European Court of Human Rights

 

 

THIRD SECTION

CASE OF KOZLOV v. RUSSIA

(Application no. 56552/09)

 

 

 

 

JUDGMENT

STRASBOURG

1 December 2020

 

 

 

 

 

 

 

This judgment is final but it may be subject to editorial revision.

 

In the case of Kozlov v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

          Darian Pavli, President,
          Dmitry Dedov,
          Peeter Roosma, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 56552/09) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Oleg Aleksandrovich Kozlov (“the applicant”), on 17 November 2008;

the decision to give notice of the application to the Russian Government (“the Government”);

the parties’ observations;

Having deliberated in private on 3 November 2020,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.  The application concerns the applicant’s alleged ill-treatment by police and the lack of an effective investigation into his complaints.

THE FACTS

2.  The applicant was born in 1972 and lives in Ulyanovsk. He was represented by Ms Ye. Fetisova, a lawyer practising in Ulyanovsk.

3.  The Government were represented by Mr G. Matyushkin, Representative of the Russian Government to the European Court of Human Rights, and subsequently by Mr M. Galperin, his successor in that office.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.

I. The applicant’s arrest and alleged ill-treatment

5.  At around 2 p.m. on 15 February 2004 the applicant was apprehended in his parents’ apartment, in their presence, by police officers of the Zheleznodorozhnyy district police department of Ulyanovsk. He was taken to the police station.

6.  The applicant submitted the following account of events at the police station. At around 5 p.m. he was taken to an office, where three police officers physically assaulted him by beating him and stifling his breathing with a gas mask (противогаз). They demanded that he confess to the murder of Ms L. An investigator in the murder case, V.L., from the Zheleznodorozhnyy district prosecutor’s office, and the head of a unit at the Zheleznodorozhnyy district police department, A.T., were allegedly in the office next door and witnessed the applicant’s ill-treatment. V.L. allegedly went to the office in which the applicant was being tortured and told him that he would not have suffered had he confessed. The applicant denied committing the murder.

7.  From 7 p.m. to 7.40 p.m. V.L. questioned the applicant as a witness in the murder case.

8.  According to police records, from 8.20 p.m. to 9.05 a.m. the following day the applicant was detained at the police station for the administrative offence of petty hooliganism.

9.  According to the applicant’s father, on 16 February 2004 he saw the applicant at the police station. The applicant had sustained several injuries. The father hired a lawyer, who insisted on the applicant undergoing a forensic medical examination, which was ordered by V.L.

10.  On the same day the police officer S.R. took the applicant to the Ulyanovsk regional forensic medical bureau, where he was examined by a forensic medical expert. According to the expert’s report, the applicant explained that at about 6 p.m. or 7 p.m. on 15 February 2004, at the Zheleznodorozhnyy police station, three unknown persons in civilian clothing had punched and kicked him all over his body. He stated that prior to the incident he had not suffered any kind of physical assault or been involved in any fighting. He complained of a headache and of pain in his forehead, upper jaw and lips, as well as on both sides of his body.

11.  The forensic medical expert reported the following injuries on the applicant: (i) a cut on the left side of the forehead; (ii) a scratch on the upper lip; (iii) a haemorrhage under the skin measuring 7 cm by 4 cm behind the left ear; (iv) an abrasion on the outside part of the left ear; (v) a bruise on the corner of the right eye; (vi) bruises on both lips; (vii) two bruises on the right upper forearm; (viii) two bruises on the chest; and (ix) various bruises on the upper and lower parts of the back.

12.  The expert concluded that the applicant’s injuries had been caused by the impact of a hard, blunt object, between one and three days before the examination. Replying to a question from the investigator as to whether the injuries could have been received on the night of 13 to 14 February 2004, when L. had been murdered, the expert stated that that possibility could not be excluded.

13.  According to the expert’s report, the forensic medical examination commenced at 11.20 a.m. on 16 February 2004 and was concluded on 18 February 2004.

14.  According to the official records in the murder case, at 6.45 p.m. on 16 February 2004 the applicant was arrested as a suspect and at 7.05 p.m. he was questioned. He refused to give statements.

15.  On 2 September 2004 the Zheleznodorozhnyy District Court of Ulyanovsk convicted the applicant of murder and other crimes and sentenced him to eleven years’ imprisonment. On 20 October 2004 the Ulyanovsk Regional Court upheld the judgment on appeal. There is no indication in the judgment that on the night of 13 to 14 February 2004 the applicant had been involved in a violent fight with the victim (L.), of whose murder he was convicted.

II. decisions of the Authorities in relation to the applicant’s complaints

16.  On 17 February 2004 the applicant’s complaint of alleged ill‑treatment by the police officers was lodged with the Zheleznodorozhnyy district prosecutor’s office of Ulyanovsk. Other similar complaints were lodged later by the applicant and his father. The applicant alleged that the violence he had suffered included being subjected to stifling with a gas mask and having a burning cigarette pressed onto his hand. The applicant stated that one of the police officers who had tortured him was Officer S.R. He alleged that S.R. had spoken to the forensic medical expert, who in turn had not recorded all the injuries.

A.     Refusals to institute criminal proceedings

17.  Investigators from the Zheleznodorozhnyy district prosecutor’s office, and later the Zheleznodorozhnyy inter-district investigation unit of the investigative committee at the Ulyanovsk regional prosecutor’s office, carried out a pre-investigation inquiry and, under Article 24 § 1 (1) of the Code of Criminal Procedure (“the CCrP”), issued a number of refusals to open a criminal case and carry out an investigation into the applicant’s alleged ill-treatment. They referred (in particular with regard to the refusals dated 21 September 2006, 8 December 2006 and 8 October 2007) to the absence of any evidence of a crime under Article 286 of the Criminal Code. Those refusals were revoked by the investigating authority and an additional pre-investigation inquiry was ordered on each occasion, most recently on 8 April 2011.

B.     Institution of criminal proceedings

18.  On 16 May 2011 the investigation unit of the investigative committee for the Zheleznodorozhnyy district of Ulyanovsk (“the Zheleznodorozhnyy district investigation unit” or “the investigation unit”) opened a criminal case under Article 286 § 3 (a) of the Criminal Code (“abuse of power” - see paragraph 48 below). On 5 July 2011 the applicant was granted victim status and questioned.

19.  On 9 March 2012 a reconstruction of the alleged crime was carried out during which the applicant described the violence he had allegedly suffered at the hands of the police officers on 15 February 2004. He stated, in particular, that he had been kicked while lying on the floor. He had been punched, the fingers on his right hand had been bent back, and his breathing had been stifled by having a gas mask placed over his head, cutting off his access to air for two to three minutes. The stifling had been carried out five or six times. When he had tried pretending to lose consciousness, one of the officers had twice pressed a burning cigarette onto his right hand. The officers had demanded his confession to the murder of L.

20.  On 10 March 2012 the applicant was questioned as a victim.

21.  During identification parades, the applicant identified two police officers, S.R. and A.N., as the perpetrators of the violence he had suffered.

22.  On 2 April 2012, following an order issued by D.Kh., one of the investigators from the Zheleznodorozhnyy district investigation unit, a commission of forensic medical experts from the Ulyanovsk regional forensic medical bureau examined the previous forensic medical documentation in the applicant’s case and issued a report answering the investigator’s questions. They stated that the number of alleged traumatic impacts was much higher than the number of injuries recorded, and that the applicant had no recorded injuries consistent with his allegations of having his fingers bent back, having a burning cigarette pressed onto his hand or being stifled. It followed from the injuries recorded that the applicant had received no less than fifteen blows from a hard, blunt object (for example, someone’s fist), including at least five blows to the head. The injuries had been inflicted between one and three days before the applicant’s examination by the forensic medical expert on 16 February 2004, that is between 13 and 15 February. It was impossible to establish the precise time when the injuries had been sustained. The experts further stated that the injuries to the head had been received more than twenty-four hours before the applicant’s examination by the expert on 16 February 2004; therefore, they could have been received on the night of 13 to 14 February and not on 15 February. The remaining injuries could have been inflicted on the night of 13 to 14 February or on 15 February.

C.     Decision to suspend the investigation and subsequent court review

23.  On 5 April 2012 D.Kh. suspended the preliminary investigation in the case for failure to identify the possible perpetrators.

24.  On 17 September 2012 the deputy head of the investigation unit dismissed the applicant’s complaint, stating that the investigator’s decision had been lawful and based on a comprehensive investigation.

25.  The applicant lodged an appeal under Article 125 of the CCrP.

26.  On 19 August 2013 the Zheleznodorozhnyy District Court of Ulyanovsk upheld the applicant’s appeal, finding the investigator’s decision of 5 April 2012 unsubstantiated and unlawful. In particular, the court noted that the applicant had identified S.R. and A.N. as two of the police officers who had physically assaulted him. The investigator had not looked into this fact and had not substantiated his conclusion that it had been impossible to identify the persons who had applied unlawful investigative measures in relation to the applicant. On 9 December 2013 the Ulyanovsk Regional Court upheld that decision in an appeal lodged by S.R. and A.N.

27.  The applicant lodged a civil action claiming compensation in respect of non-pecuniary damage in relation to the delayed investigation into his complaints of police abuse. On 10 December 2013 the Zheleznodorozhnyy District Court dismissed his claim on the grounds, inter alia, that the applicant had failed to prove D.Kh.’s guilt or a cause-and-effect relationship between the latter’s inaction and any suffering sustained by the applicant.

D.     Decision to terminate the criminal proceedings against the police officers and to suspend the investigation

28.  On 20 April 2012, under Article 24 § 1 (2) of the CCrP, D.Kh. terminated the criminal proceedings in relation to Officers S.R., A.N. and S.Zh. for lack of the constituent elements of the crime in their actions; D.Kh. also suspended the preliminary investigation into the case for failure to identify any officials who might have been responsible for the applicant’s ill-treatment. The investigator’s decision described, inter alia, the following investigative measures which had been carried out in the case.

29.  The applicant identified, among others, A.T., the head of the criminal search unit of the Zheleznodorozhnyy district police department, who on several occasions had allegedly gone to the room where the applicant had been tortured and told him to confess to the murder of L. The applicant was “confident” in identifying A.T. and Officer S.R. (the latter as one of the perpetrators of the violent actions against him), and confirmed his statements during confrontations with them. During an identification parade, the applicant did not identify officer S.Zh. Later, however, the applicant stated during a confrontation that S.Zh. had also participated in his ill-treatment.

30.  The forensic medical expert who had carried out the examination of the applicant on 16 February 2004 stated that the applicant had been examined in the presence of Officer S.R.

31.  According to statements by the applicant’s parents, the applicant had had no injuries when he was apprehended in their apartment.

32.  V.L. stated that in February 2004, as an investigator in charge of the case concerning L.’s murder, he had checked to see who L.’s acquaintances were. On 15 February 2004 the applicant had been taken to the Zheleznodorozhnyy district police station for questioning. In the course of his questioning, the applicant had displayed injuries on his face which were minor and barely noticeable and which he said he had received during a brawl with unknown people the day before.

E.     Decisions to resume and suspend the investigation, subsequent court review, and annulment by the prosecutor

1.    Investigator’s decisions

33.  On 27 December 2013 D.Kh., of the Zheleznodorozhnyy district investigation unit, ordered that the preliminary investigation be resumed and a request for its extension until 27 January 2014 be submitted to the deputy head of the investigation unit. The request was granted on the same day.

34.  Also on 27 December, D.Kh. issued another decision, suspending the investigation owing to a failure to identify the possible perpetrators. He stated that it had been necessary to institute the criminal proceedings in order to carry out a proper investigation into the applicant’s allegations of police ill-treatment, thus allowing identification parades, confrontations, searches, seizures and expert examinations to be conducted which would not have been possible in a pre-investigation inquiry. Those various measures had been duly carried out.

35.  D.Kh. ruled out the possibility that the applicant’s injuries had been caused as a result of the alleged ill-treatment.

36.  The investigator concluded that all the investigative measures that had been possible in the absence of a suspect or accused had been carried out. However, it had not been possible either to refute entirely the applicant’s allegations that he had been subjected to prohibited investigative methods, or to identify the person or persons who may have inflicted injuries on him.

2.    Judicial review

37.  The applicant lodged an appeal under Article 125 of the CCrP against the decision of 27 December 2013 to suspend the investigation. He complained of the inaction of D.Kh., as the investigator, and of the head of the investigation unit, deploring, inter alia, the fact that the police officers S.R. and A.N. had not been charged. A representative of the investigation unit and some assistant prosecutors of the Zheleznodorozhnyy district prosecutor’s office submitted their objections.

38.  On 19 June 2014 the Zheleznodorozhnyy District Court dismissed the applicant’s complaint and fully endorsed the investigator’s decision, stating that all the investigative measures that had been possible in the absence of a suspect or an accused had been carried out.

39.  On 11 August 2014 the Ulyanovsk Regional Court upheld that decision on appeal, stating that it was duly reasoned and lawful. The fact that the applicant had identified the police officers S.R. and A.N. as having allegedly physically assaulted him was considered to be insufficient evidence to open criminal proceedings against them. The allegations had not been confirmed by other evidence. However, the court found it established that the applicant had sustained injuries. The investigator had therefore been right in suspending the criminal proceedings concerning the alleged abuse of authority and not terminating them.

3.    Annulment by the prosecutor

40.  On 14 November 2014 a deputy prosecutor of the Ulyanovsk region annulled the decision to suspend the investigation and ordered an additional investigation.

F.      Refusal to institute criminal proceedings against the police officers and reclassification of the crime

41.  On 9 December 2014 K.L., an investigator of the Zheleznodorozhnyy district investigation unit, refused to institute criminal proceedings against, in particular, the police officers S.R., A.N. and S.Zh. The investigator held that the applicant’s injuries could clearly have been sustained before his arrest and that his allegations of police ill-treatment had been false.

42.  On the same date the investigator concluded that there was no evidence of a crime under Article 286 of the Criminal Code and reclassified the criminal acts committed against the applicant during the period from 13 to 15 February 2004 from abuse of power (Article 286 § 3 (a) of the Criminal Code) to battery (Article 116 § 1 - see paragraph 45 below).

III. Other information

43.  The applicant referred to an incident of ill-treatment which had allegedly taken place in November 2004 at the same police station, involving another person. According to the applicant, Officer S.R. and one of his colleagues had tortured that other person in their office in the same manner in which they had tortured the applicant. In April 2005 Officer S.R. and his colleague were convicted of abuse of power. During the investigation of that case, the prosecutor’s office found gas masks in S.R.’s office. The case was reported on in a local newspaper.

RELEVANT LEGAL FRAMEWORK

44.  Article 286 § 3 (a) of the Criminal Code, as in force at the material time, provided that actions undertaken by a public official which clearly exceeded his or her authority and entailed a substantial violation of an individual’s rights and lawful interests, committed with violence or the threat of violence, were punishable by three to ten years’ imprisonment, together with a ban on occupying certain posts or engaging in certain activities for a period of up to three years.

45.  Battery (побои) was a form of assault causing physical pain without resulting in actual bodily harm. It was punishable by a fine, community work or up to three months’ detention (Article 116 § 1 of the Criminal Code, as in force at the material time). The decision to initiate prosecution of the offence was at the personal discretion of the victim. The perpetrator of the offence had to be a physical person of sound mind aged 16 or over.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

46.  The applicant complained that he had been subjected to torture by police officers and that no effective investigation had been conducted into his allegations. He relied on Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

47.  The Government denied a violation of Article 3 under its substantive head, relying on the results of the investigation into the applicant’s complaints. As regards the procedural obligation under Article 3, they acknowledged that it had taken the authorities too long to institute criminal proceedings concerning the applicant’s alleged ill-treatment and to carry out the necessary investigative measures.

A.  Admissibility

48.  The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.  Merits

1.    Procedural obligation

49.  The Court reiterates that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. Such investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000‑IV).

50.  The Court observes that after spending time in police custody, the applicant was found to have injuries certified by a forensic medical expert (see paragraphs 5-12 above). The Government did not dispute that the applicant had made a credible assertion of police ill-treatment giving rise to the State’s obligation to carry out an effective investigation.

51.  It took the authorities seven years and three months to open a criminal case (on 16 May 2011, after repeated refusals) and to start an investigation into the applicant’s allegations (see paragraphs 17-18 above). The Government acknowledged that such a delay was excessive.

52.  After carrying out a number of investigative measures during which the applicant was still able to identify the police officers who had ill-treated him on 15 February 2004, the investigating authorities suspended the investigation on 5 April 2012 for failure to identify the possible perpetrators. That decision was found to be unlawful and unfounded by the courts (the decision of 19 August 2013 was upheld on appeal on 9 December 2013 - see paragraph 26 above). On 27 December 2013 the investigation was suspended again for the same reason, without any new investigative measures being carried out. This time, despite the lack of any change in the basis for the investigator’s decision, the domestic courts fully endorsed it and dismissed the applicant’s appeal (see paragraphs 37-39 above).

53.  In parallel to the suspension of the investigation for failure to identify the possible perpetrators, the investigator terminated the criminal proceedings against Officers S.R. and A.N. (whom the applicant had identified as his torturers) and Officer S.Zh. (whom the applicant had identified during the confrontation with him as the third participant in his ill-treatment, after failing to identify him previously during the identity parade - see paragraph 29 above) for lack of the constituent elements of the crime in their actions (see paragraph 28 above). The investigating authority most recently refused to institute criminal proceedings against those police officers, finding that the applicant’s injuries could clearly have been received before his arrest and dismissing the applicant’s allegations as false (see paragraph 41 above). It also held that there was no evidence of the crime of abuse of authority and reclassified the criminal acts committed against the applicant from abuse of authority under Article 286 of the Criminal Code to the minor private-prosecution offence of battery, committed by a private person as opposed to a State official (see paragraphs 42 and 45 above).

54.  In so doing, the investigating authority reverted to the situation that had prevailed during the initial period of seven years and three months following the alleged ill-treatment, when it had refused to open a criminal case and carry out an investigation, citing the lack of evidence of the crime of abuse of authority (see paragraph 17 above). This contradicted its previous conclusion that it was not possible “to refute entirely the applicant’s allegations that he had been subjected to prohibited investigative methods” (see paragraph 36 above), as well as the court’s finding that there had been no reason to terminate the criminal proceedings concerning the alleged abuse of authority (see paragraph 39 above).

55.  The Court finds that by delaying the opening of the criminal investigation and suspending it without a thorough, objective and impartial analysis of all relevant elements, while ignoring the evidence in support of the applicant’s allegations and giving undue weight to the denial of the crime by law-enforcement agents including the alleged perpetrators, the authorities did not take all reasonable steps available to them to secure the evidence and did not make a serious attempt to find out what had happened. They thereby failed in their obligation to conduct an effective investigation into the applicant’s credible allegations of ill‑treatment in police custody (see Lyapin v. Russia, no. 46956/09, §§ 128-40, 24 July 2014, and Razzakov v. Russia, no. 57519/09, §§ 63-64, 5 February 2015).

56.  Accordingly, there has been a violation of Article 3 of the Convention under its procedural head.

2.    Substantive obligation

57.  The Court reiterates that where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of individuals within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. The burden of proof is then on the Government to provide a satisfactory and convincing explanation by producing evidence establishing facts which cast doubt on the account of events given by the victim. In the absence of such an explanation, the Court can draw inferences which may be unfavourable for the Government. That is justified by the fact that those in custody are in a vulnerable position and the authorities are under a duty to protect them (see Bouyid v. Belgium [GC], no. 23380/09, § 83, ECHR 2015).

58.  The Government’s denial of the State’s responsibility for the applicant’s injuries was based on the findings of the investigation, which the Court has found to fall short of the requirements of Article 3 of the Convention. Accordingly, the Court finds that the Government failed to discharge their burden of proof and produce evidence capable of casting doubt on the applicant’s account of events, which it therefore finds established (see, mutatis mutandis, Olisov and Others v. Russia, nos. 10825/09 and 2 others, §§ 83-85, 2 May 2017, and Ksenz and Others v. Russia, nos. 45044/06 and 5 others, §§ 102-04, 12 December 2017).

59.  As regards the characterisation of the applicant’s treatment, the Court observes that the applicant suffered various acts of physical violence, including punching, kicking and stifling. That treatment caused him actual bodily injuries and intense physical and mental suffering. The applicant was intentionally subjected to the treatment described above with the aim of extracting self-incriminating statements from him.

60.  The Court finds that the treatment to which the applicant was subjected at the hands of the police amounted to torture (see Gäfgen v. Germany [GC], no. 22978/05, § 90, ECHR 2010).

61.  Accordingly, there has been a violation of Article 3 of the Convention under its substantive limb.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

62.  Article 41 of the Convention provides:

“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.”

63.  The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage. He also claimed 33,179 Russian roubles (RUB) in respect of legal costs in the domestic proceedings and postal expenses in the proceedings before the Court.

64.  The Government stated that any decision should be made in accordance with the Convention case-law.

65.  Having regard to the violations found, the Court awards the applicant EUR 30,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

66.  The Court further reiterates that according to its case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award EUR 481 covering the applicant’s legal costs in the domestic proceedings concerning his alleged ill-treatment and postal expenses in the proceedings before the Court, plus any tax that may be chargeable to the applicant.

67.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the application admissible;

2.      Holds that there has been a violation of Article 3 of the Convention under its procedural limb in that no effective investigation was carried out into the applicant’s credible allegations of ill-treatment by the police;

3.      Holds that there has been a violation of Article 3 of the Convention under its substantive limb in that the applicant was subjected to torture by the police;

4.      Holds

(a)   that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 30,000 (thirty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 481 (four hundred and eighty-one euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 1 December 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova                                                                    Darian Pavli
 Deputy Registrar                                                                       President