CASE OF FARTUSHIN v. RUSSIA
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);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Liberty of person);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
András Sajó;Dmitry Dedov;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
6. The applicant was born in 1985 and lived in Sarov, in the Nizhniy Novgorod region. 7. An all-terrain vehicle and a car were stolen from private garages in Sarov in February and April 2008, respectively. An investigation unit at the Sarov police department (управление внутренних дел г. Саров, “the Sarov UVD”) instituted criminal proceedings into the thefts. The police had information about the applicant’s involvement in the thefts. 8. At about 10.40 a.m. on 5 May 2008, V., an operative agent of the Sarov UVD, contacted the applicant by telephone and requested him to come to office no. 320 at the Sarov police station at 2 p.m. for questioning. At 2 p.m. on the same day the applicant arrived at the police station, as requested. He was accompanied by K., F., Zh. and P., who stayed outside awaiting his return. A police officer on duty registered the applicant’s arrival at the police station at 2 p.m. 9. The applicant provided the following account of events at the police station. In office no. 320 police officer V. and the chief of the criminal investigation unit of the Sarov UVD, B., demanded that he confess to the thefts. Following his refusal, he was taken to a nearby office, shackled and beaten up by B., who kicked and punched him in the head, torso and extremities and jumped on his head, while V. was shouting threats at the applicant. Afterwards the applicant was kept in different offices of the criminal investigation unit. He was given no food or drink. He felt unwell and vomited blood. No medical help was provided to him despite his requests. 10. On 6 May 2008 the applicant’s wife lodged an application with the Sarov town prosecutor and the head of the Sarov town police department, complaining that the applicant was being held at the police station unlawfully, that he had a serious stomach ulcer condition and that a lack of food could cause bleeding. A lawyer appointed by the applicant’s family was unable to locate him at the police station. 11. According to the police records, at midday on 6 May 2008 investigator K. of the Sarov UVD questioned the applicant as a witness in the theft case. 12. According to documents prepared by investigator K. and police officer V., at an unspecified time on the same day the investigator requested that the applicant, who was suspected of having committed the theft, be brought to the police station for investigative measures. Police officer V. reported that he had found the applicant in the street at 8 p.m. and taken him to the police station at 8.15 p.m. on 6 May 2008. 13. At 8.20 p.m. on 6 May 2008 the investigator drew up a record of the applicant’s arrest as a suspect in the criminal proceedings concerning the theft of the all-terrain vehicle. 14. At 8.55 p.m. the applicant was placed in a temporary detention facility at the Sarov UVD (“IVS”). The applicant’s cellmate C. saw injuries on the applicant’s head and learned from him that he had been beaten up by police officers in order to force him to confess to a crime. 15. At 9.15 p.m. an ambulance was called. An ambulance doctor diagnosed the applicant with a stomach ulcer. According to the IVS records, the applicant had abrasions on his arms. 16. On 7 May 2008 the applicant’s lawyer visited the applicant in the IVS and photographed the injuries on his body. According to the applicant, he had bumps and bruises on his head and neck and was unable to hear well, and he also had bruises on his torso and extremities. 17. On 8 May 2008 the applicant was brought before a judge, who ordered that he be remanded in custody. 18. The applicant and a number of other persons were charged with the theft of the allterrain vehicle and the car. 19. On 7 May 2008 the applicant lodged a complaint with the Sarov town prosecutor, alleging that he had been unlawfully deprived of his liberty on 5 and 6 May 2008 and ill-treated in police custody. He claimed that he could identify the police officers responsible for his ill-treatment. Similar complaints were also lodged by the applicant’s mother, his wife and his lawyer. 20. On 8 May 2008 the prosecutor’s office forwarded the complaints to the Sarov Investigation Department of the Investigative Committee at the Nizhniy Novgorod regional prosecutor’s office (the “Sarov Investigative Committee”). On the same day the applicant’s lawyer lodged a similar application with the Sarov Investigative Committee. 21. On 12 May 2008 the applicant was examined by a forensic medical expert. According to the expert’s report (акт судебно-медицинского освидетельствования) no. 572, the applicant had a bruise on his back measuring 3 to 4 cm, an abrasion measuring 4 to 10 cm on his left forearm and an endermic haemorrhage on his chest. The expert concluded that the injuries could have been inflicted by blunt objects on 5-6 May 2008. 22. On 14 May 2008 an investigator of the Sarov Investigative Committee received explanations by the applicant, who maintained his complaints. The applicant stated, in particular, that N.P., who had been held in the same office with his hands shackled, had witnessed the applicant’s illtreatment by police officer B. on 5 May 2008. According to explanations by police officers B. and V., in the course of operative-search activities the police had obtained information about the applicant’s involvement in the theft of the all-terrain vehicle. V. had called the applicant on 5 May 2008 and requested him to come to the police station for questioning by the investigator. They denied the applicant’s allegations about his unlawful detention and ill-treatment, stating that he had been brought to the police station on 6 May 2008 at the investigator’s request (see paragraph 12 above). V. also stated that in the evening of 6 May 2008 N.P., another suspect in the thefts case, had been brought to the police station at the same time as the applicant, and that N.P. and the applicant had been held separately. N.P., whose explanations were also received by the investigator, stated that on the evening of 6 May 2008 he had gone to the police station for questioning and that he had not seen the applicant there. 23. On 22 May 2008 the investigator of the Sarov Investigative Committee ordered that no criminal proceedings be instituted in respect of the applicant’s complaints of unlawful detention and ill-treatment in view of the lack of constituent elements of a crime in the acts of police officers B. and V. and investigator K., pursuant to Article 24 § 1 (2) of the Code of Criminal Procedure (“CCrP”). He stated that there were no reasons to believe that the injuries recorded by the forensic medical expert had been sustained while the applicant had been held at the police station, as this had been denied by the police officers and N.P. 24. On 22 July 2008 that decision was revoked by the Sarov Investigative Committee as the inquiry on which it was based was considered incomplete. The following day, a new decision not to open a criminal case was taken and on 6 August it was revoked for the same reason. Among those whose explanations were received by the investigator in the course of an additional inquiry were K. and F. (see paragraph 8 above). They stated that on 5 May 2008 they had gone to the police station with the applicant, Zh. and P. in the applicant’s car, that they had seen the applicant, who had had no injuries at that time, enter the police station at 2 p.m. and had waited for him outside. At 3 or 4 p.m. on 5 May 2008, while waiting for the applicant, who had still not returned, F. had seen N.P. enter the police station at the request of police officer V. and another person. 25. A new decision not to open a criminal case was taken on 6 October 2008. It was revoked on 20 October 2008 and a similar decision was taken on 6 November 2008. The applicant, whose explanations were again sought by the investigator, stated that his ill-treatment by police officer B. on 5 May 2008 had lasted for about an hour, between 4.30 p.m. and 5.30 p.m. On 25 May 2009 the higher investigative committee at the Nizhniy Novgorod regional prosecutor’s office set aside the decision of 6 November 2008 on the grounds that it was based on an incomplete inquiry. 26. The most recent decision not to open a criminal case on the grounds that the constituent elements of a crime in the acts of police officers B. and V. and investigator K. were missing was taken on 10 June 2009 pursuant to Article 24 § 1 (2) of the CCrP. The same reasoning was given as in the initial decision of 22 May 2008 and in the decisions which had been taken in the meantime. It was mainly based on the denial by the police officers and investigator K. that the applicant had been ill-treated and detained before 8.20 p.m. on 6 May 2008. 27. The applicant appealed against the investigator’s decision of 22 May 2008 to the Sarov Town Court under Article 125 of the CCrP. On 1 August 2008 the Town Court ruled that the application should not be examined, and terminated the proceedings on the grounds that on 22 July 2008 the Sarov Investigative Committee had revoked the investigator’s decision. 28. Court appeals lodged by the applicant against the investigator’s subsequent decisions of 23 July and 6 October 2008 were not examined for the same reason (the Town Court’s decisions of 7 August and 20 October 2008). 29. On 6 March 2009 the Town Court examined the applicant’s complaint seeking to have the failure by the head of the Sarov Investigative Committee to carry out an inquiry into an application lodged by the applicant’s counsel on 22 January 2009 declared unlawful. It was alleged in that application that investigator K., police officer V. and others had forged the documents concerning the time at which the applicant had been taken into custody. The Town Court granted the applicant’s request and declared the inactivity on the part of the head of the Sarov Investigative Committee unlawful. 30. On 3 August 2009 the Sarov Town Court dismissed the applicant’s appeal against the Sarov Investigative Committee’s decision of 10 June 2009 (see paragraph 26 above), holding that the decision was lawful and well-grounded. On 15 September 2009 the Nizhniy Novgorod Regional Court dismissed the applicant’s appeal and fully endorsed the firstinstance court’s decision.