CASE OF LOLAYEV v. RUSSIA
Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (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)
Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
5. The applicant was born in 1978 and lives in Vladikavkaz. 6. The applicant was a police officer at the Office of the Interior of the Iristonskiy District of Vladikavkaz (“the police station”) until 2005. 7. Between 25 and 27 February 2008 a submachine gun disappeared from the police station. The police officers noticed it was missing on 27 February 2008. 8. According to the applicant, on 28 February 2008, in the evening, police officers delivered him to the police station. There they handcuffed him to a chair and ill-treated him overnight, beating him on the back and head and pressing bare electric wires against his ears to make him confess to the theft of the sub-machine gun. He was released from the police station before noon on 29 February 2008. 9. On 3 March 2008 the applicant underwent a medical forensic examination. Forensic report no. 521 attested that he had concussion, abrasions on his head which could have been inflicted by hard blunt objects, areas of pigmentation on his earlobes resulting from healing abrasions which could have been inflicted as a result of the application of low-frequency electrical current, and areas of pigmentation on his lower arms which could have been caused by hard blunt objects, possibly handcuffs. The report stated that the aforementioned injuries could have been inflicted within the period, and in the circumstances, described by the applicant. 10. On 3 March 2008 the applicant complained about the events of 2829 February 2008 to the prosecutor’s office of the Republic of North Ossetia-Alania. The latter referred his complaints to the prosecutor’s office of the Pravoberezhniy District of Vladikavkaz and to the prosecutor’s office of the Iristonskiy District of Vladikavkaz for inquiry, in letters of 6 and 12 March 2008 respectively. The latter prosecutor’s office further transmitted the applicant’s complaint to the Vladikavkaz Investigation Department on 18 March 2008. 11. On 4 April 2008 the Vladikavkaz Investigation Department refused to institute criminal proceedings in connection with the applicant’s allegations. The decision stated that according to the applicant, at 9.15 p.m. on 28 February 2008 he received a phone call from a former colleague at the police station, Ms P., who told him that another former colleague from the same police station, Officer K., had some problems. Ms P. asked the applicant to call Officer K. The applicant called Officer K. The latter said that he had problems and asked the applicant to join him in Officer K.’s car, parked outside the applicant’s house, to go to South Ossetia. Officer K. also asked the applicant to take his passport with him. The applicant went outside and joined Officer K. and another man in camouflage uniform in a silver grey Niva-Chevrolet car. The applicant sat in the back seat and they drove off. As they were driving, Officer K. told the applicant that when he started his duty shift he had signed an entry in the register confirming that he had been issued with a sub-machine gun, but this had not actually been the case, as the gun had not been found. Officer K. asked the applicant to go with him to South Ossetia until everything had “cleared up”. Then Officer K. and the other man began contending that it was the applicant who had taken the sub-machine gun, because on the day the sub-machine gun had gone missing he had been at the police station; this was recorded on CCTV. The applicant protested against these allegations, and the man in the camouflage uniform started beating him, while Officer K. pretended to try to separate them. Then they drove to the town centre, stopped at the police station, and the man in the camouflage uniform left. Soon Officer G., the deputy head of criminal investigations and the applicant’s former colleague, came out of the police station. The applicant expressed indignation about the police officers’ allegations and assault. Officer G. replied that he did not suspect the applicant, but asked him to help them if he could. The applicant said that he could not help them. Then Officer G. left and Officer S. came out of the police station and told the applicant that Mr A.L., the applicant’s cousin, would soon arrive. Mr A.L. arrived shortly afterwards, accompanied by officers of the police special unit (SOBR) and asked the applicant to help Officer K. because he was a close friend. The applicant responded that there were no grounds to suspect him and that he did not wish to continue this conversation. Officer S. then said that they had a video recording, and the applicant asked to see it. They went together to the office of the head of criminal investigations on the second floor of the police station, where Officer Z. showed the applicant a recording of him entering and leaving the police station. The applicant explained that during his entire visit to the police station he had been accompanied by police officers. After they left that office Officer S., Mr A.L., and another man, X., whom the applicant did not know, took him to Officer S.’s office, where Mr A.L. again urged him to confess to stealing the sub-machine gun. Then they took him to a different office, where Officers K., D., Kas. and X. handcuffed him to a chair, taped his mouth, put wires against his ears and passed electric current through them. The applicant fell off the chair several times but they put him back and sent the current through the wires to his ears again. He managed to get rid of the tape and spit out the blood that had collected in his mouth. Officer K. started yelling at him, saying that he would receive no pity as the “minister” had personally ordered that he should be “locked up”. The applicant then realised that he would not be able to endure the torture and offered to confess in writing that he had thrown the sub-machine gun into the river. However, they were unhappy with this suggestion. Then they took him to Officer K.’s office, where he and Officers D. and X. remained until 11 or 11.30 a.m. on 29 February 2008, when they let him go. 12. The decision further quoted forensic report no. 521 (see paragraph 9 above) and statements by police officers. In particular, Officer Kas. stated that he knew the applicant, as he had worked at the police station until 2005. On 27 February 2008 they had realised that a sub-machine gun was missing. Officer M. had seen it last when he was on duty; he was subsequently dismissed from the police for its loss. When they tried to establish what had happened, they watched the CCTV records since 25 February 2008, this being the likely date of the sub-machine gun’s disappearance. The recording showed the applicant entering the police station; in the film of him leaving he seemed to be holding an unidentified object under his jacket. As the applicant often visited the police station and went into its offices, including the office from which the sub-machine gun might have gone missing, it was decided to invite the applicant, show the recording to him, and ask him to return the weapon. Officer K., a relative of the applicant, was instructed to invite him. On the date in question Officer Kas. saw Officer K. and the applicant in the police station. The applicant did not have any visible injuries, seemed to be in a good mood and asked him how he was doing. An hour later he saw the applicant leaving the police station. Neither he nor any other police officers applied physical force to the applicant. However, Officer Kas. still suspected the applicant of stealing the sub-machine gun and believed that his allegations were an attempt to undermine any possible prosecution for the theft of the weapon. Officer Kas. believed that the applicant had caused the injuries stated in forensic report no. 521 himself, in order to corroborate his submissions. 13. Officer K. stated that he was a distant relative of the applicant. He then corroborated Officer Kas.’s statement concerning the loss of the sub-machine gun, and added that with the help of Ms P. he had contacted the applicant and arranged a meeting with him near his home. Officer K. went there by car alone and, when the applicant joined him, explained the situation to him and asked him to return the sub-machine gun, as otherwise Officer K. and his colleagues would have a lot of problems. The applicant denied being involved in the theft of the weapon, and agreed to go to the police station. On arrival they met Officer G., who also suggested that the applicant return the sub-machine gun. The applicant reiterated that he had nothing to do with its loss. Then Officer K. took him to the office of the head of criminal investigations and left him there with Officer Z. In an hour or an hour and a half he saw the applicant leaving the police station; he was sitting on a bench nearby with Officer Kas. He had not seen the applicant since. From Officer Z. he knew that the latter had shown the applicant the video recording and had asked him to return the sub-machine gun, but nobody had used physical force against him. Officer K. had no idea how the applicant had sustained the injuries or why he had accused the police officers of causing them; he maintained that those allegations were false. 14. Officer S. corroborated Officers Kas.’s and K.’s statements concerning the loss of the sub-machine gun, and added that on the day in question he had seen the applicant and Officer K. on the second floor of the police station. He had asked the applicant to return the sub-machine gun, explaining that otherwise the police officers would be in serious trouble. However, the applicant denied being involved in its disappearance. Then Officer S. left and went to the first floor. He did not know where the applicant had gone afterwards but he saw no injuries on him. Officer S. did not know how the applicant had sustained the injuries described in forensic report no. 521, as no one in the police station had either ill-treated or insulted him. Officer S. believed that the applicant’s allegations were intended to discredit his former colleagues. 15. Officer D. corroborated the statements of Officers Kas., K. and S. concerning the disappearance of the sub-machine gun, and added that on the date in question, when he left the police station on finishing work and was walking towards his car parked nearby, he had seen Officer K. and the applicant entering the police station. He had not spoken to the applicant and had only seen him from a distance. Officer D. had then gone home. He did not know how the applicant could have sustained the injuries stated in forensic report no. 521, as neither Officer D. nor other police officers had ill-treated him. 16. Officer G. corroborated the statements of Officers Kas., K., S. and D. concerning the disappearance of the sub-machine gun, and added that on the day in question, when he left the police station, he had seen the applicant and Officer K. nearby. They were talking peaceably and he did not see any injuries on the applicant’s head or body. Officer G. approached them and told the applicant that there were grounds to believe that he had stolen the sub-machine gun and that he must return it. The applicant responded that he had nothing to do with its disappearance. The applicant did not make any complaints concerning the police officers. Officer G. had not seen the applicant since, and believed that his allegations were an attempt to avoid prosecution for the theft of the weapon. 17. The decision concluded that, as a result of the inquiry conducted, the applicant’s allegations were not corroborated, and it was doubtful whether he had received the injuries described in forensic report no. 521 in the circumstances described by him. Accordingly, the actions of the police officers disclosed no evidence of a criminal offence. 18. A copy of the decision was sent to the applicant on the same date. 19. On 5 June 2008, following a complaint lodged by the applicant, a senior investigator of the Vladikavkaz Investigation Department set aside the decision of 4 April 2008 as premature, because a number of investigative steps had not been taken. In particular, the investigators were instructed to question the applicant and the police officers who had been on duty on the relevant date, to inspect, in the presence of the applicant, the office where he had allegedly been ill-treated, and to take other investigative measures if they appeared necessary. 20. A copy of the decision was sent to the applicant on the same date. 21. On 15 June 2008 the Vladikavkaz Investigation Department again refused to institute criminal proceedings in connection with the applicant’s allegations. The decision reproduced verbatim the decision of 4 April 2008, with the addition of one paragraph. The paragraph concerned the questioning of Officer M., who had served at the police station since 2005. He submitted that he knew the applicant and that the latter frequently came to the police station to see his former colleagues. However, because of the time which had elapsed since then he could not remember whether he had seen the applicant at the end of February 2008, and had no information about whether the applicant had been forcibly held at the police station between 28 and 29 February 2008. 22. On 16 June 2008 a copy of the decision was sent to the applicant, who complained about the decision to the Office of the Prosecutor General. That complaint was subsequently forwarded to the Prosecutor’s Office of the Iristonskiy District of Vladikavkaz. 23. On 6 August 2008 the Iristonskiy District Prosecutor’s Office allowed the applicant’s complaint, found the decision of 15 June 2008 ungrounded, and forwarded the materials concerning the complaint to the Vladikavkaz Investigation Department for it to set aside that decision. 24. On 9 October 2008 a senior investigator of the Vladikavkaz Investigation Department set aside the decision of 15 June 2008 as premature and superficial as, in particular, the circumstances in which the applicant had sustained the injuries had not been established. The investigators were instructed to (i) establish the circumstances in which the injuries had been caused; (ii) inspect in the presence of the applicant the office where he had allegedly been ill-treated; (iii) question Officer Mir.; (iv) question Officer Z.; (v) question Mr A.L.; (vi) add to the case file materials relating to criminal proceedings instituted in connection with the disappearance of the weapon from the police station; and (vii) take other investigative measures if they appeared necessary. 25. On 20 October 2008 the Vladikavkaz Investigation Department again refused to institute criminal proceedings in connection with the applicant’s allegations. The decision reproduced verbatim the decision of 15 June 2008, with the addition of two paragraphs setting out the submissions of Officers Mir. and Z. Officer Mir. stated, in particular, that at 8.30 a.m. on 28 February 2008 he had started his 24-hour duty shift at the police station. Because of the time that had passed since then, he could not remember whether the applicant had been delivered to the station during his duty hours, but he was positive that nobody had used physical force on him. Officer Z. stated that after the official weapon had gone missing from the police station it had appeared possible that the applicant had been involved in its theft, as he had been recorded leaving the police station with his arm pressed against his body. When the applicant was asked why he had held his arm in such a way he responded that that was how he walked. However, it was clear to Officer Z. that he was lying. He was then asked to tell everything he knew about the weapon’s disappearance, but he said he knew nothing and left the office. No one either threatened the applicant or applied physical force to him. 26. The applicant was informed of the decision by a letter sent on the same date. 27. On 19 March 2009, following a complaint lodged by the applicant, a senior investigator of the Vladikavkaz Investigation Department set aside the decision of 20 October 2008 as superficial since (i) the circumstances in which the applicant had sustained the injuries had not been established; (ii) neither the applicant nor Mr A.L. had been questioned; and (iii) materials concerning criminal proceedings instituted in connection with the disappearance of the weapon from the police station had not been added to the case file. The investigators were instructed to rectify the above shortcomings. 28. The applicant was informed of the decision by a letter sent on the same date. 29. On 30 March 2009 the Vladikavkaz Investigation Department again refused to institute criminal proceedings in connection with the applicant’s allegations. A copy of that decision has not been provided to the Court. 30. The applicant was informed of this decision by a letter sent on the same date. 31. On 31 May 2010, following a complaint lodged by the applicant, a senior investigator of the Vladikavkaz Investigation Department set aside the decision of 30 March 2009, on the ground that the investigators had failed to rectify the shortcomings indicated in the decision of 19 March 2009. They were instructed to (i) enclose in the case file materials concerning criminal proceedings instituted in connection with the disappearance of the weapon from the police station; (ii) establish the applicant’s whereabouts and question him in relation to the injuries sustained; (iii) establish the whereabouts of Mr A.L. and question him with respect to his meeting with the applicant at the police station; (iv) carry out a forensic medical examination of the applicant with a view to establishing how the injuries had been caused; and (v) take other investigative measures if they appeared necessary. 32. The applicant was informed of the decision by a letter sent on the same date. 33. On 25 June 2010 another forensic examination was conducted, apparently on the basis of the materials in the case file. Forensic report no. 98 stated that the applicant had concussion and abrasions on his head which could have been inflicted by hard blunt objects, possibly on 29 February 2008. He also had a scar on his tongue formed as a result of a healed wound, and pink pigmentation of skin on his earlobes and on his right lower arm. On the basis of the materials available it was not possible to determine either when and how those injuries had been caused, or their gravity. 34. On 30 June 2010 the Vladikavkaz Investigation Department once again refused to institute criminal proceedings in respect of the applicant’s allegations. The decision reproduced verbatim the decision of 20 October 2008, with an additional paragraph describing forensic report no. 98 of 25 June 2010. 35. A copy of the decision was sent to the applicant on the same date. 36. It appears that the decision of 30 June 2010 was again set aside by a senior investigator of the Vladikavkaz Investigation Department. 37. On 16 May 2011, after the Court had communicated the application to the respondent Government, the Iristonskiy Inter-District Investigation Department of Vladikavkaz instituted criminal proceedings against Officers K., Kas. and D. on account of the applicant’s ill-treatment. 38. On 7 June 2011 the applicant was granted victim status in the proceedings. 39. In a letter of 3 October 2011 the Prosecutor’s Office of the Republic of North Ossetia-Alania informed the applicant that a number of investigative steps had been taken in his case. They included confrontations between the applicant and Officers K., Kas. and D.; identification of the fourth suspect on the basis of photographs; and inspection of the crime scene in the presence of the applicant. 40. On 31 October 2011 the applicant lodged a complaint under Article 125 of the Code of Criminal Procedure with the Leninskiy District Court of Vladikavkaz. He alleged, in particular, that, whereas he had indeed taken part in the confrontations with Officers Kas., D. and K. in September 2011, he had not taken part in the inspection of the crime scene, which had apparently been conducted later, or in the identification of the fourth suspect on the basis of photographs; and that his signature on the records of these investigative actions had been forged. The applicant made a number of other complaints concerning the progress of the investigation. 41. On 2 November 2011 the Leninskiy District Court returned the complaint unexamined, on the ground that the applicant had failed to specify the actions or omissions of the investigators that he was seeking to have declared unlawful. The applicant was advised that he could resubmit his complaint after it had been rectified. 42. Between 10 and 11.35 a.m. on 13 November 2011 the investigating authorities conducted a confrontation between the applicant and Mr E.L., a relative of both the applicant and Officer K. They were questioned about the events of 28-29 February 2008. The applicant reiterated his account of the events. Mr E.L. stated that during the evening of 28 February 2008 Officer K. had called him and asked to meet him. They met at a supermarket, where Officer K. told him that the applicant was suspected of stealing a submachine gun from the police station, and asked him to talk to the applicant. Mr E.L. agreed. On the same date he arrived at the police station and entered an office: he could not remember exactly which one because of the time that had passed since the events. In the office he was left alone with the applicant. When Mr E.L. asked the applicant about the sub-machine gun, the latter replied in a rude manner. Mr E.L. then pushed him and said that that was no way to talk to a relative. The applicant hit Mr E.L. back and this started a fight. Then Officers K. and Dz. appeared and separated them. The applicant said that he would complain about what had happened, and Mr E.L. left. He had not spoken to the applicant since. On 12 October 2011 he met Officer K., who reminded him of those events and said that criminal proceedings had been instituted against him and other police officers in this respect. As Mr E.L. thus became aware that police officers “were suffering” because of injuries he had caused the applicant, he decided to go to the police station and confess. Mr E.L. added that he had not told his relatives about the events of 28 February 2008, so as not to upset them. The applicant contested Mr E.L.’s submissions and insisted on his account of the events. He said that he had no idea why Mr E.L. had contended that he had caused him injuries. 43. The investigator noted that, apart from the concussion and abrasions on the head, according to forensic report no. 98 of 25 June 2010 the applicant also had a scar on his tongue and pink pigmentation of skin on his earlobes and on the right lower arm, and asked Mr E.L. for clarification in this respect. Mr E.L. replied that in the course of the fight he had hit the applicant on the head and face and other places, and that therefore the concussion and the abrasions on the head had most likely been caused by his blows. However, Mr E.L. could provide no information with respect to the scar on the applicant’s tongue and the pigmentation of his skin. 44. Between 1 p.m. and 2.45 p.m. on 13 November 2011 the investigating authorities conducted a confrontation between the applicant and Officer Dz. who served at the police station. They were also questioned about the events of 28-29 February 2008. The applicant reiterated his account of the events. Officer Dz. submitted that on 27 February 2008, after it had been established that a sub-machine gun had gone missing and the recording of the applicant leaving the police station had been found on the CCTV, Officer K. was instructed to invite the applicant to the police station and to ask him to return the weapon. On the date in question Officer Dz. saw Officer K. and the applicant at the police station. The applicant seemed to be in a good mood and did not have any injuries. Officer Dz. was aware that Officer K. had also told Mr E.L., the applicant’s relative, that the applicant was suspected of stealing the sub-machine gun, and asked him to come to the police station to talk to the applicant. Mr E.L. arrived at the police station on the same date, and was alone with the applicant in an office for some time, while Officers Dz. and K. stood outside in the corridor. Officer Dz. could not remember exactly which office that was. When they heard noise and the sound of a quarrel in the office, they entered it and saw the applicant and Mr E.L. fighting. When Officers Dz. and K. separated them, the applicant said that he would complain about this. Officer Dz. then left and had not seen the applicant since. In his view, the applicant alleged that he had been beaten by the police officers because Mr E.L. was his relative. He contended that the police officers had not caused any injuries to the applicant. The applicant contested Officer Dz.’s submissions and insisted on his own account of the events. He emphasised that Mr E.L. had not caused the injuries. 45. On 19 February 2012 the criminal proceedings were discontinued on the ground that the actions of Officers K., Kas. and D. disclosed no evidence of a criminal offence. 46. The applicant complained to the Investigating Committee of the Republic of North Ossetia-Alania of a number of breaches in the conduct of the investigation. 47. On 6 April 2012 the Investigating Committee of the Republic of North Ossetia-Alania dismissed his complaint, stating that all the investigative steps had been taken in accordance with the laws on criminal procedure. 48. On an unspecified date after 27 February 2008 a criminal investigation was instituted in connection with the alleged theft of the submachine gun from the police station by an unidentified person. 49. On 24 August 2008 the investigation was suspended on the ground that the person to be charged with the offence could not be identified. 50. According to the applicant, since the events of 28-29 February 2008 the police officers have continued to put pressure on him. In particular, they followed his movements, called him by telephone and tapped his conversations, and visited him at home, interrogating his friends, acquaintances and neighbours about him. Because of this pressure, in September 2010 he had had to close the grocery/delicatessen that he had been running for several years. Furthermore, in the applicant’s submission, he was unable to vote in the election of the Russian President held on 2 March 2008 as a result of that persecution, as he was afraid to leave his home. 51. The applicant submitted a number of complaints to the prosecuting authorities in this respect. They appear to have been dismissed.