The DCS officers then waited on the stairway for the applicant to leave the flat. At some point the applicant stepped out of his flat. 9. According to the applicant, three DCS officers forcibly dragged him out of the flat, pushed him to the floor and beat him on the stairway. According to the Government, the applicant showed active resistance by beating and kicking the DCS officers. They had to resort to physical force in order to overcome his resistance, and handcuffed the applicant. 10. Ms E.N. and Ms T.N. observed through the open door that three men were beating and kicking the applicant. 11. According to the Government, the applicant voluntarily allowed a visual inspection of his flat. According to the applicant, he was forced to make a written statement agreeing to the inspection. It is common ground between the parties that the DCS officers then proceeded to carry out the inspection in the presence of two attesting witnesses and discovered syringes with traces of heroin and pieces of aluminium foil. 12. The officers took the handcuffs off the applicant so that he could sign an inspection report. At some point the applicant rose to his feet suddenly and ran at a cupboard with glass doors, ramming it with his head. The cupboard fell on the applicant. 13. The applicant was then brought to the DCS premises. At about 1.50 a.m. on 7 February 2006 he was formally detained as a suspect in a temporary detention cell. 14. Two of the DCS officers presented their hierarchical superior with reports dated 6 February 2006 on the use of physical force in the course of the applicant’s arrest, claiming that the force had been used legitimately to overcome the violent resistance offered by the applicant. 15. On 7 February 2006 the applicant was brought to a trauma centre and then to hospital. He was diagnosed with a closed cerebral injury. 16. On the same day the Kirovskiy District Court of Krasnoyarsk authorised the applicant’s detention. 17. On 9 February 2006 the applicant was transferred to a remand prison. On arrival he was examined by a doctor and diagnosed with a closed cerebral injury as well as injuries to his face and head. 18. On 15 February 2006 the applicant complained to the Kirovskiy district prosecutor’s office of Krasnoyarsk (“the district prosecutor’s office) about the alleged ill-treatment. 19. On 2 March 2006, having conducted a pre-investigation inquiry, the district prosecutor’s office refused to institute criminal proceedings against the DCS officers who had allegedly beaten the applicant on 6 February 2006. They referred to statements made by the DCS officers and one of the attesting witnesses who had been present during the inspection in the flat and concluded that the applicant had resisted lawful arrest and that the use of force and handcuffing had thus been lawful and justified in the circumstances. The district prosecutor’s office also established that the applicant had thrown himself against the cupboard, which had collapsed on the applicant causing him injuries. 20. On 15 November 2006 the Leninskiy District Court of Krasnoyarsk convicted the applicant of drug-related crimes and sentenced him to six years’ imprisonment. The applicant admitted the unlawful procurement and possession of heroin but pleaded not guilty to the charges of supplying the drug to others, inter alia on 5 and 6 February 2006. 21. Between March 2006 and February 2007 the pre-investigation inquiry into the allegation of ill-treatment was resumed on six occasions as the decisions refusing to open a criminal investigation were quashed by either the district prosecutor’s office or the Krasnoyarsk regional prosecutor’s office. 22. On 2 February 2007 the district prosecutor’s office issued another decision refusing to open a criminal investigation. 23. On 13 February 2007 the Krasnoyarsk regional prosecutor’s office quashed the decision of 2 February 2007 on the grounds that the applicant’s neighbours, the N. sisters, had consistently alleged that the applicant had been beaten by the officers; another neighbour had not been questioned at all; and the forensic expert report had not been completed. 24. On 13 February 2007 the Krasnoyarsk Regional Court upheld the conviction of 15 November 2006 on appeal. 25. On 20 February 2007 the district prosecutor’s office ordered a forensic expert examination of the applicant in order to establish the origin of the injuries that he had sustained on 7 February 2006. 26. On 26 February 2007 a forensic expert drew up a report based on medical certificates and X-rays dated February 2006 and the explanations given by the applicant on 22 February 2007. According to the report, the initial diagnosis of a closed cerebral injury had not been confirmed and the bruises could have “resulted either from a beating with a hard blunt object(s) or from falling and hitting the said object(s)”. 27. On 1 March 2007 the district prosecutor’s office again refused to open a criminal investigation into the alleged ill-treatment. They argued, in particular, that the statements by Ms E.N. and Ms T.N. could not be regarded as reliable evidence owing to the fact that “according to the information received, both the N. sisters [were] prostitutes and acquaintances of Mr Zelenin, with whom they [maintained] a friendly relationship, and thus [were] interested in the outcome of Mr Zelenin’s arrest”. They concluded that the DCS officers had used legitimate force to effect the applicant’s arrest. 28. On 28 May 2007 the Kirovskiy District Court of Krasnoyarsk upheld the above decision on judicial review. On 6 September 2007 the Krasnoyarsk Regional Court upheld the first-instance decision. 29. On 26 October 2007 the Investigative Department of the Investigative Committee of the Prosecutor’s Office of Russia for the Krasnoyarsk Region (“the regional investigative committee”) quashed the decision of 1 March 2007. 30. On 15 November 2007 the Investigative Unit of the Investigative Department of the Investigative Committee of the Prosecutor’s Office of Russia for the Kirovskiy District of Krasnoyarsk (“the district investigative committee”) again refused to open a criminal case. Again it was argued that the statements by Ms E.N. and Ms T.N. were to be disregarded since “according to the information received, both the N. sisters [were] prostitutes and acquaintances of Mr Zelenin, with whom they [maintained] a friendly relationship, and thus [were] interested in the outcome of Mr Zelenin’s arrest”. 31. On 30 January 2008 the Kirovskiy District Court of Krasnoyarsk upheld the decision of 15 November 2007 on judicial review. On 5 June 2008 the Krasnoyarsk Regional Court upheld the first-instance ruling. 32. On 23 March 2009 the applicant was released on probation.