(Application no. 36220/02)
8 January 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Barabanshchikov v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Christos Rozakis, President,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 4 December 2008,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Applicant’s arrest and ill-treatment by the police
“The confession statement is handwritten by me; no moral or physical pressure [was] applied”.
The Government noted that the applicant had been advised of his right to the services of counsel prior to the entry of his guilty plea. However, he had expressly waived that right, making a handwritten entry to that effect in the interrogation record.
“On 9 August 2001, when [the applicant] was brought to the Lipetsk Town Prosecutor for an authorisation of his placement in custody, [he] complained that he had been beaten up by police officers. The police officers, who had arrested [the applicant], stated that during the arrest [the applicant] had lost consciousness twice.”
The investigator put several questions to an expert concerning possible injuries on the applicant’s body, their severity and nature.
“2.1 When examined: [there is] a bruise of a crimson and bluish colour in the projection of the 9-11 ribs on the left side, along the scapular line; [it is] moderately saturated, has a shape of a stripe [and] measures 4 centimetres in width and 7.5 centimetres in length. In the projection of the right edge of the right shoulder-blade [and] on the right side of the parietal region of the head [there are] abrasions having an elongated form, [which are] covered with dry and somewhat raising crusts and [which] measure 0.3 centimetres in width and 3.5 centimetres in length and 0.2 centimetres in width and 0.8 centimetres in length, respectively. No other injuries were discovered.
3.1. During the medical expert examination of [the applicant] the following injuries were discovered: a bruise on the left side of the lumbar region, abrasions on the right shoulder-blade and the right side of the parietal region of the head.
3.2. These injuries were caused as a result of traumas to the indicated body parts by a blunt firm object having a narrow, possibly elongated surface: cannot be considered as causing damage to health.
3.3. The type, character and intensity of those injuries allow the conclusion that they were caused within three to five days before the expert examination, thus not excluding the possibility that they were caused ... on 7 August 2001.
3.4. It is impossible to assess those injuries with a view to determining whether they were caused as a result of a fall or an impact (impacts) with a certain object, as the circumstances of the alleged “fall” are unknown.”
“1. Consultation of a urologist. Diagnosis: an injury to the right kidney. Treatment of this injury in the urological department for ten days. Subsequent supervision by a surgeon at the place of residence.
2. Consultation of an otolaryngologist. Diagnosis: two-sided adhesive otitis media, posttraumatic, deformation of the external nose and nasal septum deviation. The patient has suffered from those two conditions for a long time and [they] were not caused by a head injury received approximately a week ago.
3. Consultation of a neurosurgeon. Diagnosis: Posttraumatic asthenic syndrome. [The applicant] needs supervision by a neurologist at the place of residence...”
The report also indicated that the applicant had bruises to the ribs and the right side of the back.
B. Proceedings upon the applicant’s complaints about the ill-treatment
“On 8 October 2001 the prosecutor’s office of the Oktyabrskiy District of Lipetsk received documents... pertaining to the inquiry into [the applicant’s] complaints about the beatings by police officers on 7 August 2001.
During the interview [the applicant] refused to give explanations about the beatings in the lawyer’s absence. After [he] was told that the lawyer’s presence was not necessary in this case, [the applicant] again refused to provide any explanations and did not substantiate his refusal.
Therefore, it is impossible to establish the circumstances of the event.
On the basis of the abovementioned.... [the applicant’s] request for institution of criminal proceedings against the police officers is dismissed because there is no indication of a criminal offence.”
“While being questioned, [the applicant] explained that on 7 August 2001 he had been arrested... and brought to the Oktyabrskiy District police station in Lipetsk. At the police station he had been questioned by police officers, Mr S., Mr M. and Mr Ye. During the interrogation the police officers, Mr S. and Mr Ye., had beaten [the applicant], hitting him on the head, in particular on the ears and the back of the head, and on the right side of the back and kicking him in the groin. Mr M. had not taken part in the beatings. Following the beatings, [the applicant] had written a confession statement.
Mr S., who was questioned on the facts, stated that on 7 August 2001 he, together with Mr Ye. and Mr M., had talked to [the applicant] in an investigation room of the Oktyabrskiy District police station; [the applicant] had been arrested on suspicion of use of counterfeit notes. [The applicant] had voluntarily provided an explanation of the circumstances leading to his arrest. No moral or physical pressure had been applied to [the applicant]. After having talked to [the applicant], Mr S. and Mr Ye. had left, and Mr M. had stayed with [the applicant].
Mr Ye. gave identical statements.
Mr M. gave statements similar to those of Mr S. and Mr Ye., adding that after Mr S. and Mr Ye. had left the room, [the applicant] had been apprised of his [rights] guaranteed by Article 51 of the Russian Constitution and the circumstances mitigating the punishment had been explained to him. [The applicant] had expressed a wish to write a confession statement... pertaining to his crime: a sale of counterfeit US dollars.
During confrontation interviews in which [the applicant] participated... Mr S., Mr M. and Mr Ye. confirmed their statements.
As follows from expert report no. 785 issued on 13 August 2001, [the applicant] had a bruise to the left side of the back, abrasions to the right shoulder-blade and the right side of the head, which could not be considered as causing damage to [his] health.
As follows from statements by Mr P. and Mr A., police officers... from the Lipetsk Town Police Department, who had taken part in [the applicant’s] arrest on 7 August 2001, when [the applicant] had been brought to the Oktyabrskiy District police station, he had lost consciousness in the duty unit and had fallen from his own height on to the concrete floor. After he had regained consciousness, [the applicant] had explained that he had had a heart attack and had asked for medicines. They think that [the applicant] faked the fainting.
Mr Za., a police officer...from the Lipetsk Town Police Department, who had also taken part in [the applicant’s] arrest, gave identical statements.
During an examination of [the applicant] by an otolaryngologist... on 9 August 2001, no signs of an ear trauma were discovered.
There is entry no. 1110 made on 9 August 2001 in the registration log... of the temporary detention facility of the Lipetsk Town Police Department concerning [the applicant] in which he noted that “he had inflicted a slash wound to his own right forearm and a bruise to the left side of the body on 8 August 2001 in the Oktyabrskiy District police station. He had had no complaints about the state of his health.” That entry had been made by [the applicant]; [the fact] is corroborated by his signature.
In his statement made to the Oktyabrskiy District Prosecutor [the applicant] asked for an additional medical examination because he had sustained a kidney injury and had spent ten days – from 12 to 22 August 2001 – in the Lipetsk Regional Hospital undergoing treatment. Taking into account those circumstances, a forensic medical examination was performed with a view to determining the severity of the injuries sustained by [the applicant] and establishing a causal link between the sustained injuries and [the applicant’s] stay in the Lipetsk Regional Hospital where he had been diagnosed with “a kidney injury”.
As follows from report no. 7320 of the forensic medical examination issued on 7 December 2001, [the applicant’s] stay in the hospital for the treatment of an injury to the right kidney was not connected to [his] injury sustained on 7 August 2001, as the initial examination had not established bruises on the chest and back, although they had been recorded on admission to the Lipetsk Regional Hospital. Thus, it can be concluded that those injuries could have been sustained by [the applicant] after his examination by the medical expert on 9 August 2001.
Taking into account the above-mentioned, it should be concluded that during the inquiry [the investigator] did not obtain any objective data showing that the actions of the police officers contained elements of a criminal offence, and thus there are no grounds for quashing the decision of 19 October 2001 by which an institution of criminal proceedings was refused.”
C. Criminal proceedings against the applicant and examination of the ill-treatment complaint by the criminal courts
II. RELEVANT DOMESTIC LAW
Investigation of criminal offences
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Submissions by the parties
B. The Court’s assessment
(a) General principles
(b) Application of the above principles in the present case
i. Establishment of facts
ii. Assessment of the severity of ill-treatment
(c) Alleged inadequacy of the investigation
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 15,000 (fifteen thousand euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable on that amount;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 8 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis