DULATOV AND ASANOV v. RUSSIA

Communicated on 8 June 2015

FIRST SECTION

Application no. 29057/08
Azat Mussalamovich DULATOV and Ilmir Munirovich ASANOV
against Russia
lodged on 23 May 2008

STATEMENT OF FACTS

1. The applicants, Mr Azat Mussalamovich Dulatov and his cousin Mr Ilmir Munirovich Asanov, are Russian nationals, who were born in 1959 and 1972 and live in Ufa and Buzdyak, the Republic of Bashkortostan, respectively.

2. The facts of the case, as submitted by the applicants, may be summarised as follows.

A. The applicants’ alleged ill-treatment

1. Mr Dulatov

3. On 28 February 2004 around 10 a.m. the first applicant came to the Department for the Fight against Economic Crimes of the Leninskiy district police department of Ufa (ОБЭП Ленинского РОВД г. Уфы), being invited to give explanations concerning the fraudulent withdrawal of cash from a bank account with the use of his passport.

4. According to the applicant, at the police station he was beaten up by police officers in order to force him to confess to fraud. It appears that the applicant did not admit his guilt and did not sign any self-incriminating statements.

5. On the same day a criminal case was opened against the applicant. At 11 p.m. the police issued his arrest record. On 1 March 2004 the court extended his arrest for 72 hours until 4 March 2004.

6. On 2 March 2004, during a witness confrontation, the applicant complained of dizziness and pain in the left ear, left hand, right side of the chest and left leg. He asked to see a doctor, alleging that his bodily injuries had been inflicted by the police officers from the Leninskiy district police department.

7. On 4 March 2004, at the request of the applicant’s lawyer, the investigator ordered the applicant’s forensic medical examination.

8. According to forensic medical examination report no. 2017 of 4 March 2004, the applicant had the following bodily injuries: (i) a bruise on the chest (2x2 cm); (ii) two bruises on the left shoulder (7x4 cm and 12x7.5 cm); and (iii) a bruise on the left hip (14x4 cm). The expert concluded that these bruises had been inflicted by impact force of blunt objects 4-5 days ago. She did not exclude that the injuries had been inflicted on 28 February 2004. The expert further concluded that these injuries did not entail short-term health problems and could not be considered as health damage. At the same time, she excluded that the injuries could be incurred as a result of the applicant falling from his own height.

9. On 4 March 2004 the Leninskiy District Court of Ufa ordered that the applicant be detained on remand.

10. In her submissions to the prosecutor of Bashkortostan of 9 March 2004, witness B. indicated that on 28 February 2004 she had come to the Leninskiy district police department of Ufa together with the applicant for a police interview. During the interview, she allegedly heard that the applicant had been beaten and threatened in the next door office. Then she allegedly saw the applicant shaking with bruises and blood coming out of his right ear. According to the applicant, witness B. confirmed these statements during her questioning in connection with his criminal case on 21 May 2004.

2. Mr Asanov

11. On 28 February 2004 around 4 p.m. the second applicant was apprehended by police officers G. and Z. at the first applicant’s home and taken to the Leninskiy district police department of Ufa.

12. According to the applicant’s submissions, at the police station he was beaten up by several police officers in order to force him to confess to fraud. It appears that the applicant did not confess and did not sign any self‑incriminating statements.

13. A more detailed account of the applicant’s alleged ill-treatment can be found in his appeal to the Leninskiy district court of Ufa of 8 June 2004 (see paragraph 26 below): approximately four police officers beat him up until 10 p.m., punching him in the head, chest and body and striking his head against the wall. His face got swollen. One of the police officers threatened him that he would put him in jail for one crime or another. After the beatings they let the applicant wash his face in a toilet. They then took him to an identification parade in front of two witnesses Ms I.Z. and Ms I.N. According to the applicant, those witnesses, as well as witness B. stated when questioned at the pre-trial stage of the criminal proceedings against him that they had seen him at the police station immediately after his arrest and confirmed that he had had no injuries at that time. At the trial, witnesses I.Z. and I.N. allegedly submitted that the applicant had had no injuries at 9 p.m. on 28 February 2004.

14. At 10.25 p.m. on 28 February 2004 the police drew up a record of the applicant’s arrest. He was later taken to the Leninskiy district police temporary detention facility, but was not accepted there due to his bodily injuries. For this reason, the applicant was then taken to town hospital no. 21, where his injuries were recorded by a doctor. The applicant requested the prosecutor to order his forensic medical examination on the basis of these records; however, no examination was ordered.

15. On 1 March 2004 the Leninskiy District Court of Ufa ordered the applicant’s detention on remand.

16. On 2 March 2004 at 9.45 a.m. the applicant was examined in pre‑trial detention facility IZ 3/1. It was stated in his medical records that he had the following bodily injuries: “multiple injuries of body’s soft tissues, both shoulders, left hand and both eyes, measuring 4x6 cm, 3x5 cm, and 5x10 cm; as well as both ears”.

B. Pre-investigation inquiry into the applicants’ alleged ill-treatment

1. Mr Dulatov

17. On 2 March 2004 the applicant brought a complaint about his alleged beating by the police officers to the prosecutor of the Leninskiy district of Ufa.

18. On 11 March 2004 the investigator of the Leninskiy district prosecutor’s office refused to institute criminal proceedings against the police officers.

19. On 17 March 2004 the applicant reiterated his complaint.

20. On 22 March 2004 the Leninskiy district prosecutor revoked the investigator’s decision and ordered an additional inquiry.

21. On 24 March 2004 the investigator issued a new refusal to institute criminal proceedings pursuant to Article 24 § 1 (1) of the Code of Criminal Procedure (“CCrP”) for the absence of a crime. In their statements to the investigation authorities, police officers Z., L. and G. denied the applicant’s ill-treatment at the police station. They offered no explanation for the applicant’s injuries, as recorded in forensic medical examination report dated 4 March 2004.

2. Mr Asanov

22. On 2 March 2004 the applicant’s statements concerning the origin of his bodily injuries were forwarded to the Leninskiy district prosecutor’s office.

23. On 14 March 2004 an investigator of the prosecutor’s office refused to institute criminal proceedings against the police officers pursuant to Article 24 § 1 (2) of CCrP, for the absence of a crime under Article 302 of the Criminal Code (extortion of confession) in the acts of the police officers.

24. In their statements to the investigation authorities police officers G. and Z. denied the applicant’s ill-treatment at the police station. They submitted that the applicant had refused to follow them to the police station and tried to abscond when they had come to arrest him on 28 February 2004. G. had tripped him up and he had fallen down on the staircase and injured his face. They had used physical force and operational devices due to his resistance. They then had brought him to the police station for investigative measures. No physical or psychological pressure had been used against the applicant at the police station. On the basis of these statements, the investigator concluded that: (i) the actions of police officers G. and Z. had been lawful; and (ii) the facts of the applicant’s beatings had not been confirmed.

25. It does not follow from the materials of the case-file that the investigation authorities interviewed witnesses B., I.Z. and I.N. or ordered the applicant’s forensic medical examination.

26. On 8 June 2004 the applicant’s lawyer lodged a court appeal against the investigator’s decision of 14 March 2004, pursuant to Article 125 of the CCrP. On 31 August 2004 the Leninskiy District Court dismissed the applicant’s appeal on the ground that it should be examined in the criminal proceedings against him, since his criminal case had by that time been forwarded to the same court for trial.

27. After the trial in his criminal case (see paragraphs 38-42 below), on 23 October 2007, the applicant again lodged a court appeal under Article 125 of the CCrP against the investigator’s decision of 14 March 2004, also complaining about the alleged inactivity of the investigation authorities in relation to his complaint of 28 March 2007 (see paragraph 28 below). On 30 October 2007 the Leninskiy District Court did not examine the applicant’s complaint on the ground that his criminal case had been examined by the trial court; and the judgment, convicting the applicant of fraud, had entered into force. The applicant challenged the court’s reply to the Supreme Court of Bashkortostan, which allegedly did not examine his appeal.

3. Joinder of the applicants’ complaints

28. In 2005-2007 the first and the second applicants brought several new complaints to the Leninskiy district prosecutor’s office and the prosecutor’s office of the Republic of Bashkortostan. Their complaints of 28 and 29 March 2007, respectively, were joined.

29. On 31 March 2007 the investigator of the Leninskiy district prosecutor’s office decided that no criminal case could be opened. That decision was revoked on 6 August 2007 by the acting prosecutor of the Leninskiy district of Ufa on the grounds that the inquiry had been incomplete.

30. On 9 August 2007 the investigator of the prosecutor’s office of the Republic of Bashkortostan decided that no criminal case could be opened. That decision was also revoked on 18 September 2007 by the higher authority within the investigative committee for the same reason and a new refusal to bring criminal proceedings followed on 28 September 2007.

31. On 12 October 2007 the acting prosecutor of the Leninskiy district of Ufa forwarded the inquiry materials to the investigative committee of the prosecutor’s office of the Republic of Bashkortostan for a new decision.

32. The most recent refusal to institute criminal proceedings against the police officers under Articles 299 (criminal prosecution of a person known to be innocent) and 303 (falsification of evidence) of the Criminal Code was issued on 27 October 2007 by the investigator of the prosecutor’s office of the Republic of Bashkortostan pursuant to Article 24 § 1 (2) of CCrP on the grounds that the constituent elements of a crime were missing.

33. In their statements, police officers N. and I. denied the applicants’ ill-treatment, alleging that neither physical, nor psychological pressure had been exerted on the applicants. I. further noted that he could not remember the details of the operative measures in relation to the applicants in 2004 due to a long lapse of time.

34. In his submissions to the investigation authorities the first applicant noted that he had been beaten by police officer G. He could not remember the names of the other police officers. He also indicated that his beatings at the police station could be confirmed by witnesses B. and M.

35. In his submissions to the investigation authorities the second applicant noted that he had been beaten up by several police officers. He further indicated that witness B. could have confirmed the absence of any bodily injuries on him at the time when he had been brought to the police station around 4 p.m. on 28 February 2004. According to the applicant, witnesses I.Z. and I.N. had also seen him at the police station around 4 p.m. on 28 February 2004 without any signs of injuries.

36. The most recent refusal to institute criminal proceedings against the police officers does not contain any information about interviews of witnesses B., M., I.Z. and I.N., or police officer G. and other police officers, except for N. and I. Nor does it mention the first applicant’s forensic medical examination on 4 March 2004, the second applicant’s medical examination on 2 March 2004, or provides any explanation to the applicants’ injuries.

37. The first applicant appealed against the decision of 27 October 2007. On 28 February 2008 the Leninsky District Court left the applicant’s complaint without examination on the grounds that he had not submitted all necessary documents.

C. Criminal proceedings against the applicants

38. On 23 December 2004 the applicants’ trial started.

39. On 13 April 2007 the Leninskiy District Court of Ufa convicted the applicants of fraud.

40. The trial court examined the applicants’ allegations of ill-treatment and considered them unfounded. The court briefly noted that the case materials did not contain evidence of the applicants’ ill-treatment by the police officers. The court relied on the statements of police officer I., who had denied the applicants’ ill-treatment.

41. The judgment of 13 April 2007 refers to the following statements by the witnesses:

(i) B’s statement that on 28 February 2004 at the police station she had heard the first applicant’s voice in the next door office and “become scared that she would be the next”; and that she had given her statements against the applicants under pressure;

(ii) M’s statement, read at the trial, that he had seen both applicants on 27 February 2004 around 6 p.m. (i.e. before the applicants’ arrest);

(iii) I.N.’s statement that she had not seen any visible bodily injuries on the applicant at the police station on 28 February 2004.

42. On 27 November 2007 the Supreme Court of Bashkortostan upheld the judgment on appeal. The appeal judgment did not address the applicant’s complaints about their alleged ill-treatment; the appeal court noted, in general, the absence of any significant breaches of the criminal procedural law.

43. On 21 May 2008 the Supreme Court of Bashkortostan partly modified the qualification of the crime by way of supervisory review. The first and the second applicants were sentenced to four and three years’ imprisonment, respectively. The remainder of the judgment was upheld.

COMPLAINTS

The applicants complain under Article 3 of the Convention that they were subjected to ill-treatment by the police officers at the Leninskiy district police department of Ufa. They further complain under Article 13 of the Convention in conjunction with Article 3 that the State failed to conduct an effective investigation into those events.

QUESTIONS TO THE PARTIES

1. Having regard to:

(a) the applicants’ interviews by police officers at the police offices about their alleged involvement in crime, before they were recognised as suspects in criminal proceedings,

(b) the injuries found on the applicants thereafter, and

(c) the forensic medical expert’s conclusions and medical documents,

have the applicants been subjected to torture or inhuman or degrading treatment in breach of Article 3 of the Convention (see Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999‑V; and, among many other authorities, Polonskiy v. Russia, no. 30033/05, §§ 122-23, 19 March 2009; Gladyshev v. Russia, no. 2807/04, § 57, 30 July 2009; Alchagin v. Russia, no. 20212/05, §§ 53‑54 and 56, 17 January 2012; A.A. v. Russia, no. 49097/08, §§ 75, 77 and 80-81, 17 January 2012; Yudina v. Russia, no. 52327/08, §§ 67-68, 10 July 2012; Ablyazov v. Russia, no. 22867/05, §§ 49-50, 30 October 2012; Tangiyev v. Russia, no. 27610/05, §§ 53-55, 11 December 2012; Markaryan v. Russia, no. 12102/05, §§ 60-61, 4 April 2013; Nasakin v. Russia, no. 22735/05, §§ 52-53, 18 July 2013; Aleksandr Novoselov v. Russia, no. 33954/05, §§ 61-62, 28 November 2013; Velikanov v. Russia, no. 4124/08, § 51, 30 January 2014)?

2. Have the authorities discharged their burden of proof by providing a plausible or satisfactory and convincing explanation of how the applicants’ injuries were caused (see Selmouni, cited above, § 87, and Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000‑VII)?

3. Having regard to:

(a) the investigative committees’ refusals to open criminal cases and carry out investigations into the applicants’ alleged ill-treatment by the police,

(b) the revocation of those refusals by the investigative committees’ superiors as based on the incomplete pre‑investigation inquiries, and

(c) the investigative committees’ inability to carry out the investigative measures within the framework of the pre-investigation inquiries, e.g. confrontations and identification parades,

was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention (see Lyapin v. Russia, no. 46956/09, §§ 125-40, 24 July 2014)?

4. Did the applicants have at their disposal an effective domestic remedy for their complaints under Article 3, as required by Article 13 of the Convention?

5. The Government are invited to submit documents containing the following information in respect of the applicants’ alleged ill-treatment in police custody:

(a) the time of their arrival and stay at the police offices, the temporary detention facilities (IVS), the pre-trial detention facilities (SIZO), the medical institutions (ambulance, traumatology centre, hospital, forensic medical examination bureau, etc.), as applicable;

(b) the applicants’ injuries and/or their state of health, as recorded in the places listed above in paragraph “a”;

(c) the applicants’ self-incriminatory statements or explanations to the police officers in any form, e.g. a statement of surrender and confession (явка с повинной), an explanation, etc., if applicable;

(d) the time when the applicants were recognized as suspects in the criminal proceedings, informed of their rights as suspects, informed their families or other third parties about their detention, and had access to a lawyer;

(e) the forensic medical experts’ conclusions about the applicants’ injuries, investigators’ decisions ordering the applicants’ forensic medical examinations in respect of each forensic medical expert’s report, and explanations by the applicants and the police officers as to the origin of the injuries, on the basis of which the experts’ opinions were sought;

(f) the summary of the information from the above list (paragraphs from “a” to “e”) in respect of each applicant.

6. As regards the inquiry into the applicants’ alleged ill-treatment, the Government are invited to submit:

(a) the numbered list of all decisions by investigating authorities concerning each of the applicants in chronological order (name of the relevant authority, date, the ground (provision of the Code of Criminal Procedure) for the refusal to open a criminal case – in relation to each decision – the relevant decision to revoke it or set it aside (with the name of the relevant authority, date, and the reason for the revocation or setting aside);

(b) the numbered list of all court decisions on the applicants’ appeals against the investigators’ decisions in each of two cases in chronological order (court, date and outcome);

(c) copies of the above decisions by the investigating authorities and the courts in the same order.

7. The Government are further invited to submit:

(a) the records of examination of witnesses B., M., I.Z. and I.N. at the pre-trial stage of the criminal proceedings against the applicants; and

(b) extracts from the records of the hearing of the applicants’ criminal case with statements by the above witnesses.

 

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