Communicated on 15 January 2015
FIRST SECTION
Application no. 53373/14
Aleksandr Alekseyevich ZHDAN
against Russia
lodged on 18 July 2014
STATEMENT OF FACTS
1. The applicant, Mr Aleksandr Alekseyevich Zhdan, is a Russian national, who was born in 1970 and lives in Orenburg. He is represented before the Court by the Committee against Torture, a non‑governmental organisation based in Nizhniy Novgorod.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
A. The applicant’s arrest and alleged ill-treatment
3. On 22 January 2009 at about 8.30 a.m. the applicant was approached by three men in plain clothes in the yard of his block of flats. Without any explanations they requested that he go with them to a police station. They took him to the operational-search unit of the Orenburg town police department (ОРЧ при УВД МО г. Оренбург). The applicant’s lawyer B. who arrived there after the applicant’s apprehension at the request of the applicant’s wife was not allowed to see the applicant. According to extracts from the police records submitted by the applicant, he was brought to the police station by police officer K. on 22 January 2009 at 9 a.m.
4. In an office on the first floor the applicant’s legs were tied to the legs of a chair with a car towing cable and his hands were attached to the chair by handcuffs. He was then subjected to electric shocks, through wires attached alternately to his face, neck, torso, hips, hands and genitalia, and suffocation, by use of a gas mask (blocking the access of air), in order to obtain his confession to a car theft. A black cap was put on his head in a gas mask so that he could not see anything. The applicant did not confess because he had not committed the crime. Then he was questioned about another car theft, being again subjected to electrocution, asphyxiation and beating.
5. The ill-treatment lasted for about eight or nine hours, during which the applicant remained attached to the chair, until he suffered a stroke. He developed a droop on the right side of his mouth and could not speak. He had weakness in his right arm and leg and was unable to walk. At 7.25 p.m. police officers of the operational-search unit A., S. and T. took him to hospital. They explained to the hospital staff that during his questioning, about an hour and a half ago, the applicant had “stopped talking” and his right limbs had “weakened”.
6. The applicant was placed in a resuscitation unit where he underwent treatment for seven days, followed by two months of subsequent in‑patient treatment. He never fully recovered from the stroke and acquired disability of the second degree.
B. The applicant’s medical records
7. According to extracts from the applicant’s hospital records no. 69, at the moment of his hospitalisation on 22 January 2009 the applicant could not speak and did not understand a speech addressed to him. His right limbs lost function. He had an abrasion on his right forearm and small areas of hyperemia on his left forearm. He received in-patient treatment at the Pirogov hospital in Orenburg until 2 March 2009.
8. According to the Orenburg Regional Forensic Medical Examination Bureau’s report no. 1481, when examined on 25 February 2009 at the Pirogov hospital, the applicant had two scars on each hand, two scars on the left hip and three pairs of similar scars on his back. The applicant explained to the expert that on 22 January 2009 police officers had tied his hands and legs and subjected him to electric shocks and asphyxiation by use of a gas mask. The expert offered two possibilities to explain the origin of the scars: the wounds could have been inflicted either by hard blunt objects with a limited contact surface or as a result of electric shocks, from a month to a month and a half before the examination. The abrasion on the applicant’s right forearm (see paragraph 7 above) had originated from an impact with a hard blunt object. The expert did not find it possible to establish the direct causal relation between the scars or the abrasion and the applicant’s stroke.
9. In her additional report no. 6825 of 19 September 2009 the expert reiterated her previous conclusions.
C. Criminal complaint concerning the applicant’s ill-treatment
1. Refusal to open a criminal case
10. On 29 January 2009 the applicant’s brother lodged a criminal complaint with the Orenburg town investigation division of the investigative committee at the Orenburg regional prosecutor’s office (следственный отдел по городу Оренбургу Следственного управления Следственного комитета при прокуратуре Российской Федерации по Оренбургской Области, “the town investigative committee”). He requested that police officers of the operational-search unit of the Orenburg town police department be prosecuted for the applicant’s ill-treatment.
11. During four years which followed investigators of the town investigative committee issued eleven refusals to open a criminal case into the applicant’s alleged ill‑treatment for lack of the elements of a crime under Articles 285, 286 or 301 of the Criminal Code in the acts of A., S., T., K., P., and other police officers, pursuant to Article 24 § 1 (2) of the Code of Criminal Procedure (“CCrP”). In doing so they relied on the results of their pre-investigation inquiry, notably the police officers’ explanations denying any wrongdoing, a record of the examination of the premises of the police station in March 2009 during which no device for administering electric shocks had been found, and the lack of certainty in the forensic medical expert’s conclusions.
12. According to explanations by police officers received during the pre‑investigation inquiry, on 22 January 2009 K., P. and S. had taken the applicant, who according to operative information had committed a car theft, to the police station for a “conversation”, which had then been held by them, A., T. and several other police officers. The applicant had been interviewed about the car theft continuously from 9 a.m. until he had suffered the stroke. He had given “explanations” concerning his involvement in the car theft. He was about to sign the “explanations” when he suffered the stroke.
13. All the decisions taken by investigators of the town investigative committee refusing to open a criminal case, including the last such decision of 9 April 2013, were revoked by the investigative committee’s hierarchy, some of them following the applicant’s successful court appeals (see paragraphs 14-16 below), on the ground that they had been based on an incomplete inquiry which had not properly established the relevant facts.
2. Judicial review of the investigators’ decisions under Article 125 of the CCrP
14. On several occasions the Leninskiy District Court of Orenburg examined the applicant’s appeals against the investigators’ decisions and found those decisions unlawful and unsubstantiated (decisions of 16 August 2010 and 11 November 2011). In its latter decision the District Court noted, inter alia, the investigator’s failure to give any assessment to the applicant’s injuries, his unlawful detention and the restriction of his right of access to a lawyer.
15. In its decision of 10 February 2012 the same court found the acts of staff of the town investigative committee in issuing refusals to open a criminal case – without a proper inquiry and any follow-up to previously identified flaws in the inquiry – and then revoking them during the period from 21 January 2009 to 10 February 2012 unlawful. The court held that as a result of that situation the applicant’s criminal complaint had not been examined within reasonable time and the decision whether to open a criminal case had been unlawfully delayed.
16. In 2013 the District Court delivered four decisions in which it found the inactivity of the head of the town investigative committee – in issuing refusals to open a criminal case into the applicant’s allegations of his ill‑treatment in police custody and failing to notify the applicant’s representatives of those refusals – unlawful (decisions of 24 January, 14 March, 24 June and 9 December 2013).
3. Institution of criminal proceedings
17. On 9 January 2014 the applicant’s representative lodged a criminal complaint against the head of the town investigative committee with the Orenburg regional investigative committee with regard to the lack of investigation into the applicant’s ill-treatment by police.
18. As no procedural decision had followed, on 12 March 2014 the applicant’s representative lodged a court appeal against the head of the regional investigative committee’s failure to act.
19. On 19 March 2014 an investigator of the town investigative committee opened a criminal case into the applicant’s alleged ill-treatment by police officers. He stated that it had been established that on 22 January 2009 at about 9 a.m. the applicant had been taken to the operational‑search unit of the Orenburg town police department on suspicion of having committed a car theft. On the same day police officers of that unit had brought the applicant to the Pirogov hospital with injuries, notably an abrasion on his right forearm and scars on his torso. The wounds could have been inflicted either as a result of contusion or electric shocks. According to the applicant, the injuries had been inflicted by the police officers. The investigator concluded that there were sufficient data disclosing elements of a crime under Article 286 § 3 (a) of the Criminal Code.
20. On 20 March 2014 the Leninskiy District Court examined the applicant’s appeal (see paragraph 18 above). It noted its four previous decisions (see paragraph 16 above) and the defendant authority’s persistent failure to enforce them, in particular its failure to enforce the decision of 9 December 2013 as no inquiry into the applicant’s ill-treatment had followed and the applicant and his representative had not received any information in that regard. In the District Court’s opinion such behaviour had disclosed a malicious non-enforcement of the court decisions by a State official; hence, the failure of the head of the regional investigative committee to conduct an inquiry and take a proper procedural decision was unlawful.
21. On 15 April 2014 the applicant was questioned as a victim. He recounted the events of 22 January 2009 and stated, inter alia, that he could identify two of the police officers who had taken him to the police station and participated in his questioning and ill-treatment.
22. As of the date of lodging his application with the Court the applicant was not informed of any progress in the investigation.
COMPLAINTS
23. The applicant complains under Article 3 of the Convention that he was tortured by the police officers on 22 January 2009 and that the State failed to conduct effective investigation into those events.
24. The applicant also complains under Article 13 of the Convention in conjunction with Article 3 that in the absence of the status of a victim he could not lodge a civil claim for damages.
QUESTIONS TO THE PARTIES
1. Having regard to:
(i) the injuries (the scars and abrasion) found on the applicant after his questioning in police custody from 9 a.m. until his admission to hospital at 7.25 p.m. on 22 January 2009 (see paragraphs 3, 5, 7-9, 12 and 19 in the Statement of facts),
(ii) the applicant’s allegation that he had been subjected to electric shocks and beating and the forensic medical expert’s conclusion that the scars could have been inflicted as a result of electric shocks and the abrasion as a result of contusion (see paragraphs 4 and 8 in the Statement of facts),
(iii) and the lack of any plausible explanation to the injuries by the State (see paragraphs 11, 19 and 22 in the Statement of facts),
has the applicant 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, §§ 122-123, 19 March 2009; Gladyshev v. Russia, no. 2807/04, § 57, 30 July 2009; Alchagin v. Russia, no. 20212/05, §§ 53‑54, 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. Having regard to:
(i) the procedural protection from torture and inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV),
(ii) the investigative committee’s refusal to open a criminal case into the applicant’s alleged ill-treatment during more than five years, while its eleven decisions refusing to open a criminal case were all quashed as based on the incomplete pre-investigation inquiry which did not properly establish the relevant facts and the misconduct of the head of the Orenburg town investigative committee was found by the domestic court to have disclosed malicious non‑enforcement of court decisions in which the investigative committee’s refusals to open a criminal case were found unlawful and unsubstantiated (see paragraphs 10-16 and 20 in the Statement of facts),
(iii) the investigative committee’s conclusion in its decision of 19 March 2014 that there were sufficient data disclosing elements of a crime under Article 286 § 3 (a) of the Criminal Code for the institution of criminal proceedings into the applicant’s alleged ill-treatment, while that data was at the investigative committee’s disposal shortly after the alleged ill‑treatment in 2009,
(iv) and the state of the preliminary investigation after the institution of the criminal proceedings,
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, §§ 125-140, 24 July 2014)?
3. Having regard to:
(i) the police officers’ statements (see paragraphs 5 and 12 in the Statement of facts) and the investigative committee’s decision of 19 March 2014, according to which on 22 January 2009 the applicant was taken to the operational-search unit of the Orenburg town police department, on suspicion of having committed a car theft, by police officers K., P. and S. and was interviewed there about his involvement in the car theft, by K., P., S., A., T. and several other police officers, continuously from 9 a.m. until he suffered a stroke shortly before his admission to hospital at 7.25 p.m.,
(ii) the police records, according to which the applicant was taken to the police station by K. on 22 January 2009 at 9 a.m. (see paragraph 3 in the Statement of facts),
(iii) and the fact that the authorities were sufficiently made aware by the applicant’s criminal complaint of the police conduct on 22 January 2009 which included taking the applicant to the police station and interviewing him about his suspected involvement in the car theft (see, in particular, the Leninskiy District Court’s decision of 11 November 2011 in paragraph 14 in the Statement of facts),
was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, did the deprivation of liberty on 22 January 2009 during the period between 9 a.m. and 7.25 p.m. fall within paragraph (c) of this provision?
4. What was the legal basis, if any, for the police officers to interview the applicant about his alleged involvement in the car theft?
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