Communicated on 25 January 2016
FIFTH SECTION
Application no. 36043/13
Nikita OSTROVEŅECS
against Latvia
lodged on 24 May 2013
STATEMENT OF FACTS
1. The applicant, Mr Nikita Ostroveņecs, is a Latvian national who was born in February 1993 and is detained in Jēkabpils. He is represented before the Court by Mr M. Intlers, a lawyer practising in Rīga.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Ill-treatment of the applicant
3. In 2010 the Riga Regional Court heard a criminal case in which the applicant (who was a minor at the time of the trial) was accused of aggravated murder and intentional destruction of property. The applicant pleaded guilty on some counts and not guilty on others. He was held in detention in Riga Central Prison and was transported to the Riga Regional Court for the hearings.
4. The applicant submits that on 20, 21, 24 and 25 May 2010 after being taken to the holding area in the basement of the Riga Regional Court he was insulted and physically assaulted by the escorting officers with the aim of coercing him into pleading guilty on all counts. In particular, after undergoing the usual search procedure he was made to perform certain physical exercises, such as push-ups and a “duck walk” (walking slowly in a squatting position); if any of those exercises were not performed precisely, he received a blow to the back with a rubber truncheon. The applicant further submits that he was also beaten during the breaks and after the hearings and that he received blows to different parts of the body. During the beatings the escorting officers expressed their opinion regarding the criminal proceedings and their negative and belittling attitude towards the applicant. They also threatened to kill or mutilate the applicant if he did not plead guilty on all counts. Having been psychologically broken, during the hearing of 25 May 2010 the applicant pleaded guilty on all counts and refused to testify, without having consulted his lawyer.
5. On 26 May 2010 the applicant’s mother visited him in Riga Central Prison; the applicant told her about the violence and coercion. He also showed her the bruises he had sustained and informed her that his co-accused had also been beaten and coerced to testify. On the following day the applicant’s mother, acting as his representative, lodged a complaint with the prosecution requesting the institution of criminal proceedings against the escorting officers. On 2 June 2010 she lodged a similar complaint with the Internal Security Office of the State Police (Valsts policijas Iekšējās drošības birojs).
6. On 26 May 2010 employees of the Ombudsperson’s Office visited Riga Central Prison, where they spoke to the applicant. On the following day the Ombudsperson wrote a letter to the Internal Security Office stating that the applicant had alleged that the escorting officers had used violence against him. The applicant had also showed the above-mentioned employees traces of the alleged violence – a haematoma on his hip and abrasions on his arm and legs. The Ombudsperson called for the actions of escorting officers while transferring minors to be monitored. For informational purposes, this letter was also forwarded to the Riga Regional Court judge who was hearing the applicant’s criminal case.
7. On 27 May 2010 applicant was visited by his lawyer, Mr Intlers, who on the same day lodged a complaint with the prosecution. Mr Intlers also submitted that the applicant had shown him his injuries and had told him that the escorting officers had physically assaulted and threatened all four of the co-accused. Mr Intlers emphasised that as a result of this coercion the applicant had pleaded guilty, contrary to his defence position. The actions of the police officers had thus constituted coercion to testify.
8. On 28 May 2010 Riga Central Prison faxed to the Riga Regional Court judge who was hearing the applicant’s criminal case a medical certificate in respect of the applicant’s medical examination of 26 May 2010. The certificate was signed by the doctor of the prison’s medical unit and stated that the applicant had complained of having been beaten with truncheons on 20, 21 and 24 May 2010 at the time of his being transferred. According to that certificate, the applicant’s general condition had been satisfactory but he had had several injuries with scabs on his lower legs; injuries with scabs on the right hand where a handcuff had been attached; a haematoma four centimetres in diameter on his left forearm; and a haematoma six centimetres in diameter on the right side in the area of the kidney.
2. Internal inquiry
9. On 18 June 2010 the Internal Security Office of the State Police sent a letter to the Riga Regional Department of the State Police stating that the file did not contain enough information to indicate that the escorting officers had committed a criminal offence. Accordingly, a copy of the case file was forwarded to the head of the Riga Regional Department for him to decide whether the actions of his employees had been compatible with the requirements of law.
10. On 3 August 2010 the Riga Regional Division of the State Police informed the applicant’s mother that the information gathered during the internal inquiry did not indicate that a disciplinary offence had been committed. However, as she had complained about the use of physical force and infliction of injuries, the case file was returned to the Internal Security Office so that it could be decided whether criminal proceedings should be instituted.
11. On 11 August 2010 the Internal Security Office refused to institute criminal proceedings. Its reasoning for that decision stated that the elements of the crime of abuse of an official position, as listed in section 317 of the Criminal Law, had not been made out. On 26 August 2010 a prosecutor of the Office of the Prosecutor General quashed that decision and sent the case file back to the Internal Security Office for further investigation.
12. On 10 November 2010 the Internal Security Office again refused to institute criminal proceedings, noting that the materials gathered during the additional investigation did not indicate that a crime had been committed. On 17 December 2010 the prosecutor of the Office of the Prosecutor General also quashed this decision on the grounds that it had been based on an incomplete investigation. The prosecutor instructed the Internal Security Office to carry out a supplementary internal inquiry and to take a decision that would be compatible with the requirements of law.
13. On 31 January 2012, for the third time, the Internal Security Office refused to institute criminal proceedings. On 22 February 2012 the prosecutor of the Office of the Prosecutor General quashed this decision, noting that the materials gathered during the internal inquiry pointed to the possibility that a criminal offence had been committed and that this information could only be verified within criminal proceedings. On these grounds, she instituted criminal proceedings (no. 12812000312) and returned the case file back to the Internal Security Office for further investigation.
3. Criminal investigation
14. On 20 March 2012 the applicant’s three co-accused testified as witnesses. They all stated that it was difficult to remember the events in question owing to the length of time that had elapsed and all of them stated that they did not wish to be declared victims in the criminal proceedings. Moreover, none of them had sought medical aid at the time of the events. Nonetheless, all three consistently testified that on the days of the hearings, after undergoing the standard search procedure, they had been made to perform different humiliating exercises, such as push-ups and a “duck walk” and that the escorting officers had beaten them. In addition, one of them testified that he had seen the applicant being beaten; the other two attested that they had heard screams and that the applicant had later told them that he had been beaten. The applicant’s own subsequent testimony corroborated this evidence. However, when the applicant was shown photographs of several escorting officers he could not identify the persons who had assaulted him. Testimony was also taken from the sixteen escorting officers who had been involved in the transfer of the applicant and his co-accused. They all attested that nobody had been beaten.
15. On 3 May 2012 an expert forensic medical report was ordered. The report concluded that in respect of the applicant’s three co-accused the medical documentation contained no records of injuries sustained over the relevant time period. In respect of the applicant the report concluded that the description of the injuries contained in the medical documentation, in the record of the applicant’s questioning by police, and in the hearings records was incomplete. Thus, there was insufficient information to determine the exact time at which the injuries had been sustained, how extensive they were, and the degree of trauma or force employed to inflict them. However, it could not be excluded that the injuries had appeared between 20 and 25 May 2010 in the circumstances indicated in the record of the applicant’s questioning.
16. On 20 July 2012 the Internal Security Office decided to terminate the criminal proceedings on the grounds that the elements of the crime were not made out. In particular, the expert report had not referred to any injuries that had been precisely recorded in the medical documentation and no irrefutable evidence had been adduced establishing that the injuries had been inflicted by the police officers.
17. On 6 August 2012 the applicant’s mother lodged a complaint against this decision, the applicant having on 21 October 2011 granted her power of attorney (universālpilnvara) to take any action concerning his property. This power of attorney entitled the applicant’s mother inter alia to represent the applicant before the police, the courts and other institutions in relation to all rights vested in victims. Prior to this authorisation she had represented the applicant on the grounds of his being a minor. The applicant’s mother complained that the presentation of photographs to the applicant for the purpose of identifying those persons who had allegedly assaulted him had been organised in a manner that precluded the applicant from being able to recognise those perpetrators – he had been shown small, black-and-white photographs while being surrounded by seven escorting officers. This had served to intimidate the applicant. She also expressed further concerns as to the manner in which the investigation had been conducted.
18. On 6 September 2012 a prosecutor from the Riga City Latgale district prosecutor’s office dismissed her complaints about the investigation and reiterated that the elements of a crime had not been made out.
19. On 22 September 2012 the applicant’s mother lodged a complaint. In addition to the issues raised previously she pointed to the delay that had occurred owing to the internal inquiry having come to a standstill. She also expressed concern about the fact that during the internal inquiry an official from the Internal Security Office had “interviewed” the applicant and the co-accused, who had been minors at the relevant time, in the absence of a lawyer or a representative. After those “interviews” the co-accused had all refused to testify.
20. On 24 October 2012 the chief prosecutor of the Riga City Latgale district prosecutor’s office dismissed the applicant’s mother’s complaints on their merits. However, he also drew her attention to the fact that the applicant had only testified as a witness and had not been given the status of victim and hence could not be represented by another person. Moreover, as the applicant’s mother herself was not involved in these criminal proceedings, she had no standing to bring further complaints.
21. On 9 November 2012 the applicant lodged a complaint in which he stated that his mother had been authorised to lodge complaints in his name under the power of attorney that he had granted her on 21 October 2011. He further noted that the assessment of the flaws in the proceedings had been superficial and had not properly addressed the points raised by his mother. He emphasised that no explanation had been given for the injuries that he had sustained while in custody or for the delay in the institution of the investigation and the superficial manner in which it had been conducted.
22. On 12 December 2012 the chief prosecutor of the Prosecutor’s Office attached to the Riga Regional Court responded that the applicant’s procedural status was that of a witness and that witnesses had no right to authorise other persons to exercise their procedural rights on their behalf. Furthermore, the applicant himself did not have a right to challenge the response that had been given to his mother, as he was not the addressee of this letter sent to her. Lastly, because he had not been the one who had lodged the initial complaints, the applicant had missed the deadline for lodging a complaint against the decision of 20 July 2012 terminating the criminal proceedings. Accordingly, the applicant’s complaint was not examined.
4. Report of the Ombudsperson
23. On 28 July 2011 the applicant complained to the Ombudsperson, who then instituted an investigation and requested information from Rīga Central Prison, the State Centre for Forensic Medical Examination and the Internal Security Office of the State Police. On 16 May 2012 the Ombudsperson delivered a report in which he observed that, as the criminal investigation was still ongoing, it would be premature to assess the proceedings as a whole. However, with regard to the internal inquiry, the Ombudsperson expressed concerns regarding the institutional independence of the Internal Security Office of the State Police when analysing offences allegedly committed by police officers. Further, the Ombudsperson noted that the internal inquiry had lasted one year and seven months – beyond a reasonable time-limit. He also considered that the inquiry had not been carried out with the requisite diligence, as exemplified by the repeated quashing of decisions not to institute criminal proceedings. The Ombudsperson expressed concerns that flaws in the internal inquiry might render it impossible to establish whether the applicant’s injuries had been inflicted by the police officers. Thus, the internal inquiry of the State Police could not be regarded as constituting an effective remedy within the meaning of Article 13 of the Convention. Nonetheless, the Ombudsperson considered that it would be premature to pronounce on a violation of Article 3 of the Convention.
B. Relevant domestic law
24. Section 317 of the Criminal Law, as worded at the time in question, provided that intentional actions on the part of a State official that manifestly exceeded the powers and authority vested in him or her by law or pursuant to his or her assigned duties rendered that official criminally liable if substantial harm was thereby caused to the State, administrative order, or legally protected individual rights and interests. The applicable punishment was imprisonment of up to three years, community service or a fine of up to one hundred times the minimum monthly wage.
25. If the same actions had had serious consequences or involved violence or the threat of violence, or if they had been carried out with the aim of obtaining a material benefit, the applicable punishment was imprisonment of up to five years, community service, or a fine of up to two hundred times the minimum monthly wage. If, however, the action in question had involved torture or had had grave consequences, the applicable punishment was imprisonment of up to ten years.
COMPLAINT
The applicant complains under Article 3 of the Convention about his ill-treatment by the escorting officers on 20, 21, 24 and 25 May 2010 and of the ineffectiveness of the ensuing internal inquiry and criminal investigation. With regard to the ineffectiveness of the internal inquiry the applicant also invokes Article 13 of the Convention.
QUESTIONS TO THE PARTIES
1. Was the applicant subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention (see paragraphs 100-101 of Bouyid v. Belgium [GC], no. 23380/09, 28 September 2015)?
2. Having regard to the procedural protection from inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?
The Government are requested to submit to the Court a copy of the case file of the internal inquiry, the investigative file of criminal case no. 12812000312 and the record of the court hearings held in respect of criminal case no. 11092114109.
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