CASE OF TIGRAN AYRAPETYAN v. RUSSIA
Violation of Article 38 - Examination of the case-{general} (Article 38 - Examination of the case);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);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
6. The applicant was born in 1983 and lives in Moscow. 7. On 10 February 2001 at about 11 a.m. the applicant, who at the material time was a student, was arrested in a yard of school no. 970 by police officers while receiving a sum of money from another student. 8. The applicant was suspected of extortion and was taken to Moscow police station no. 184 (“the Otradnoe District Police Station of Moscow”) where he was locked in an office. 9. The applicant submits that one of the police officers who had arrested him periodically entered the office, asked him questions and beat him. 10. The applicant was then taken to another office where two more police officers were present. The officers explained to him that he had the right not to give evidence against himself. 11. According to the applicant, they then started to ask him questions, which he refused to answer. All three officers started to beat him. One of them forced the applicant to stay in a half-squatting position while holding a metallic plate in his hands. The officer warned the applicant that if he failed to maintain the position, he would “get a kick in his chest”. 12. Allegedly, when the applicant dropped the plate, he was kicked in the chest and the beatings resumed. At one point the applicant was kicked in the face. On the verge of losing consciousness, the applicant agreed to “sign all the papers”, after which he was placed in a cell. 13. On the same day at about 10.10 p.m. the applicant was taken by a police officer to the casualty department of polyclinic no. 218 where he was examined by a doctor. The doctor concluded that the applicant's lower jaw was fractured and that he needed an urgent in-patient examination by a surgeon. 14. Following the doctor's examination, the applicant was taken back to the police station where he was once again placed in a cell. About an hour later the applicant was taken to another police station, no. 141, where his fingerprints were taken. 15. On 11 February 2001 at about 2 a.m. the applicant was released. 16. On the day of his release, the applicant was taken to Moscow City Hospital no. 1 (Городская клиническая больница № 1 г. Москвы) for in­patient treatment. The applicant was diagnosed as having a “fracture of the lower jaw in the area of the right condylar process accompanied by a dislocation of the articular head”. The medical report further stated that “the lower jaw was abnormally mobile and the configuration of the face had changed due to a post-traumatic oedema in the right parotid area”. In the course of his treatment the applicant underwent surgery to replant the articular head. 17. The applicant was discharged from hospital on 2 March 2001. 18. On an unspecified date criminal proceedings were instituted against the applicant, who was charged with extortion. 19. On 18 December 2001 the Butyrskiy Inter-Municipal Court of Moscow (Бутырский межмуниципальный суд северо-восточного административного округа г. Москвы) decided, on a request by the applicant, to terminate the criminal proceedings against him on the basis of an Amnesty Act in respect of minors and women passed by the State Duma on 30 November 2001. 20. On an unspecified date the applicant's defence counsel lodged an appeal against the decision of the Inter-Municipal Court claiming that the applicant was not guilty and that he should have been acquitted. The outcome of that appeal is unclear. 21. On 15 February 2001 the applicant lodged a complaint with the Head of the Internal Affairs Department of the Ministry of the Interior (начальник Управления собственной безопасности МВД России) stating that he had been subjected to ill-treatment by police officers. His complaint contained a detailed description of the events and of all three police officers involved. He also stated that one of them had participated in his earlier arrest and that another was called V. 22. It appears that on 19 February 2001 the applicant's mother lodged similar complaints with the Butyrskiy Inter-District Prosecutor's Office of Moscow (Бутырская межрайонная прокуратура г. Москвы) and the Moscow City Prosecutor's Office (прокуратура г. Москвы). The case was assigned to Investigator G. of the Butyrskiy Inter-District Prosecutor's Office of Moscow. 23. On 16 April 2001 the applicant lodged a complaint with the Prosecutor of the Butyrskiy Inter-District Prosecutor's Office of Moscow. In his complaint the applicant submitted that no decision, whether to institute or refuse to institute criminal proceedings, had been taken so far on the basis of his allegations of ill-treatment. He further submitted that pressure had been exerted by the investigators of police station no. 184 on the witnesses in the criminal case against him and that his family had received threatening phone calls because they had complained that the applicant had been ill-treated. 24. On 21 May 2001 the applicant's mother lodged a complaint with the Prosecutor General's Office (Генеральная прокуратура РФ). In her complaint she once again raised the issue of the applicant's ill-treatment by the police officers. She further submitted that since 19 February 2001 no effective investigation had been carried out. The case had been transferred from one investigator to another and no forensic medical examination had yet been ordered. She also alleged that their family had received threatening phone calls. 25. By a letter of 21 May 2001 Investigator G. informed the applicant's mother that: “... on 21 May 2001 criminal proceedings no. 5649 have been instituted under Article 286 § 3 of the Criminal Code [(Уголовный кодекс РФ)] on the basis of your complaint about the physical injuries caused to [the applicant]”. 26. On 29 May 2001 Investigator G. ordered a forensic medical examination to be carried out. The investigator found that: “On 10 February 2001 [the applicant] was arrested on suspicion of having committed an offence by police officers of Otradnoe District Police Station of Moscow [(Отделение внутренних дел района Отрадное г. Москвы)]. On 11 February 2001 [the applicant] was placed in Moscow City Hospital no. 1 as a result of physical injuries which, according to [him], had been inflicted by police officers.” 27. A number of questions were put to the forensic expert. The latter was also provided with the applicant's medical file. 28. On 8 June 2001 the applicant's mother lodged a complaint with Investigator G. In her complaint she submitted that during the medical examination carried out on 6 June 2001 she had discovered that certain vital documents were missing from the applicant's medical file. In particular, she drew attention to the doctor's conclusion, in which, besides the diagnosis and need for urgent hospitalisation, it was also allegedly stated that the applicant had been brought to the casualty department by a police officer. The applicant's mother alleged that this document had been deliberately destroyed in order to substantiate the version of events put forward by the police, according to which the applicant had been released from the police station at 10.10 p.m. on 10 February 2001. 29. On 13 and 14 June 2001 the applicant's mother lodged similar complaints with the prosecutor of the Butyrskiy Inter-District Prosecutor's Office of Moscow and the Moscow City Prosecutor's Office respectively, requesting an inquiry to be carried out. In addition, she requested permission to familiarise herself with the materials in case no. 5649 in the presence of a public official. 30. By letter of 14 June 2001 Investigator G. informed the applicant's mother that access to the case file could not be granted as, in accordance with the relevant rules of procedure, the victim, the accused, the civil plaintiff and the defendant could familiarise themselves with the case file only after the investigation had been completed. 31. On an unspecified date before 5 July 2001, the head of a local human rights NGO, the Committee for Civil Rights (Комитет за гражданские права), acting as the applicant's defence counsel, sent a letter to the Moscow City Prosecutor complaining of the ineffective nature of the investigation into the applicant's allegations of ill-treatment. In his letter the defence counsel alleged that police officers B. (last name) and V. (first name) had participated in the beating of the applicant. He further alleged that police officer B. had been exerting pressure on witnesses in the criminal case against the applicant. As a result, the witnesses had confirmed B.'s version of events, according to which the applicant fell and injured his jaw during his arrest. 32. By letter of 7 August 2001 the acting head of the Department for Supervision of Investigation at the Moscow City Prosecutor's Office (и.о. начальника Управления по надзору за следствием при прокуратуре г. Москвы) informed the applicant's defence counsel that the criminal case against police officers of Otradnoe Police Station was being examined by the Butyrskiy Inter-District Prosecutor's Office. The letter stated that “a medical examination had been carried out and a number of witnesses had been questioned”. It was further stated that “the investigation was being supervised”. 33. On 23 August 2001 Investigator G. decided to stay the preliminary investigation of criminal case no. 5649 on the grounds that “the person against whom charges should be brought had not been identified”. 34. On 18 September 2001 the applicant's mother applied to Investigator G. seeking to obtain a copy of the decision to stay the preliminary investigation. 35. By letter of 28 September 2001 the Deputy to the Butyrskiy Inter­District Prosecutor (заместитель Бутырского межрайонного прокурора г. Москвы) informed the applicant's mother that the decision to stay the preliminary investigation had been set aside and that the investigation had been resumed and assigned to Investigator Ye. of the Butyrskiy Inter-District Prosecutor's Office of Moscow (следователь Бутырской межрайонной прокуратуры г. Москвы Е.). A letter along similar lines dated 1 October 2001 was received by the applicant's father from Investigator Ye. 36. By letter of 23 October 2001 the Moscow City Prosecutor's Office informed the applicant's defence counsel, in reply to his complaint about the ineffective nature of the investigation, that “the preliminary investigation had been resumed and the necessary investigative measures were being taken”. The letter also stated that “no evidence of pressure by the police officers of Otradnoe Police Station on witnesses or on the applicant's family had been found”. It was further stated that “the investigation was being supervised”. 37. By letter of 28 October 2001 Investigator Ye. informed the applicant and his parents that: “criminal proceedings no. 5649 ... have been terminated on 28 October 2001 ... owing to the lack of evidence of any crime having been committed.” 38. It appears that the applicant's mother lodged an appeal against that decision with the Moscow City Prosecutor's Office. 39. On 9 November 2001 she also requested permission to familiarise herself with the materials in criminal case no. 5649. 40. By letter of 19 November 2001 she was informed by Investigator Ye. that: “... The legislation does not permit the parties to criminal proceedings to obtain copies of the case-file materials. According to the law, only the accused, the victim and their counsel have the right to familiarise themselves with the materials in the case file. Your status, as well as the status of [the applicant] and [his father], is that of a WITNESS. Therefore, you do not have the right to familiarise yourself with the materials in the case file. Since the termination of the present criminal case affects the lawful interests of [the applicant], only he, after lodging a relevant request, will be allowed to familiarise himself with the decision, and only the decision, to terminate the criminal proceedings.” 41. By letter of 11 January 2002 the Moscow City Prosecutor's Office informed the applicant's mother and defence counsel that the decision of 28 October 2001 “had been found to be lawful and substantiated”. The City Prosecutor's Office also forwarded to the Butyrskiy Inter-District Prosecutor's Office the complaint of the applicant's mother and his defence counsel about the lack of access to the case file. 42. By letter of 21 January 2002 the Deputy to the Butyrskiy Inter­District Prosecutor informed the applicant's mother that as witnesses neither she, nor the applicant or his father, had the right to have full access to case file no. 5649. They could, however, familiarise themselves with the relevant decision to terminate the criminal proceedings by coming to the Butyrskiy Inter-District Prosecutor's Office at a convenient time. The letter further stated that “there were no grounds for transferring criminal case no. 5649 to another prosecutor's office in Moscow for a further investigation, or for imposing criminal liability on police officer B. and other persons, or for imposing disciplinary sanctions on Investigator Ye”. 43. By letter of 28 February 2002 the acting head of the Department for Supervision of Investigation at the Moscow City Prosecutor's Office informed the applicant's mother, in reply to her complaint about the ineffective nature of the investigation, that “the allegations of ill-treatment by police officers are not corroborated by the materials in the case”. In the letter it was further stated that “there was no evidence that the investigation was not being carried out in an objective way or that Investigator Ye. had threatened witnesses”. 44. By letter of 7 March 2002 the acting head of the Department for Supervision of Investigation at the Prosecutor General's Office (и.о. начальника Управления по надзору за расследованием преступлений органами прокуратуры при Генеральной прокуратуре РФ) informed the applicant's counsel, in reply to his complaint, that the General Prosecutor's Office had examined the applicant's case and the relevant materials. It had been found that the applicant had attempted to flee during his arrest on 10 February 2001. Therefore, the police officers had had to apply force, as a result of which the applicant had fallen and fractured his jaw. There was no criminal element in the actions of the police officers and, therefore, there were no grounds for reversing the decision to terminate the criminal proceedings. 45. According to the Government, on 11 June 2002 the investigation was reopened and transferred to the Moscow City Prosecutor's Office. Some time later, police officer B. was charged with abuse of office under Article 286 of the Criminal Code. The investigation established that on 10 February 2001 at around 12 midnight. the police officer B. escorted the applicant to Moscow police station no. 184 on suspicion of extortion. In office 5 of the station he inflicted blows to the applicant's jaw with his right fist with a view to forcing the applicant to confess. 46. On 2 July 2003 the investigation in this case was completed and the case file was sent for examination to a trial court. 47. According to a judgment dated 10 February 2006, the Butyrskiy District Court of the city of Moscow had examined police officer B.'s alleged actions and acquitted him in respect of the episode involving the applicant. The court, having questioned a number of witnesses, including the applicant, his family members as well as the doctors and police officers, found that the statements and other evidence collected by the investigation had been too confusing and contradictory to enable the court to conclude with sufficient certainty that the injuries in question had indeed been inflicted by officer B. 48. In particular, in respect of the statements given by the applicant during the trial, the court stated as follows: “... The court is critical in respect of the statements made by [the applicant during the trial] and does not trust them, since they are self-contradictory as well as incompatible with the objective information contained in the case file. From his statements it is clear that he believes that the blows were inflicted on him by B., and not anyone else, and that it is his presumption. At the same time, under [domestic law] all doubts concerning the guilt of the accused which cannot be eliminated in accordance with the Code of Criminal Procedure are interpreted in favour of the accused. Also, the court considers that by giving these statements, the applicant is trying to defend himself and the extortion committed by him by showing that his initial confessions were motivated by police coercion. Later, however, [the criminal case against the applicant] was discontinued owing to an Amnesty Act, that is, on the basis of non-rehabilitative grounds ...” 49. Having examined some further witnesses, including the family of the applicant and the medical personnel who carried out the medical examination of the applicant, the court noted that: “... All the statements by witnesses ... to which the prosecution is referring, do not prove the guilt of B. in connection with [the crime], since they only indirectly confirm the fact that injuries were inflicted on [the applicant],on the basis of the descriptions made by [the applicant himself].” 50. The court noted that the police officers who had been on duty on 10 February 2001 had consistently stated that no coercion or violence had been used in respect of the applicant. 51. The court further noted that it had examined the two medical examination reports submitted in the prosecution case file, both confirming the existence of the injuries on the applicant's body. The court accepted one of them as evidence in the case and rejected the other on the grounds that the prosecution had failed to comply with legal requirements concerning the use of copies of documents and the methodology of the examination. 52. The court did not elaborate on other possible causes of the applicant's injuries, having limited the analysis to the issue of B.'s involvement in the incident. At the same time, the court stated that: “... [it] takes note of the fact that the bodies involved in the preliminary investigation, by bringing criminal proceedings in respect of B. on a request by [the applicant], took the decision not to initiate criminal proceedings in respect of N., Ch., Sh. [other police officers], even though [the applicant himself] had sought a finding of liability in respect of all of the persons mentioned, and thus accepted [the applicant's] application only in part...” 53. The judgment of 10 February 2006 was upheld on appeal by the Moscow City Court on 29 March 2006. 54. In particular, the City Court agreed with the District Court's conclusion concerning the assessment of admissibility of the medical examinations of the applicant. The City Court specifically noted that in a decision of 30 July 2002 the investigator in charge of the case had acknowledged that: “... medical documents and x-rays of [the applicant] from polyclinic no. 218 and Moscow City Hospital no. 1 could not be submitted for expert examination because they had been lost by an investigator of [the local prosecutor's office] ...” 55. The court further noted that: “As can be seen from the case file, the court was unable to locate the original medical documents in question confirming [the applicant's injuries], as attested by the reply of 12 December 2005 no. 34 15 2002 066057 from the Moscow City Prosecutor's Office ...” 56. Article 21 § 2 of the Constitution provides that no one may be subjected to torture, violence or any other cruel or degrading treatment or punishment. 57. Article 286 § 3 (a) of the Criminal Code provides that actions of a public official which clearly exceed his authority and entail a substantial violation of the rights and lawful interests of citizens, committed with violence or the threat of violence, shall be punishable by three to ten years' imprisonment with a prohibition on occupying certain posts or engaging in certain activities for a period of three years. 58. Article 109 of the Code of Criminal Procedure of 1961 (Уголовно­процессуальный кодекс РСФСР), as in force at the relevant time, provided that a prosecutor, investigator, inquiry body or judge were obliged to consider applications and information about any crime committed, and to take a decision on that information within three days. In exceptional cases, this time-limit could be extended to ten days. The decision should be either a) to institute criminal proceedings, or b) to refuse to institute criminal proceedings, or c) to transmit the information to another competent authority. 59. Article 209 of the Code provides that in order to terminate the proceedings the investigator should adopt a reasoned decision with a statement of the substance of the case and the reasons for its termination. A copy of the decision to terminate the proceedings should be forwarded by the investigator to the prosecutor. The investigator should also notify the victim and the complainant in writing of the termination of the proceedings and the reasons for that, and explain how they could appeal against that decision. An appeal against the decision to terminate proceedings could be lodged with the prosecutor or a court within five days of the date of notification of the decision. 60. Under Article 210 of the Code, the prosecutor could reverse the above decision of the investigator and reopen the proceedings. 61. Under Article 211 of the Code, the prosecutor was responsible for the general supervision of the investigation. In particular, the prosecutor could order that specific investigative activities be carried out, transfer the case from one investigator to another, or reverse unlawful and unsubstantiated decisions taken by investigators and inquiry bodies.