CASE OF ALEKSANDRA DMITRIYEVA v. RUSSIA
Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 5;Violation of Art. 8;Violation of Art. 13+5;Violation of Art. 13+8
Anatoly Kovler;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
5. The applicant was born in 1946 and lives in St Petersburg. 6. The applicant, her husband and their son reside in an apartment, which they share with two other families. She suffers from a number of diseases, affecting her skin, kidneys and thyroid gland. The applicant is classed as Category 2 disabled under Russian law. 7. In April 2001 the applicant’s son allegedly beat up Bo., who was a member of one of the families residing in the same apartment. Bo. complained to the police of having been beaten. On 1 October 2002 the applicant’s son was convicted of affray in this connection and given a six-month conditional sentence. 8. At around 5 p.m. on 8 December 2001 K., a neighbourhood police inspector, and police officer S., the Deputy Head of the 28th Section of the St Petersburg Central District Department of the Interior (“the District Department of the Interior”) arrived at the applicant’s apartment to invite the applicant’s son to attend an interview. At the time, he had not been either classed as a suspect or formally charged. Bo. let the officers into the apartment and they saw the applicant’s son entering his room and locking the door behind him. 9. The applicant blocked the way to her son’s door. S. explained the reasons for their visit to the applicant, but the applicant asked them to leave. According to S., the applicant verbally insulted him and punched him several times in the chest. The applicant disagreed and submitted that she had simply blocked access to the door, but did not insult or punch anyone. 10. The applicant’s neighbours, who were present during the incident, later confirmed that the applicant had used abusive language and had tried to hit S. 11. K. then left the building in order to prevent the applicant’s son from escaping through a window and S. stayed in the apartment and called the police, asking them to send reinforcements. Some time later, officers Sh., D.B. and M. arrived at the applicant’s apartment. S. told them to take the applicant to the police station for having insulted the policemen on duty. 12. According to the applicant, and as also noted in the statement of her neighbours given during the subsequent investigation, thereafter the policemen forced the door to the room of the applicant’s son open, entered the room and some time later led him outside of the apartment and put him in a car. 13. According to S., he offered to let the applicant put her winter clothes on, but the applicant refused. Sh. and M. then took the applicant by the hands, led her out of the apartment and put her in the car. The applicant resisted their efforts. 14. The applicant submitted that while she had been in the apartment, one of the policemen had knocked her to the floor, had grabbed her by the wrists and had dragged her out of the apartment. He had dragged her down two staircases of the building and out to the car. She denied having been given the chance to put her winter clothes on. 15. According to the applicant, it had been minus 10o C outside. The applicant’s son had been put in the same car. The police brought them to the District Department of the Interior’s premises and locked them in cells for administrative detainees. 16. Some time later the applicant’s husband brought her warm clothes. A record made after the incident concerning the administrative offence of minor affray under Article 158 of the RSFSR Administrative Offences Code states that the applicant “used abusive language in public”. The record describes the applicant’s identity and time of the incident, but does not mention whether any decision was taken in connection with her alleged misconduct, whether the applicant was taken into custody and whether or when she was released. The applicant confirmed having seen a copy of the record in the police station. 17. The Government were unable to provide the Court with the materials pertaining to the applicant’s administrative case, explaining that they were destroyed following the expiry of the time-limit for storage of such documents in February 2003, April 2005 and April 2007. They did not submit any specific information as to the existence of a record of the applicant’s detention. 18. According to the applicant, she had spent approximately twenty hours in a cell for administrative detainees in the District Department of the Interior’s premises. She was not given any food, was not provided with medical assistance and did not have the opportunity to sleep, as there was neither a bed nor bedding. Given that she had suffered an injury to her tail bone, the only position that she had been able to cope with was staying upright all the time. It is not clear whether any records of the applicant’s detention were made. 19. The Government submitted that there had been no standard rules concerning the conditions for such detention, that the applicant’s cell had been equipped with a wooden bench, that the applicant had not complained about the state of her health and that the authorities had not impeded third parties, such as a relative, from bringing their own food to feed the applicant. 20. The applicant was released on 9 December 2001 at around 1 p.m., without having been brought before a judge or otherwise interrogated. On the same date, the applicant was examined by a doctor who recorded a bruise on the applicant’s tail bone. The doctor stated specifically that the bruise had been formed as a result of an impact occurring no less than once by a blunt object in a mechanical way, similar to a blow, and that it “could have been inflicted during a fall onto a flat surface or [by] continuous dragging along the floor or down a staircase”. 21. The administrative proceedings against the applicant and her son concerning the charge of minor affray were later discontinued or abandoned. 22. The Government did not dispute the timing of the applicant’s detention and release. 23. On 12 December 2001 the applicant asked a prosecutor to initiate criminal proceedings against police officers S., K. and the policeman who had dragged her from the apartment to the car. In her application, she referred specifically to the policemen’s unlawful entry to the apartment and the applicant’s family’s accommodation, to being beaten and to her subsequent unlawful arrest and detention. The letter described in detail the conditions of her detention. On 28 January 2002 Ts., an assistant prosecutor at the St Petersburg Central District Prosecutor’s Office, refused to institute criminal proceedings. The applicant did not provide the Court with a copy of the decision. 24. On 8 February 2002 M., a supervising prosecutor at the St Petersburg Prosecutor’s Office, instituted criminal proceedings against S. on the basis of the applicant’s complaint of S.’s unlawful actions. She argued that: “... [the decision of 28 January 2002] had been unlawful and had to be quashed insofar as it had concerned the actions of the police officers. Thus, [the relevant legislation] indeed empowers the policemen to enter without hindrance the residential premises of private citizens. However, this power is provided only in case the [policemen are pursuing] the persons suspected of criminal activity. In the case at hand, [the applicant’s son] was not a suspect within the meaning of [the domestic law on criminal procedure], the criminal case against him was instituted only later, which policemen K. and S. certainly knew. In addition, in breach of the mentioned legal norm obliging the police to inform about all such cases the relevant prosecutor within 24 hours, this has not been done. The unlawful actions of the policemen [in question] mostly provoked the subsequent actions of [the applicant], which was unjustifiably viewed by the policemen as a minor affray. [The applicant’s] intent in the present situation was directed at the protection of her son, and not the breach of public order. As was earlier noted in [previous decision of the prosecutor’s office], the [applicant’s] actions did not qualify as [an offence of insulting a public officer] ... because the relevant actions did not have a lawful character ...” The prosecutor considered that the applicant had been taken to the police station and had been detained there unlawfully. The prosecutor decided to institute criminal proceedings but for some reason failed explicitly to quash the decision of 28 January 2002. 25. On 14 March 2002 an expert examination of the applicant’s medical condition was conducted. The expert noted that the applicant had a bruise on her tail bone which could have occurred, among other reasons, as a result of her being dragged down the staircase on 8 December 2001. 26. Investigator Ch. of the St Petersburg Central District Prosecutor’s Office, in charge of the criminal case against S., collected the following evidence. He questioned S., who stated that during the incident in the applicant’s apartment she had verbally insulted and pushed him several times and that he had had to call for reinforcements and take the applicant to the police station. S. had not known about the applicant’s disability at the time of the incident. 27. The investigator also questioned K., who stated that he had been in charge of investigating Bo. having been beaten up by the applicant’s son. On 8 December 2001, having learned that the applicant’s son was at home, he had gone with officer S. to invite him to attend a police interview. They had met the applicant in the apartment and she had started to verbally insult them and push S. out of the apartment. The applicant’s neighbours had witnessed the incident. Then K. had left the building and had seen the reinforcing officers arriving. Sh. and M. had gone upstairs and had soon come back, leading the applicant by the hands to the car. 28. Sh. told the investigator that on 8 December 2001 he had arrived at the applicant’s apartment. He had seen the applicant swearing and pushing S. Then S. had given the order to take the applicant to the station. He and another policeman had taken her by the hands and had led her out of the apartment to the car. The applicant had resisted. 29. The investigator questioned the applicant’s neighbours Bo. and S., who stated that they had seen her insulting and trying to hit officer S. They stated that the two policemen had then taken the applicant to the car, despite her resistance. The neighbours also gave evidence to the effect that the police officers had forced open the door to the applicant’s son’s room and had entered it despite the applicant’s objections. 30. L., a passer-by, stated to the investigator that she had seen two policemen leading a woman from an apartment block to a car. The woman had been resisting and screaming. She had then been “carefully put into the car”. 31. The applicant told the investigator that in the apartment a police officer had hit her so hard that she had fallen to the floor. He had then taken her by the wrist and had dragged her along the floor out of the apartment. She had walked by herself from the entrance of the apartment block to the car. 32. In the light of the above evidence, the investigator concluded that S., by ordering the applicant’s transfer to the police station, had acted lawfully. Accordingly, on 8 June 2002 he took a decision to discontinue the criminal proceedings against S. 33. On 1 July 2002 deputy prosecutor B. S. of the St Petersburg Central District Prosecutor’s Office quashed the decision of 8 June 2002 and ordered additional investigation of the applicant’s complaint concerning alleged unlawful actions by S. 34. On 21 October 2002 an investigator at the St Petersburg Central District Prosecutor’s Office discontinued the criminal proceedings against S. He argued that S. had acted lawfully and had not abused his authority. The investigator also found that the applicant had insulted S. and had punched him several times in the chest, and therefore that she was liable to prosecution for having committed violent actions towards an officer on duty. He separated the case relating to the applicant’s actions in respect of the officer into a different set of criminal proceedings. On 28 April 2003 the criminal proceedings against the applicant in this respect were discontinued for the lack of evidence of a crime. 35. On 17 February 2003 deputy prosecutor B.S. of the St Petersburg Prosecutor’s Office quashed the decision of 21 October 2002 and ordered additional investigation into the applicant’s complaints. 36. On 3 April 2003 investigator A. Sh. of the St Petersburg Central District Prosecutor’s Office discontinued the criminal proceedings. The investigator stated that the applicant’s bruise had occurred as a result of her active resistance to the lawful actions of policemen. On the way to the car, the applicant had tried to hold on to a door frame, the rails of the staircase and a metal fence on the street, and had bent her feet so that the policemen had had to carry her. The investigator argued that taking the applicant to the police station had been justified by the need to hold her responsible for her breach of public order. The investigator concluded that there was no evidence that S. had abused his powers. The investigator also stated that the police had made a record of the applicant’s administrative offence and that they had arrested the applicant in order to bring her before a judge who was competent to decide on her guilt as regards the administrative offence in accordance with applicable law. 37. On 30 December 2003 deputy prosecutor Zh. of the St Petersburg Prosecutor’s Office quashed the decision of 3 April 2003 and ordered additional investigation by another prosecutor’s office. The prosecutor noted that it had not been possible to establish with certainty the circumstances of the incident between the applicant and the police officers due to inconsistencies in the witnesses’ statements. In the decision, the prosecutor referred to the record of the applicant’s administrative and police detention but noted discrepancies as regards the beginning of the applicant’s detention and also stated that the time of the applicant’s release was not recorded at all. He considered that it was necessary to carry out a comprehensive medical expert examination of the applicant and noted the inadequacy of the investigation conducted so far. 38. On 18 February 2004 an investigator from the St Petersburg Admiralteyskiy District Prosecutor’s Office discontinued the criminal proceedings against S. He noted that the decision of 8 February 2002 had not quashed the decision of 28 January 2002 and that the original decision was still in force. Thus, the institution of criminal proceedings at a time when there was a valid decision to discontinue them was unlawful. The investigator noted in his decision that, in entering the apartment against the will of its owner and ordering the policemen to take the applicant to the police station, S. had acted unlawfully. He also noted that officer Sh. had led the applicant out of the apartment. According to the investigator, the applicant had been detained at the police station on the basis of reports by a number of policemen, namely B., Sh. and M. 39. On 31 March 2004 deputy prosecutor A. Zh. of the St Petersburg Prosecutor’s Office quashed the decision of 18 February 2004 due to the inadequacy of the investigation and ordered additional investigation. 40. On 31 May 2004 investigator Zh. of the St Petersburg Admiralteyskiy District Prosecutor’s Office discontinued the criminal proceedings against S. The investigator stated that it had not been possible to establish with certainty the circumstances of the incident between the applicant and police officers due to inconsistencies in the witnesses’ statements. He argued that S. had unlawfully entered the apartment against the applicant’s will and had given an illegal order to take her to the police station. The investigator also added that S. had violated the applicant’s rights, as he had not checked whether her detention at the police station for more than three hours was lawful. The investigator further argued that the institution of criminal proceedings at a time when the decision of 28 January 2002 to discontinue them was still in force was unlawful and all evidence collected in the course of the newly opened investigation was inadmissible. The applicant’s son challenged the decision in court on the applicant’s behalf. 41. On 17 February 2005 the Smolninskiy District Court in St Petersburg examined the applicant’s complaint against the investigator’s decision of 31 May 2004 and rejected it. The court upheld the investigator’s conclusion that the institution of criminal proceedings at a time when the decision of 28 January 2002 to discontinue them was still in force was unlawful and all evidence gathered in the course of the newly opened proceedings was inadmissible. The applicant appealed. On 7 April 2005 the St Petersburg City Court rejected the applicant’s appeal. 42. On 2 June 2004 deputy prosecutor A. Zh. of the St Petersburg Prosecutor’s Office quashed the decision of 8 February 2002 to institute criminal proceedings. On 2 June 2004 the deputy prosecutor quashed the decision of 28 January 2002 to discontinue the criminal proceedings and ordered additional investigation. 43. On 11 June 2004 deputy prosecutor K. of the St Petersburg Central District Prosecutor’s Office discontinued the criminal proceedings against S. The deputy prosecutor noted that police officers Sh. and M. had taken the applicant by the hands and had led her out of the apartment. He concluded that the police officers had acted lawfully during the incident, which had been provoked by the applicant and her son. The deputy prosecutor also mentioned the fact that no records of the time of the applicant’s release had been made at the police station and added that the materials of inquiry concerning the administrative proceedings against the applicant and her son, namely the records of administrative offences, had been destroyed. In taking the decision, the prosecutor did not mention any specific piece of evidence, either new or old. The applicant’s son challenged this decision in court on her behalf. 44. On 1 November 2004 the Smolninskiy District Court in St Petersburg rejected the complaint against the decision of 11 June 2004. The court noted that: “... the statements of all persons questioned in connection with the case have been analysed, the events have been described in the decision [of 11 June 2004] in chronological order and do not contradict the evidence contained in the materials of inquiry ... submitted to the court. The statements of policemen Sh., B., K. and S. that they did not commit any illegal actions towards Dmitriyeva and that the conflict was provoked by [the applicant], who had refused to follow the lawful orders of the policemen, are also confirmed by the statements of witness L. ...” The applicant appealed against the judgment. 45. On 27 January 2005 the St Petersburg City Court rejected the applicant’s appeal. 46. Section 11(18) of the Police Act 1991 gives the police the right to enter premises when pursuing a person suspected of having committed a crime or when the police have sufficient information to believe that a crime has been or is being committed on the premises or that an accident has happened there and also for the purposes of ensuring the safety of citizens and of the public in cases of natural disasters, catastrophes, accidents, epidemics, epizootics and public disorders. The police have to notify a prosecutor of all cases of entry into the homes of persons against their will within twenty-four hours. 47. Article 158 of the RSFSR Administrative Offences Code 1984, as in force at the relevant time, punished minor affray, namely the use of abusive language in public places, harassment of citizens and other similar actions disturbing the public order and peace. Article 238 of the Code provided that an accused person could be brought to a police station for the purpose of making a record of an administrative offence if it had not been possible to make it on the spot. Article 240 required that administrative detention be recorded. According to Article 242, a person who committed an administrative offence could be detained for no more than three hours. However, individuals who committed minor affray could be detained until the examination of the case by a court or by the head of a law-enforcement body. 48. The relevant extract from the 2nd General Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) (CPT/Inf (92) 3) reads as follows: “42. Custody by the police is in principle of relatively short duration ... However, certain elementary material requirements should be met. All police cells should be of a reasonable size for the number of persons they are used to accommodate, and have adequate lighting (i.e. sufficient to read by, sleeping periods excluded) and ventilation; preferably, cells should enjoy natural light. Further, cells should be equipped with a means of rest (e.g. a fixed chair or bench), and persons obliged to stay overnight in custody should be provided with a clean mattress and blankets. Persons in custody should be allowed to comply with the needs of nature when necessary in clean and decent conditions, and be offered adequate washing facilities. They should be given food at appropriate times, including at least one full meal (i.e. something more substantial than a sandwich) every day. 43. The issue of what is a reasonable size for a police cell (or any other type of detainee/prisoner accommodation) is a difficult question. Many factors have to be taken into account when making such an assessment. However, CPT delegations felt the need for a rough guideline in this area. The following criterion (seen as a desirable level rather than a minimum standard) is currently being used when assessing police cells intended for single occupancy for stays in excess of a few hours: in the order of 7 square metres, 2 metres or more between walls, 2.5 metres between floor and ceiling.” The CPT reiterated the above conclusions in its 12th General Report (CPT/Inf (2002) 15, § 47). 49. The part of the Report to the Russian Government on the visit to the Russian Federation carried out by the CPT from 2 to 17 December 2001 (CPT/Inf (2003) 30) reads, in so far as it concerns conditions of detention in administrative-detention cells located within police stations, as follows: “25. Similar to the situation observed during previous visits, none of the district commands (RUVD) and local divisions of Internal Affairs visited were equipped with facilities suitable for overnight stays; despite that, the delegation found evidence that persons were occasionally held overnight at such establishments... The cells seen by the delegation were totally unacceptable for extended periods of custody: dark, poorly ventilated, dirty and usually devoid of any equipment except a bench. Persons held overnight were not provided with mattresses or blankets. Further, there was no provision for supplying detainees with food and drinking water, and access to a toilet was problematic. The CPT reiterates the recommendation made in its report on the 1999 visit (cf. paragraph 27 of document CPT (2000) 7) that material conditions in, and the use of, cells for administrative detention at district commands and local divisions of Internal Affairs be brought into conformity with Ministry of Internal Affairs Order 170/1993 on the general conditions and regulations of detention in administrative detention cells. Cells which do not correspond to the requirements of that Order should be withdrawn from service. Further, the Committee reiterates the recommendation made in previous visit reports that administrative detention cells not be used for accommodating detainees for longer than 3 hours.”