First section Application no. 47913/07 by Elvira Andreyevna KISLITSINA against Russia

8 December 2010

FIRST SECTION

Application no. 47913/07
by Elvira Andreyevna KISLITSINA
against Russia
lodged on 30 July 2007

STATEMENT OF FACTS

THE FACTS

The applicant, Ms Elvira Andreyevna Kislitsina, is a Russian national who was born in 1962 and lives in the village of Sernur, the Republic of Mariy El. She is represented before the Court by Ms O.A. Sadovskaya, a lawyer practising in Nizhniy Novgorod.

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

A.  Events between 3 and 9 March 2005

On 3 March 2005 the applicant’s son – Artem Kislitsin, born in 1990 – and his two friends, B., born in 1990, and R., born in 1989, were taken to a police station and interviewed in connection with a theft of rabbits from two other residents of Sernur committed some time earlier. None of the boys’ parents or any other adults representing their interests were present during those interviews. It appears that the boys confessed to the theft, and that thereafter the police officers went to Artem Kislitsin’s domicile, searched it and found and seized two stolen rabbits.

The applicant was not at home at that time but she relies on the statement of her other son D. – Artem’s older brother – to the effect that upon his return from the police station Artem said to him that he had been punched in the solar plexus by police officers who had forced him to confess to the theft. She also submits that the police officers intimidated Artem by threatening him that he would be imprisoned for the theft.

On 5 March 2005 criminal proceedings were brought in connection with the theft. It appears that the three boys were summoned for questioning on 9 March 2005 in the context of those proceedings.

In the night of 8 to 9 March 2005 Artem Kislitsin, B. and R. committed suicide by hanging themselves. The applicant’s son and R. left suicide notes. They were found dead in the early morning of 9 March 2005.

According to the applicant, when she and her husband went to the morgue to recover Artem’s body, they noticed blue stains on his right shoulder, back and armpits and an abrasion on his right elbow. The applicant’s husband enquired of a medical officer in the morgues about the origin of the stains, and the officer replied that it was post-mortem lividity. In the applicant’s submission, no forensic medical examination had been carried out.

Subsequently the criminal proceedings in connection with the theft were discontinued owing to the deaths of the suspects.

B.  Investigation into the death of the applicant’s son

On 10 March 2005 the prosecutor’s office of the Sernur District of the Republic of Mariy El (“the district prosecutor’s office”) instituted criminal proceedings into the deaths of the applicant’s son, B. and R. under Article 110 of the Russian Criminal Code (incitement to suicide), stating that as the deceased were all minors and in view of the multiple nature of the suicide there were grounds to believe that they had been incited to commit suicide by an unidentified person. The case file was given the number 15022.

On the same date the applicant was declared a victim in the above-mentioned case.

On 20 April 2005 the investigator in charge ordered a comprehensive forensic psychological and psychiatric expert examination of the applicant’s son. The experts were requested to answer the following questions:

“1.  Did [the applicant’s son] suffer from any mental disorder when he was alive?

2.  Was [the applicant’s son’s] mental state predisposed to suicide in the period prior to his death? What could provoke such a state? If not, what was [the applicant’s son’s] mental state in the period prior to his suicide?

3.  When he was alive, was [the applicant’s son] by his mental state inclined to suicide?

4.  Could the police officers’ actions, namely taking [the applicant’s son] to the police station and interviewing him there, searching [his home] and seizing [the stolen objects], and carrying out investigative actions in the absence of parents or any other adult family members, provoke a mental state that led to the suicide?”

In a report of 2 June 2005 the experts established that Artem Kislitsin had not suffered from any mental disorder during his lifetime. They further indicated that in the period prior to his death the applicant’s son had found himself in a stressful situation, which had developed because he had been exposed as a person involved in a theft, and that, as a consequence, he had been predisposed to suicide; however, it was impossible to establish how his mental state had been evolving during that period, particularly in the last days before his death. The experts also noted that, since the main incentive for Artem Kislitsin’s suicide was the situation of him having been a suspect in a theft case, then all actions of the police officers, including taking him to the police station; interviewing him; searching his home; seizing the stolen rabbits and carrying out investigative actions in the absence of parents or any other adult family members, had influenced, to a certain extent, his decision to commit suicide. However, according to the experts, it could not be said that the police officers’ actions were the only reason that had provoked Artem Kislitsin’s decision to hang himself. According to the report, it was thus possible to conclude that the police officers’ actions contributed to developing Artem Kislitsin’s mental state leading to his suicide, but that those actions could not be regarded as the only reason that influenced him in taking that decision.

On 1 August 2005 the investigator in charge granted the applicant’s request to allow her access to his order of 20 April 2005 and the expert report of 2 June 2005.

By a decision of 10 September 2005 the investigator in charge discontinued the proceedings in case no. 15022. The decision stated that it was clear from the suicide notes of the applicant’s son and R. that one of the incentives that provoked the decision by the applicant’s son, B. and R. to commit suicide was the fact that the district law-enforcement bodies had become aware of their involvement in a theft and had carried out a number of investigative actions in that connection. The decision went on to note that the police officers, who had taken investigative steps with respect to the three boys, had stated that they had not supposed and could not have supposed that the said investigative measures might incite the applicant’s son, B. and R. to commit suicide, as they had never expressed any such ideas, their conduct had been appropriate and the investigative actions in their respect had been carried out in the usual way, without any incidents, and therefore there had been no grounds to suggest that the three boys might hang themselves. The decision noted that the police officers’ statements had been supported by oral evidence given by a number of witnesses, including teachers, classmates, friends and relatives of Artem Kislitsin, B. and R., to the effect that the three had never expressed the intention to commit suicide, in particular, because of the fact that the law-enforcement bodies had exposed them as involved in a theft. The decision also mentioned that, according to the results of comprehensive forensic psychological and psychiatric expert examinations carried out in the case, the applicant’s son, B. and R. had been predisposed to suicide and the actions of the police officers had not been the sole reason for that decision. It had also been established that in the period between 4 and 9 March 2005 none of the police officers had talked to any of the three boys, and therefore they could not have provoked the boys to take a decision to commit suicide.

The decision further relied on evidence obtained during the investigation to the effect that the applicant’s son, B. and R. had not had any intent to commit suicide until the night of 8 to 9 March 2005, and that initially they had only intended to leave their place of residence and to move outside the territory of the Sernur District in an attempt to avoid criminal liability for the theft. In support of this assumption, the decision referred to statements of witnesses who had seen Artem Kislitsin and two other boys cycling away from their home village (despite the bad weather and the snow), and to statements of their relatives who had found bags with the boys’ clothes after their deaths. The decision also relied on the suicide notes of R. and the applicant’s son, which indicated that the former had only intended to leave the village of Sernur, asking his relatives “not to search for him” and stating that he “would take some clothes and a bicycle”, whereas Artem Kislitsin – a leader in the group – had already taken the decision to commit suicide by the time when he left his home, stating in his note that “it was not his destiny to live long” and that he “would watch [his relatives] from the sky”. According to the decision, one of the incentives for the boys’ suicide was their realisation of the fact that criminal liability for the theft was inevitable.

The decision thus concluded that it was clear that the applicant’s son, B. and R. had taken a decision to commit suicide of their own motion without being influenced by any third persons, and therefore the criminal proceedings should be discontinued as there was no evidence of a crime.

It appears that the decision of 10 September 2005 was set aside by a supervising prosecutor on 28 September 2005.

By a decision of 30 September 2005, similar to that of 10 September 2005, the district prosecutor’s office ordered that the criminal proceedings in case no. 15022 be discontinued.

The applicant challenged the decision of 30 September 2005 in court.

On 26 February 2006 the Sernur District Court of the Republic of Mariy El (“the District Court”) set aside the said decision and ordered the district prosecutor’s office to remedy a number of formal shortcomings in that decision, without carrying out any additional investigation.

The applicant appealed against the District Court’s decision.

On 5 April 2006 the Supreme Court of the Republic of Mariy El (“the Republican Supreme Court”) quashed the decision of 26 February 2006 and ordered a fresh examination of the applicant’s complaint.

On 19 April 2006 the District Court declined to examine the applicant’s complaint against the decision of 30 September 2005, noting that, by that time, it had already been quashed and that on 3 March 2006 the district prosecutor’s office had taken a new decision to discontinue criminal proceedings in case no. 15022.

On 4 June 2007 the District Court, upon a complaint by the applicant, quashed the decision of the district prosecutor’s office dated 3 March 2006.

On 26 July 2007 the district prosecutor’s office ordered that the criminal proceedings in case no. 15022 be resumed.

By a decision of 17 August 2007 the district prosecutor’s office discontinued the criminal proceedings in connection with the deaths of the applicant’s son, B. and R. The decision was similar to those of 10 and 30 September 2005.

On 22 October 2007 the District Court dismissed a complaint by the applicant against the decision of 17 August 2007, noting that it had been lawful and well-founded, and that the investigation into the death of the applicant’s son had been full and complete. The court noted, in particular, that the investigating authorities had taken all possible investigative measures, including questioning numerous witnesses, and had obtained enough evidence enabling them to take their decision to discontinue criminal proceedings. The court also stated that the procedural right of the applicant had not been violated – she had been granted victim status on 14 March 2005, that is immediately after the criminal case was opened, she had been given access to the materials of the case and had been able to actively participate in the investigation by lodging requests which had been adequately dealt with by the investigating authorities.

On 12 December 2007 the Republican Supreme Court upheld the decision of 22 October 2007 on appeal.

C.  The applicant’s attempts to have criminal proceedings instituted against police officers

On 29 March 2005 the applicant also complained that on 3 March 2005 police officers had performed a number of investigative actions in respect of her son in breach of domestic law, given that no criminal proceedings against him had been pending at that moment. She pointed out, in particular, that, although he had been a minor, Artem Kislitsin had been questioned, his home had been searched and two rabbits allegedly stolen by him had been seized, in the absence of any of his legal representatives or a lawyer. The applicant sought to have criminal proceedings instituted against the relevant officers in that connection.

In a decision of 8 April 2005 the district prosecutor’s office refused to institute criminal proceedings upon the applicant’s complaint of 29 March 2005, stating that the police had acted in full compliance with domestic law and that there were no elements of a crime in their actions.

The applicant challenged the decision of 8 April 2005 in court. She complained, in particular, that in that decision the district prosecutor’s office had remained silent as regards a statement of her older son to the effect that Artem had said to him that he had been beaten by the police.

By a decision of 11 May 2005 the District Court set aside the decision of 8 April 2005 as unlawful and unfounded.

On 14 May 2005 the district prosecutor’s office again decided to dispense with criminal proceedings in connection with the applicant’s complaint of 29 March 2005 owing to the absence of the constituent elements of a crime in the police officers’ actions.

On 26 May 2005 the republican prosecutor’s office quashed the decision of 14 May 2005. It stated, in particular, that the inquiry carried out by the district prosecutor’s office and the District Court had established that the police officers had taken investigative measures in breach of provisions of criminal procedural law. It further referred to the investigation in criminal case no. 15022 which was underway and stated that it was necessary to check whether there was a causal link between the established breaches by the police officers and the mental state of the applicant’s son, B. and R. before their suicide. The decision thus concluded that the legal qualification of the police officers’ actions should be made within the context of the criminal proceedings in case no. 15022.

On an unspecified date the District Court declined to examine the applicant’s complaint against the decision of 14 May 2005, stating that it had already been quashed by the republican prosecutor’s office on 26 May 2005.

In a decision of 9 September 2005 the district prosecutor’s office refused to institute criminal proceedings into the applicant’s complaint of abusive treatment by the police officers of her son. The decision relied on materials of criminal case no. 15022 and, in particular, on statements of a number of witnesses to the effect that in the period between 3 and 8 March 2005 they had heard from the applicant’s son, B. and R., that on the former date they had been subjected to physical and physiological violence in the police station. In this respect, the decision noted that those statements had been conflicting and that they were refuted by evidence obtained during the investigation. It stated in particular:

“Being interviewed during the preliminary investigation, [the applicant’s son D.] stated that [Artem] had said to him that, when [he] had been in the police station, a tall police officer with a moustache had punched him [in the solar plexus] and claimed that [Artem] had confessed to a theft … These statements are refuted by a reply from the Sernur Division of the Federal Security Service to the investigator’s request, according to which, the identity of an officer … corresponding to the description given by [D.] could not be established. They are also refuted by statements of [Mr S.], who had been present during the conversation between [Artem Kislitsin and D.] and indicated that, in reply to a question whether any violence had been applied to him by police officers, [Artem] had answered in the negative.”

The decision further relied on statements of the police officers who had questioned the applicant’s son on 3 March 2005. They denied inflicting any physical or psychological violence on Artem Kislitsin, B. and R., stating that the applicant’s son and R. had voluntarily confessed to the theft. They also stated that after the interview the applicant’s son and R. had been invited to stay in the police station as it was necessary to check their statements during a search of their homes; however, they had not been forcibly kept in the police station, could freely move around there and had been free to leave it at any moment.

The decision stated that the aforementioned statements by the police officers were corroborated by other evidence. In particular, according to reports on medical examinations and a report on inspection of the scene of the incident on 9 March 2005, during which the bodies of the applicant’s son, B. and R. had been examined by a forensic medical expert, no injuries had been found on the bodies. Also, in the suicide notes written by the applicant’s son and R. there was no indication that any unlawful violence had been inflicted on them by the police officers. The decision further referred to a statement of Mr S. to the effect that he had asked the applicant’s son whether he had been subjected to violence by the police officers, and the applicant’s son had replied that they had not beaten him. Moreover, B.’s mother stated that when B. returned from the police station, he did not ever tell her that he had been threatened or beaten in the police station. Artem Kislitsin’s grandmother, who had been living in the applicant’s home between 5 and 9 March 2005, when the applicant and her husband were away, indicated that Artem had never told her that he had been beaten by the police officers. Similar statements were made by teachers and classmates of Artem Kislitsin, B. and R. and by attesting witnesses who had participated in the search of the homes of the applicant’s son and R. on 3 March 2005. When an office where the applicant’s son had been questioned was inspected, no stains or traces resembling blood had been found there. The decision thus concluded that there were no constituent elements of a crime in the police officers’ actions.

It appears that the decision of 9 September 2005 was quashed by a supervising prosecutor on 28 September 2005.

In a decision of 30 September 2005, similar to that of 9 September 2005, the district prosecutor’s office again refused to institute criminal proceedings against the police officers owing to the absence of the constituent elements of a crime in their actions.

The applicant challenged the decision of 30 September 2005 in court.

On 26 February 2006 the District Court upheld the decision of 30 September 2005 to dispense with criminal proceedings against the police officers, stating that it was lawful and well-founded.

On 5 April 2006 the Republican Supreme Court, on appeal by the applicant, quashed the decision of 26 February 2006 and ordered a fresh examination of the applicant’s complaint.

On 20 April 2006 the District Court held that the prosecutor’s office decision of 30 September 2005 was lawful and well-founded and dismissed the applicant’s complaint. It noted, in particular, that on 3 March 2005 the applicant’s son, B. and R. had been interviewed by the police officers in connection with a theft in the context of operative and search activities before criminal proceedings against them had been instituted, and that therefore, under relevant legal provisions, there had been no obligation on the police officers to ensure the participation of the boys’ legal representatives in those actions. The court also stated that it had not been established that any unlawful violence had been inflicted on the applicant’s son, B. and R.. It went on to conclude that the inquiry into the police officers’ actions had been full and complete, the investigating authorities had duly assessed the evidence obtained and rightly concluded that there had been no elements of a crime in the officers’ actions.

On 19 June 2006 the Republican Supreme Court upheld the decision of 20 April 2006 on appeal.

D.  Proceedings for compensation

On an unspecified date the applicant brought civil proceedings against the Russian Ministry of Finance, seeking compensation for non-pecuniary damage she had suffered in connection with her son’s death. She insisted that her son had committed suicide because he had been intimidated by the police officers, who had questioned him and performed other investigative actions in his respect in the absence of his parents, and who had provoked in him a feeling of fear by their statements that he would be imprisoned for the theft.

In a judgment of 7 December 2006 the Yoshkar-Ola Town Court of the Republic of Mariy El dismissed the applicant’s claim. It noted that, under a relevant legal provision of the civil law, the State was liable for damage caused by its agents’ actions which were unlawful. It further referred to the report of 2 June 2005 which stated that in the period before his death the applicant’s son had been predisposed to commit suicide and that the police officers’ actions taken in his respect had influenced, to a certain extent, his decision, but could not be said to be the sole incentive for that decision. The court also relied on the fact that during an expert examination of the applicant’s son’s body no injuries had been found, and to the findings of the criminal investigation into the death of the applicant’s son to the effect that the police officers, who at the relevant period had taken investigative steps with respect to the applicant’s son, B. and R., had not supposed and could not have supposed that the said investigative measures might incite the boys to commit suicide, as they had never expressed any such ideas and their conduct had been appropriate. The court thus noted that the materials in its possession revealed that the applicant’s son, B. and R. had taken the decision to hang themselves of their own motion, without being influenced by any third persons and that there was no causal link between the police officers’ actions and the moral suffering endured by the applicant.

On 30 January 2007 the Republican Court upheld the first instance judgment on appeal.

COMPLAINTS

The applicant complains under Article 2 of the Convention that the State failed to discharge its positive obligation to protect her son’s right to life, arguing that her son committed suicide as a result of abusive treatment to which he was subjected in police custody. She further claims that there has been no effective investigation into the matter.

The applicant complains under Article 3 of the Convention that her son was beaten by police officers.

The applicant further alleges that, when investigating an offence allegedly committed by her son, the police carried out a number of investigative actions with regard to her son, including questioning him, searching his home and seizing objects allegedly stolen by him, when criminal proceedings had not been formally instituted, and that therefore his rights under Article 6 of the Convention had been violated.

Lastly, the applicant relies on Article 13 alleging the absence of effective domestic remedies in respect of her complaints under Articles 2 and 3 of the Convention.

QUESTIONS TO THE PARTIES

1.  Is the State responsible for Artem Kislitsin’s death?

2.  Regard being had to the applicant’s allegation that on 3 March 2005 police officers interviewed Artem Kislitsin, searched his home and seized two rabbits allegedly stolen by him in the absence of any adults representing his interests, did the State discharge their positive obligation to protect Artem Kislitsin’s right to life? In particular, were the authorities aware, or ought they to be aware, of a real and immediate risk to his life deriving from self-harm? Did the authorities take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk?

Having regard to the procedural protection of the right to life (see Salman v. Turkey [GC], no. 21986/93, § 104, ECHR 2000-VII), was the investigation in the present case by the domestic authorities sufficient to meet their obligation to carry out an effective investigation, as required by Article 2 of the Convention?

3.  Regard being had to the applicant’s allegations that during the interview of 3 March 2005 Artem Kislitsin was beaten and/or intimidated by the police officers, was Artem Kislitsin subjected to inhuman and/or degrading treatment, in breach of Article 3 of the Convention?

Having regard to the procedural aspect of protection from inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?

4.  Did the applicant have at her disposal effective domestic remedies in respect of her complaints under Articles 2 and 3 of the Convention, as required by Article 13 of the Convention?

5.  The Government are invited to provide a copy of the entire investigation file in criminal case no. 15022 opened into the deaths of the applicant’s son, B. and R. and a full copy of the materials of the inquiry into the applicant’s complaint against the police officers who participated in the investigative actions in respect of Artem Kislitsin, B. and R.

Оставить Ответ

Ваш e-mail не будет опубликован. Обязательные поля помечены *

*
*