Communicated on 27 January 2015
FIRST SECTION
Application no. 22350/11
Konstantin Viktorovich PODYAPOLSKIY and Olga Ulyanovna MAZUR against Russia
lodged on 9 March 2011
STATEMENT OF FACTS
The applicants, Mr Konstantin Viktorovich Podyapolskiy (“the first applicant”) and Ms Olga Ulyanovna Mazur (“the second applicant”), are Russian nationals, who were born in 1950 and 1952 respectively and live in Moscow. They are represented before the Court by Mr A. Liptser, a lawyer practising in Moscow.
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants are husband and wife.
On 21 December 2009 they participated in an unauthorised demonstration in front of the State Duma in Moscow. Ten people, all of them victims of housing construction frauds, handcuffed themselves to the State Duma fence. The applicants were filming the demonstration.
Immediately, military officers of military unit no. 38984 guarding the State Duma detached the participants from the fence and asked them to disperse.
1. The applicants’ version of the events
According to the applicants, one of the guards came up to the second applicant and attempted to prevent her from filming. The second applicant moved away from the guard and continued filming. Another guard approached her and tried to snatch her camera away from her. He brandished a truncheon and his behaviour was aggressive. The first applicant came to her help and positioned himself between the guard and the second applicant. Three guards then knocked him down to the ground and started to hit him with their truncheons. The second applicant was also kicked down to the ground and her camera was snatched away from her. The applicants were then dragged inside the State Duma building where they were left lying on the floor with their hands handcuffed behind their backs. They asked for water and to see a doctor. The guards refused to give them water. After repeated requests they however agreed to call an ambulance. The applicants were eventually given back their camera, but the video recordings were destroyed.
The applicants were then transported to the Skliphosovskiy emergency medical centre where the second applicant remained until 25 December 2009 for treatment. According to a medical certificate issued by the emergency medical centre on 25 December 2009, she was treated for chest contusion. The doctors of the emergency medical centre also examined the second applicant. They noted in the medical certificate of 21 December 2009 that he had bruises and abrasions on the head, the right hip and the chest.
2. The guards’ version of the events
According to the military guards of military unit no. 38984, one of them, Major Ch., positioned himself in front of the second applicant to prevent her from filming the dispersal of the demonstration. The first applicant tried to push him away. The second applicant then moved to a certain distance from Major Ch. and continued filming. The access to the area where the second applicant was now standing was restricted because a visit from a person under state protection was expected. Lieutenant R. came up to the second applicant, shielded the lens of her camera with his hand and requested her identity documents. The second applicant pushed him away. At that moment the first applicant gripped Lieutenant R. and attempted to bring him on the ground. Six guards – Captain V., Lieutenant B., Major Ch., Major V., Major M. and Captain M. – came to Lieutenant R.’s help and dragged the first applicant away from him. The first applicant showed resistance by pushing and hitting the guards. To calm him down, the guards used physical force and handcuffed him. In the meantime, the second applicant attempted to run away, but slipped on the icy road and fell to the ground. Major Ch. and Major V. approached her with the intention of helping her rise to her feet, but she hit and kicked them and bit Major Ch.’s finger. To overcome her resistance, Major Ch. and Major V. used physical force against the second applicant and handcuffed her. The applicants were then carried into the State Duma’s entry checkpoint building. An ambulance was called at their request.
3. Pre-investigation inquiry
The applicants complained about ill-treatment to the Moscow Investigations Committee.
The investigator appointed a medical expert to assess the applicants’ injuries. The medical expert noted in his report of 12 February 2009 that the first applicant had a rib fracture and bruises on his face. The second applicant’s injury mentioned in the medical certificate of 25 December 2009 could not be assessed by the expert for the lack of objective medical data.
The investigator questioned the applicants, the commander of military unit no. 38984 and the military guards who had taken part in the incident of 21 December 2009.
The investigator also questioned several of the participants to the manifestation of 21 December 2009 who confirmed the applicants’ version of the events.
One of the State Duma drivers testified to the investigator that he had seen the second applicant fall when running away from the guards. She had then hit and bit the guards who had tried to help her rise to her fit. He had not seen the guards hitting the second applicant.
Lastly, the investigator also watched the video recordings of street watch cameras and State Duma internal watch cameras. According to the investigator, they confirmed the guards’ version of the events.
On 18 February 2010 the Moscow Investigations Committee refused to open criminal proceedings into the incident of 21 December 2009. It found that the testimony by the participants to the manifestation were doubtful because they had participated in an unauthorised manifestation and also because they had used almost identic expressions in their description of the incident. By contrast, the guards’ testimony had been confirmed by the driver’s statements, the video recordings, and the fact that Major Ch. had a bite mark on his finger and bruises on his waist. The Investigations Committee concluded that the applicants had refused to comply with the lawful orders by the military guards of military unit no. 38984 and had showed active resistance. The guards had therefore lawfully used physical force and handcuffs against them.
The applicants challenged the refusal to open criminal proceedings before the Military Court of the Moscow Command. They complained, in particular, that they had not been shown the video recordings which had served as a basis for the decision of 18 February 2010.
On 23 September 2010 the Military Court of the Moscow Command rejected the applicants’ complaint, finding that the decision of 18 February 2010 had been lawful and justified. The investigator’s finding that the applicants had acted in a provocative manner and that the guards had lawfully used force against them had been based on witness statements and material evidence, such as video recordings also watched during the court hearing. There was no evidence that the injuries sustained by the applicants had been caused by the guards’ unlawful actions.
The applicants appealed. They submitted, in particular, that there was no evidence that the access to the area near the State Duma had been restricted in connection with a visit from a person under state protection. No restriction signs had been exhibited and the traffic of pedestrians in the area had not been limited in any way, as confirmed by the video recordings examined during the court hearing.
On 9 November 2010 the Military Section of the Supreme Court of Russia upheld the decision of 23 September 2010 on appeal.
COMPLAINT
The applicants complain under Article 13 of the Convention about their
ill-treatment by the military guards of military unit no. 38984 on 21 December 2009 and the lack of an effective investigation into the incident.
QUESTIONS TO THE PARTIES
1. The Government are requested to submit the video recordings of street watch cameras and State Duma internal watch cameras which served as a basis for the Moscow Investigations Committee’s decision of 18 February 2010.
2. The Government are requested to submit a copy of the decision ordering restriction of access to the area in the vicinity of the State Duma on 21 December 2009 in connection with a visit from a person under state protection. They are also requested to describe the restriction measures put in place and the way they were communicated to the passers-by.
3. Were the applicants subjected to torture or inhuman or degrading treatment, in breach of Article 3 of the Convention? In particular, was the use of force against them justified by the circumstances and was it proportionate to their alleged misconduct?
4. Was the investigation into the applicants’ allegations of ill-treatment thorough and effective? In particular, did the pre‑investigation inquiry under Articles 144-145 of the Code of Criminal Procedure of the Russian Federation provide for procedural guarantees and investigative methods capable of establishing the facts of the case and leading to the identification and punishment of those responsible? Did the domestic authorities’ refusal to bring criminal proceedings and, hence, to conduct a preliminary investigation according to Part VIII, Articles 150-226 of the Code of Criminal Procedure breach the State’s obligation to conduct an investigation in compliance with Article 3 (see Lyapin v. Russia, no. 46956/09,
§§ 133-137, 24 July 2014)?
5. 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?
Full & Egal Universal Law Academy