CASE OF DMITRACHKOV v. RUSSIA
Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect)
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
5. The applicant was born in 1977 and lives in the town of Buzuluk in the Orenburg Region. 6. Late in the evening of 16 April 2001 the applicant was arrested at his home on suspicion of having committed theft and robbery. He was placed in the isolation wing of the Buzuluk police station. 7. According to the applicant, in response to his requests for legal aid, he was beaten up by police officers Z. and V. They pressurised him to confess to the above-mentioned crimes. The applicant attempted to commit suicide but, as it appears, was promptly provided with medical assistance. It does not appear that this incident had any adverse consequences on his health. 8. Following the arrest the applicant remained in detention. 9. The Government submitted that according to the information provided by the Supreme Court of Russia the applicant's first documented interview took place on 18 April 2001 in the presence of his lawyer, S. 10. The applicant complained about the ill-treatment to the police and to a local prosecutor's office. 11. It appears that the prosecutor's office did not take any steps in connection with the applicant's complaints, other than remitting the case to a police investigator, K., from the same police station. 12. On 19 April 2001 K. ordered the applicant's medical examination. 13. The examination was carried out on the same date. According to the expert's report, the applicant had a bruise of 3.5×5 cm on his back in the right lumbar region and the right temple area was sensitive on palpation. Noting that no harm to the applicant's health could be established, the expert concluded that the bruise could have been inflicted at the time and in the circumstances described by the applicant. 14. By a decision of 3 May 2001 a senior assistant to the Prosecutor of the Buzuluk Prosecutor's Office refused to institute criminal proceedings against police officers Z. and V. for lack of evidence of a crime. 15. The decision referred to the statements of Z. and V., who denied the allegations of ill-treatment. Investigator K. stated that he had ordered a medical examination in response to the applicant's complaint and noted that the applicant had not complained about the alleged ill-treatment to the prosecutor when the latter had authorised his detention on remand. Finally, having regard to the expert's report, the prosecutor concluded that he was unable to establish any ill-treatment on the part of the police officers and noted that the injury sustained by the applicant could have occurred “in other circumstances”. 16. The applicant submitted that he had learned about this decision “much later”. 17. The Government did not make any comments concerning the date of notification of this decision to the applicant. 18. On an unspecified date the applicant's criminal case concerning the charges of theft and robbery was transferred to the Buzuluk Town Court for examination. 19. During the court hearing of his criminal case on 9 July 2001 the applicant repeated his allegations of ill-treatment. The two co-accused in the applicant's case also alleged ill-treatment by the police officers. The prosecutor participating in the examination of the case moved to adjourn the proceedings in order to carry out an inquiry into their submissions. 20. By a decision of the same date the trial court entrusted the Buzuluk Prosecutor with the inquiry and adjourned the proceedings. 21. On 27 July 2001 the Senior Assistant to the Prosecutor of the Buzuluk Prosecutor's Office refused to institute criminal proceedings against the police officers, referring, among other things, to the oral evidence given by police officers V. and Z. and investigator K. as well as to the previous decision of 3 May 2001. 22. The applicant stated that he was not notified about the decision immediately. 23. The Government submitted that the decision had been read aloud during the court hearing of 7 August 2001. 24. The applicant complained about the decisions of the prosecutor's office to the Buzuluk Town Court, alleging that they were unfounded and that several witnesses of the ill-treatment had not been questioned, and requested an additional inquiry. 25. By a judgment of 23 October 2001 the court rejected his complaint. In particular, it stated that: “... The plaintiff's submissions proved unconfirmed during the court hearing. According to the statements of the police officers V. and Z. obtained in course of the prosecutor's inquiry into the alleged ill-treatment, Dmitrachkov [the applicant] was detained on suspicion of robbery and theft, no physical or psychological pressure was exerted on him ... Dmitrachkov failed to complain to the prosecutor who ... authorised his arrest although he had the opportunity ... ... According to the plaintiff, upon his placement in the isolation ward, he was hit with his head against the walls. However, his co-accused Ch. did not confirm this allegation. The expert's opinion of 19 April 2001 revealed an injury, [namely,] a bruise in the left lumbar region. No injuries to the head were established ... which refutes the [plaintiff's] allegations of ill-treatment following his arrest. In these circumstances the court considers that the decisions [...] of [...] 3 May 2001 refusing to institute criminal proceedings against Z. and V. and [...] of 27 July 2002 [...] are lawful and that there are no reasons to quash them.” 26. The applicant appealed. 27. By a decision of 16 April 2002 the Orenburg Regional Court held that the trial court had examined the case under the rules of civil procedure whereas the complaints against the investigative measures ought to have been examined under the provisions of the criminal procedure. It quashed the first-instance judgment and terminated the proceedings without examining the substance of the applicant's complaints. 28. In response to the Court's request for copies of the investigation file in respect of the events of 16 April 2001, the Government submitted that the file had been destroyed due to the expiry of the time-limit for its storage. The Government referred to an Instruction dated 28 December 1998 issued by the Prosecutor General's office. 29. By a judgment of 4 December 2001 the Buzuluk Town Court convicted the applicant of robbery and theft and sentenced him to ten years of imprisonment and confiscation of his property. The applicant submits that he received a copy of the judgment on 27 March 2002. In the judgment, the trial court specifically rejected the applicant's allegations of ill-treatment as unfounded without contesting the existence of his injuries or providing any explanation for their origin. The trial court referred to the decision of 27 July 2001 without questioning the witnesses mentioned in that decision in court. 30. On 21 May 2002 the Orenburg Regional Court upheld the judgment on appeal. 31. Both courts referred to the conclusions of the prosecutor's inquiries into the alleged ill-treatment and rejected the applicant's submissions in this connection. 32. Article 117 § 2 (f) of the Criminal Code of the Russian Federation makes acts of torture punishable by up to seven years' imprisonment. Under Article 286 § 3 (a) and (c) abuse of an official position associated with the use of violence or entailing serious consequences carries a punishment of up to ten years' imprisonment. 33. Before 1 July 2002, criminal proceedings in Russia were governed by the 1960 Code of Criminal Procedure of the RSFSR (“the old CCP”). Under Article 113 of the old CCP, a refusal to open criminal proceedings could be appealed against to a prosecutor or a court. Under Article 220, a refusal by the prosecutor could be appealed against to a higher prosecutor.