European Court of Human Rights

 

 

THIRD SECTION

CASE OF DULATOV AND ASANOV v. RUSSIA

(Application no. 29057/08)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

16 March 2021

 

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

In the case of Dulatov and Asanov 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. 29057/08) 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 two Russian nationals, Mr Azat Mussalamovich Dulatov and Mr Ilmir Munirovich Asanov (“the applicants”), on 23 May 2008;

the decision to give notice to the Russian Government (“the Government”) of the complaints concerning the applicants’ alleged ill‑treatment by the police and the lack of an effective investigation into their complaints and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated in private on 16 February 2021,

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

INTRODUCTION

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

THE FACTS

2.  The applicants were born in 1959 and 1972 and live, respectively, in Ufa and Buzdyak, Republic of Bashkortostan. They were represented by Mr F.F. Ismagilov, a lawyer practising in Ufa.

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

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

I.        The applicants’ alleged ill-treatment by THE police

5.  On 28 February 2004 Mr Dulatov (“the first applicant”) and Mr Asanov (“the second applicant”) were interviewed by police officers from the Economic Crimes Unit of the Leninskiy district police department of Ufa in relation to the fraudulent withdrawal of cash from a bank account reported to the police by a bank. The police interviews were held without the applicants’ lawyers being present. In the applicants’ submission, police officers beat them up at the Leninskiy district police station in order to force them to confess to the above-mentioned offence, which they refused to do.

6.  The first applicant, together with Ms G.B. and another person, went to the police station between 10 a.m. and 11 a.m. that day at the request of the Economic Crimes Unit. According to the second applicant, at around 4 p.m. some police officers came to his place of residence and asked him to go to the police station. He agreed to their request and drove to the police station in his own car, accompanied by one of the police officers. This account of the circumstances in which the second applicant was apprehended is consistent with his subsequent complaints and statements. The keys to the car and its vehicle documentation were later returned to the second applicant’s mother, as confirmed by a document signed by an investigator of the Leninskiy district police department. According to the second applicant, on arriving at the police station he saw two women who later identified him as an offender during identification parades.

7.  At 4 p.m. on 28 February 2004 an investigator from the investigation unit of the Leninskiy district police department issued a decision on the bringing of criminal proceedings and the opening of an investigation on the charge of fraudulent withdrawal of cash from a bank account.

8.  Between 9 p.m. and 9.30 p.m. the second applicant was identified as a participant in the fraud by two witnesses. At 10.25 p.m. the investigator drew up a record of the second applicant’s arrest as a suspect, stating that he had been arrested at 10.25 p.m. on 28 February 2004 at the police station. There is no indication in the record that he had been arrested at the place of his residence earlier that day. The applicant was taken to the temporary detention facility (“the IVS”) of the Ufa police department. However, as he was visibly injured, instead of being immediately admitted to the IVS, he was first taken to town hospital no. 21 for treatment and certification of his injuries.

9.  At 11 p.m. the investigator drew up a record of the first applicant’s arrest, indicating that he had been arrested at 11 p.m. at the police station. The second applicant was placed in the IVS.

10.  On 1 March 2004 the Leninskiy District Court of Ufa extended the first applicant’s arrest by seventy-two hours and remanded the second applicant in custody. The applicants were represented at the hearings by State‑appointed lawyers.

11.  On 2 March 2004, during a confrontation with a witness in the presence of a lawyer of his own choosing, the first applicant complained of dizziness and pain in his left ear, left hand, right side of his chest and left leg. He stated that his injuries had been inflicted on 28 February 2004 by police officers at the Leninskiy district police department. That same day he lodged a complaint with the Leninskiy district prosecutor of Ufa. According to the conclusions of the first applicant’s forensic medical examination ordered by an investigator (following a request by the applicant’s chosen lawyer of 2 March 2004) and carried out on 4 March 2004, he had the following injuries: a bruise on the chest (2 cm by 2 cm); two bruises on the left shoulder (7 cm by 4 cm and 12 cm by 7.5 cm); and a stripe-shaped bruise on the left hip (14 cm by 4 cm). The injuries had been inflicted through the impact of blunt objects four or five days previously, possibly on 28 February 2004. The information concerning the applicant’s injuries was transferred to the Leninskiy district prosecutor’s office for an inquiry. On 4 March 2004 the Leninskiy District Court ordered the first applicant’s detention on remand. On 5 March 2004 he was placed in pre‑trial detention facility IZ 1/1. On his arrival he was examined by a medical assistant, who recorded bruises on his left shoulder and left hip.

12.  On 2 March 2004 the second applicant was transferred to detention facility IZ 1/1, where he was examined by a medical assistant on duty who recorded a number of injuries, namely multiple bruises on the soft tissue of the trunk, on both shoulders, his left hand and on both ears, as well as bruises around both eyes measuring “4 cm by 6 cm (3 cm by 5 cm)” and 5 cm by 10 cm. The second applicant stated that the injuries had been inflicted by police officers at the Leninskiy district police department on 28 February 2004. His complaint was forwarded for an inquiry to the Leninskiy district prosecutor’s office, with which he lodged a criminal complaint against the police officers and a request for a forensic medical examination.

13.  In a statement to the prosecutor of the Republic of Bashkortostan of 9 March 2004, Ms G.B., a witness in the fraud case, testified that on 28 February 2004 she had gone to the Leninskiy district police department with the first applicant. They had been interviewed there by police officers in different offices; she had heard the first applicant’s voice and the sound of someone being beaten up in the office next door. Later at the police station she had seen him “shaking all over” and dragging one leg, with his right ear bleeding and abrasions on his cheek.

14.  Another witness in the fraud case, stated that the second applicant had not had any injuries when she saw him at the Leninskiy district police department on 28 February 2004. She saw him again later that same day, during the identification parade. Her statements were recorded by the second applicant’s lawyer on 3 June 2004.

II.     The authorities’ response to the allegations of ill‑treatment by the police

15.  Investigators from the Leninskiy district prosecutor’s office of Ufa carried out a pre‑investigation inquiry and refused to bring criminal proceedings in response to the applicants’ complaints of ill-treatment by the police (decisions of 11 and 24 March 2004 in respect of the first applicant, and decision of 14 March 2004 in respect of the second applicant). They relied on explanations by two police officers from the Economic Crimes Unit of the Leninskiy district police department, who denied that the applicants had been ill-treated. The investigators concluded that there had been no instance of a crime in relation to the first applicant’s complaint, and that there were no elements of a crime under Article 302 § 2 of the Criminal Code (namely, using coercion by means of violence, humiliation or torture to obtain statements) in the conduct of the police officers in relation to the second applicant’s complaint. While no explanation was offered as to how the first applicant’s injuries had arisen, the second applicant’s injuries were explained by the lawful use of force during his arrest as a suspect at the place of his residence by the police officers. In their findings the investigators relied on the results of internal investigations conducted by the head of the Economic Crimes Unit of the Leninskiy district police department.

16.  According to the results of those internal investigations, it was established that the applicants had been involved in the fraud. Therefore, the first applicant had been asked to go to the Economic Crimes Unit in order for operational and investigative actions to be carried out. Police officers had driven to the place of the second applicant’s residence to arrest him and take him to the police station. It was established, on the basis of statements by those police officers, that they had lawfully used physical force against the second applicant during his arrest in response to his resistance and attempt to flee, during which he had fallen while on some stairs. The applicants had not been subjected to any violence or coercion at the police station.

17.  On 8 June 2004 the second applicant lodged an appeal with the Leninskiy District Court of Ufa against the refusal of 14 March 2004 to have criminal proceedings brought in response to his complaint. His appeal had not been examined, the reason being that, by a decision of 31 August 2004, the criminal case against him and his co‑accused had been transferred to a trial court and any complaints under Article 125 of the Code of Criminal Procedure could now only be examined in the course of the trial.

18.  In its judgment of 19 April 2007, following the trial of the applicants (who pleaded not guilty), the Leninskiy District Court stated that the applicants’ allegations of ill-treatment by the police during the preliminary investigation had been unconvincing. During the trial no information supporting those allegations had been submitted. Such information was also lacking in the case file. The applicants had been informed of their procedural rights during their examination at the preliminary investigation, which had been conducted in the presence of their lawyers. The court relied on statements at the trial that had been made by the investigator in the criminal case against the applicants, who stated that during the investigative actions no pressure had been exerted on the applicants by the police officers and that no beatings of the second applicant had occurred in the investigator’s presence.

19.  It follows from the summaries of witness statements given at the trial (and contained in the judgment of 19 April 2007) that a witness stated that she had identified the second applicant at the Leninskiy district police department, and that she had not noticed any injuries on him. Witness G.B. stated that police officers had exerted pressure on her. When being interviewed at the district police department, she had been told by the investigator that she would be considered an accomplice to the crime. She became afraid on hearing the first applicant’s voice from the office next door. Fearing that it would be “her turn” next, she had given statements (which had then been used against the first applicant) as she had been told to do.

20.  After the trial the second applicant lodged another court appeal against the refusal to bring criminal proceedings concerning his alleged ill‑treatment by the police. On 30 October 2007 the Leninskiy District Court informed him that his appeal would not be examined as the trial in the fraud case had been concluded.

21.  On 27 November 2007 the Supreme Court of the Republic of Bashkortostan, on an appeal by the applicants, upheld their conviction for fraud by the Leninskiy District Court in its judgment of 19 April 2007. It did not address the complaints about their alleged ill-treatment by the police, noting the absence of any significant breaches of the law on criminal procedure.

THE LAW

I.        ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

22.  The applicants complained that they had been victims of violence at the hands of the police and that there had been no effective investigation into their complaints. They 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.”

23.  The Government denied that there had been any violation of Article 3.

A.    Admissibility

24.  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

25.  The relevant general principles were reiterated by the Court’s Grand Chamber in Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-88, ECHR 2015). In particular, 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 version 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 (ibid., § 83).

26.  The Court observes that the following sequence of events on 28 February 2004 is not in dispute between the parties and is supported by evidence in the case file. The Economic Crimes Unit of the Leninskiy district police department established that the applicants had been involved in the fraud reported to the police by a bank. The applicants went to the police station at the request of the unit. The first applicant spent approximately twelve hours, and the second applicant six, in police custody. They were interviewed by the unit officers about their involvement in the offence without any legal assistance and without their arrests having been recorded. After being formally arrested, they were taken to the temporary detention facility. The second applicant, who had visible injuries to his face (bruising around both eyes, measuring approximately 3 to 4 cm by 5 to 6 cm and 5 cm by 10 cm) and bruises on both ears was not admitted to the detention facility but was taken instead to a local hospital first, to receive treatment and to have his injuries recorded. His injuries were also recorded in the pre-trial detention facility to which he was transferred three days later. The first applicant complained of feeling unwell and of being ill‑treated by the police officers as soon as he had access to a lawyer of his own choosing (three days after the alleged ill‑treatment); his lawyer requested that the first applicant be examined by a forensic medical expert.

27.  Having regard to the above circumstances, the medical evidence of the applicant’s injuries and witness accounts, which are consistent with the applicants’ allegations of violence suffered at the hands of the police officers on 28 February 2004, the Court finds the applicants’ allegations of police ill‑treatment to be credible.

28.  It is not disputed by the Government that, under Article 3 of the Convention, the authorities had an obligation to carry out an effective investigation into the applicants’ alleged ill-treatment by the police.

29.  The Court further observes that the applicants’ allegations about their injuries having been the result of ill-treatment by the police officers were dismissed by the investigating authority, essentially on the basis of the statements by those same police officers denying any wrongdoing, together with the results of the internal police investigation, which themselves were also based on those statements. No explanation whatsoever was offered regarding the first applicant’s injuries; as to the second applicant’s injuries, according to the police officers those injuries had been the result of the lawful use of force during his arrest at the place of his residence. No explanation was given for the discrepancy between that version and a number of elements supporting the second applicant’s account that he had arrived at the police station driving his own car and without injuries. Those elements included: the official record of his arrest; the certificate for returning the vehicle documentation and car keys to the second applicant’s mother; the witness statements attesting that he had been seen at the police station without any injuries or the fact that his multiple injuries, including on his face and ears, had not been reported immediately after his actual arrest; and the fact that he had not been provided with medical attention, instead being held in police custody for six hours and interviewed by police officers about his involvement in the crime (see paragraphs 6, 8, 12, 14 and 19 above). No details were provided as to what degree of force had allegedly been used against the second applicant by the police officers during his arrest and how he had received each of his multiple injuries, which had never been assessed by a forensic medical expert.

30.  The investigating authorities based their findings on the results of the pre-investigation inquiry, which is the initial stage in dealing with a criminal complaint under Russian law and which should normally be followed by the opening of a criminal case and the carrying-out of an investigation if the information gathered has disclosed elements of a criminal offence (see Lyapin v. Russia, no. 46956/09, § 129, 24 July 2014). The mere carrying-out of a pre-investigation inquiry under Article 144 of the Code of Criminal Procedure of the Russian Federation is insufficient if the authorities are to comply with the standards established under Article 3 of the Convention for an effective investigation into credible allegations of ill-treatment in police custody. It is incumbent on the authorities to institute criminal proceedings and to conduct a proper criminal investigation in which the whole range of investigative measures may be carried out, including confrontations, identification parades or the questioning of witnesses (ibid., §§ 132-37).

31.  No judicial review of the refusal to institute criminal proceedings and to open an investigation into the applicants’ alleged ill-treatment was carried out under Article 125 of the Code of Criminal Procedure. No thorough examination of the complaints about the police ill-treatment was made by the trial court, which merely stated that they were unconvincing and lacked evidence. In making that conclusion it relied on the statements by the investigator in charge of the criminal case against the applicants.

32.  In view of the foregoing, the Court finds that the authorities failed to carry out an effective investigation into the applicants’ credible allegations of police ill‑treatment, as required by Article 3 of the Convention.

33.  Given that the Government’s denial of the State’s responsibility for the applicants’ injuries was based on the results of the superficial domestic pre‑investigation inquiry, which fell short of the requirements of Article 3 of the Convention, the Court holds that the Government have failed to discharge their burden of proof and produce evidence capable of casting doubt on the applicants’ accounts of events, which it therefore finds established (see 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).

34.  The Court finds that the applicants were subjected to ill-treatment proscribed by Article 3 at the hands of the police.

35.  There has thus been a violation of Article 3 of the Convention under its substantive and procedural limbs.

II.     ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

36.  The applicants complained that they had no effective domestic remedies in relation to their ill-treatment by the police, as the authorities had failed to carry out an effective investigation into their complaints. They relied on Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

37.  The Government contested that argument.

38.  The Court notes that this complaint is linked to the issue raised under the procedural aspect of Article 3 of the Convention and must therefore likewise be declared admissible.

39.  Having regard to the finding of a violation of Article 3 under its procedural aspect on account of the respondent State’s failure to carry out an effective investigation, the Court considers that it is not necessary to examine this complaint separately under Article 13 of the Convention.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

40.  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.”

41.  The applicants claimed 20,000 euros (EUR) each in respect of non‑pecuniary damage. They also claimed 45,000 Russian roubles each in respect of costs and expenses related to their legal representation in the proceedings before the Court.

42.  The Government submitted that any award should be made in compliance with the Court’s case-law.

43.  The Court awards each applicant the amount claimed in respect of non-pecuniary damage, plus any tax that may be chargeable. It further awards each applicant EUR 590, plus any tax that may be chargeable to the applicants, in respect of costs and expenses.

44.  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 complaints concerning the applicants’ alleged ill-treatment by the police and the lack of an effective investigation into their complaints admissible;

2.      Holds that there has been a violation of Article 3 of the Convention under its substantive and procedural limbs;

3.      Holds that there is no need to examine separately the complaint under Article 13 of the Convention;

4.      Holds

(a)   that the respondent State is to pay, 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 20,000 (twenty thousand euros), plus any tax that may be chargeable, to each applicant, in respect of non-pecuniary damage;

(ii) EUR 590 (five hundred and ninety euros) to each applicant, plus any tax that may be chargeable to the applicants, 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.

Done in English, and notified in writing on 16 March 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova                                                                    Darian Pavli
Deputy Registrar                                                                       President