Statement of facts of the first section application Rzhavin v. Russia of the European Court of Human Rights

25 May 2010

FIRST SECTION

Application no. 33177/07
by Boris Fyodorovich RZHAVIN
against Russia
lodged on 31 May 2007

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Boris Fyodorovich Rzhavin, is a Russian national who was born in 1937 and lives in the town of Yoshkar-Ola, Mariy El Republic. He is represented before the Court by Mr A. Ryzhov, Ms O. Sadovskaya and Mr I. Kalyapin, lawyers practising in Nizhniy Novgorod.

The circumstances of the case

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

1.  Events on 17 December 2001

On 17 December 2001, at approximately 10.30 p.m., the applicant’s niece accompanied by two men came to the applicant’s flat. As the applicant subsequently discovered one of the men was a police officer of the Zarechniy District police station in Yoshkar-Ola. The applicant, barefoot and dressed in skivvies, opened the door and stepped into the lobby. He was told that he was suspected of having broken a window in his niece’s flat and ordered to follow the men to the Zarechniy District police station. The applicant objected, proposing to discuss the matter inside his flat. However, the man shut the door, noting that there was no need for the applicant to dress up.

The applicant’s niece asked his neighbours to lend him slippers. The men placed the applicant’s hands behind his back and dragged him to a car. While being dragged through the lobby, the applicant lost the slippers as they were too small for him.

The applicant submitted that it was extremely cold outside, minus 21 degrees Celsius.

The applicant was taken to the police station. In the car one of the men threatened the applicant with violence, having promised to take him to a forest and leave him there.

Having been questioned in the police station, the applicant was allowed to go home. In response to the applicant’s complaint that he was barefoot and undressed, a police officer offered him to call a taxi. The applicant objected, noting that he had no money to pay for taxi services. The officer offered the applicant a choice between walking home and taking a taxi. The applicant accepted that latter option. However, the police officers drove him home in a police car and demanded 50 Russian roubles for the ride which the applicant was obliged to pay.

On 19 December 2001 a deputy head of the Zarechniy District police station refused to institute criminal proceedings on the applicant’s niece’s complaint about the broken window finding that the alleged damage was insignificant.

2.  Investigation into the events on 17 December 2001

The applicant lodged a complaint with Yoshkar-Ola Prosecutor’s office, asking to institute criminal proceedings against the police officers involved in the events on 17 December 2001.

On 2 February 2002 an investigator from the Yoshkar-Ola Prosecutor’s office, having heard the applicant, his wife and five neighbours who had confirmed his version of events and having questioned a police officer who had effected the applicant’s arrest, refused to institute criminal proceedings, finding no case to be answered.

On 14 February 2002 the applicant applied to a hospital in Yoshkar-Ola, complaining about a shoulder pain. Following an examination a doctor diagnosed the applicant with posttraumatic arthritis of shoulder joints and prescribed treatment.

On 7 April 2002 the applicant appealed to the Prosecutor of the Mariy El Republic, complaining that the police officers, having used excessive and unnecessary force and having humiliated him in front of his neighbours, had unlawfully brought him to the police station for a night-time questioning.

On 23 April 2002 the applicant was informed that the prosecutor’s office had opened an additional inquiry into his complaints of police brutality. However, merely two weeks later, on 6 May 2002 a senior investigator of the Yoshkar-Ola prosecutor’s office, having studied the same set of statements on which the decision of 2 February 2002 was based, closed the inquiry, finding as follows:

“On the basis of the collected information the investigation makes a conclusion that when the police officer, Mr S., brought [the applicant] to the Zarechniy District police station, he acted within the instituted inquiry into the fact that a window had been broken in the flat… belonging to [the applicant’s niece]. [The applicant’s] bringing to the Zarechniy police station was warranted by the necessity to perform a full and objective inquiry, to obtain [the applicant’s] statements because [the applicant’s niece] pointed at [the applicant] as the person who was suspected of having caused that [damage] and [the police officer] Mr S. acted on the basis of the available information. Moreover, as follows from Mr S.’s and [the applicant’s niece’s] statements [the applicant] willingly followed them to [the police station]; no one forced him [to do it]. Having regard to the abovementioned, Mr S.’s actions do not contain signs of a criminal offence proscribed by Article 286 of the Russian Criminal Code, that is abuse of position. The fact that [the applicant] was brought to the Zarechniy District police station in skivvies in December resulted from [the applicant’s] impossibility to put on clothes as the door to his flat had accidentally been shut when he had entered the lobby and he had no keys. The fact that Mr S. asked [the applicant’s niece] to go to the neighbours and ask for slippers shows that Mr S. did not intend to bring [the applicant] in the Zarechniy District police station in skivvies; but it was impossible to find warm clothes for [the applicant] because when the applicant was brought to the Zarechniy District police station it was almost midnight.

The fact, that [the applicant’s] hands had allegedly been placed behind his back when he had been taken from the lobby and that physical force had been used, was not objectively confirmed by [any evidence], save for [the applicant’s] own statement, and was disproved by Mr S.’s and [the applicant’s niece’s] statements.”

The decision of 6 May 2002 was annulled leading to a re-opening of the inquiry into the applicant’s complaints.

On 29 July 2002 the inquiry was closed when the senior investigator of Yoshkar-Ola prosecutor’s office issued an identically-worded decision to that of 6 May 2002.

The applicant lodged a complaint with the Yoshkar-Ola Town Court, in detail describing the events on 17 December 2001. Relying on the medical certificate issued on 14 February 2002, he also argued that the posttraumatic shoulder arthritis had resulted from an injury caused by the police officers when he had been dragged to the police car.

In the meantime, the prosecutor’s office again re-opened the inquiry into the applicant’s ill-treatment complaint. The new round of the inquiry resulted in the decision of 18 August 2003 which incorporated the text of the decision of 29 July 2002 and included an additional paragraph devoted to the statements made by the applicant’s neighbours. The prosecution authorities concluded that the statements were confusing and unreliable as the neighbours had witnessed the events at night in low light condition and had made incorrect conclusions having heard the noise and loud screams in the lobby.

The applicant amended his claims lodged with the Town Court, also complaining about the decision of 18 August 2003. In support of his complaint he provided the court with written statements by the two of his neighbours. Both neighbours confirmed that they had seen the applicant at approximately 11.00 p.m. on 17 December 2001, when two men, holding him by the hands, had taken him to a car. The applicant had been barefoot and dressed in skivvies. The neighbours stressed that they had given similar statements to the prosecution authorities.

On 30 March 2004 the Yoshkar-Ola Town Court upheld the decision of 18 August 2003, finding that the prosecutor’s inquiry was thorough and that the decision was well-founded.

Following the applicant’s appeal, on 19 May 2004 the Supreme Court of the Mariy El Republic quashed the decision of 30 March 2004, authorising a re-examination of the matter. The decision, in so far as relevant, read as follows:

“The judge, having issued the decision [of 30 March 2004], did not thoroughly verify the grounds and legal basis for the investigator’s decision.

The decision refusing institution of criminal proceedings does not assess entirely [the applicant’s] statements; he indicates in his statements that he was brought to the police station against his will, in his underwear in winter time; his statements have categorical character. The court did not address [the applicant’s] complaints that the inquiry into his complaint had not been performed objectively and [the court] did not provide reasons while rejecting his claims. The court did not establish grounds which could have prompted [the applicant] to slander the police officers.”

On 7 June 2004 the Yoshkar-Ola Town Court, relying on statements by the applicant’s neighbours, quashed the decision of 18 August 2003 and ordered a new round of inquiry. In particular, the Town Court stressed that the applicant’s description of the events on 17 December 2001 was supported by the eye-witnesses’ statements and therefore appeared to be correct. In those circumstances the prosecution authorities were under an obligation to address the lawfulness of the police officers’ actions when they had forced the undressed applicant to go to the police station outside the working hours. The decision of 7 June 2004 was upheld on appeal on 26 July 2004.

On 11 August 2004 a senior investigator of the Yoshkar-Ola prosecutor’s office dismissed the applicant’s complaint, finding no prima facie case of ill-treatment. The decision of 11 August 2004 word for word repeated the decision of 18 August 2003. However, having responded to the remarks of the Town Court, the senior investigator included the following final reasoning in the decision:

“However, all eyewitnesses to the events stated that the police officers had escorted the undressed [applicant] to the police station in winter time late at night. By virtue of Article 11 of the Federal law ‘On police’ in order to fulfil the obligations imposed on them, police officers have the right to obtain necessary statements from individuals and public officials. According to Article 12 police officers have a right to use force. Police officers have the right to use physical force, including fight methods, to prevent criminal and administrative offences, to arrest individuals who committed them, to put an end to disorderly behaviour, if nonviolent methods do not allow fulfilling obligations imposed on the police. The police officer, Mr S., had grounds to conclude that [the applicant] had committed a criminal offence because the petitioner, [the applicant’s niece], indicated that [the applicant] had broken a window in her flat. Due to the fact that [the applicant] had refused to give statements to Mr S., Mr S. had no choice but to escort [the applicant] to the police station. In the circumstances when it was impossible to provide [the applicant] with warm clothes, Mr S. was forced to escort the undressed [applicant] to the police station.

As follows from Mr S.’s and [the applicant’s niece’s] statements, there was no one else, but them, present when [the applicant] was taken to the Zarechniy District police station on 17 December 2001.

[The applicant’s neighbours], Ms K. and Ms P. explained that two police officers had escorted [the applicant] to the car. [Another neighbour], Ms Ki. did not remember how many persons had escorted [the applicant]; it was possible that there had been two. Ms G. stated that [the applicant] had been escorted by two men and a woman. However, all [witnesses] stated that the events had taken place at night.

The discrepancies between their statements indicate that, having regard to the fact that it was dark outside and there was insufficient lighting, they could have incorrectly understood and assessed the situation, particularly taking into account that [the applicant and his niece] were arguing in the lobby.”

On 10 November 2004 the Yoshkar-Ola Town Court, acting on the applicant’s complaint and noting the “extremely formal character” of the prosecution’s inquiry, quashed the decision of 11 August 2004. The Town Court drew up a long list of defects ought to be corrected the investigating authorities within the new round of the inquiry. In particular, the Town Court stressed that it was necessary to establish whether the police officer, S., had acted within his official functions; whether he had been authorised to perform an inquiry into [the applicant’s niece’s] complaints; and whether the applicant had been questioned in the police station on 17 December 2001 and if so, what statements had been made. In the court’s view it was important to establish the exact sequence of events on 17 December 2001, starting from the alleged breaking of the window. The Town Court noted that the official police documents did not contain any information regarding the niece’s complaint and authorisation for Mr S. to respond to it. The Town Court was particularly appalled by the fact that the decision of 11 August 2004 was identical to that issued on 18 August 2003 and that the investigator had not taken any procedural steps within the new round of the inquiry in 2004.

On 27 November 2004 the senior investigator again refused to open a criminal case. That decision was found to be lawful and well-founded when examined on appeal by the Yoshkar-Ola Town Court on 3 March 2005. However, on 6 April 2005 the Supreme Court of the Mariy El Republic did not agree with the Town Court’s conclusions, having stressed that the investigating authorities had once again disregarded the fact that the applicant had been undressed and barefoot when escorted to the police station at night in winter time.

On 10 June 2005 a new round of inquiry was closed with a decision not to institute criminal proceedings. Having entirely incorporated the text of the previous investigator’s decisions, the senior investigator also noted the impossibility to collect additional evidence as police records and relevant documents had already been destroyed in view of the time which had passed since the events in question.

The decision of 10 June 2005, as well as the subsequent decision of 18 August 2005 dismissing the applicant’s complaints, was quashed by a higher-ranking prosecutor.

On 24 November 2005, having additionally interrogated the applicant, his niece, the police officer S. and the applicant’s neighbours, the senior investigator closed the inquiry, finding that there was no evidence of a criminal offence in Mr S.’s actions. In that decision the senior investigator for the first time addressed the medical certificate issued on 14 February 2002 when the applicant had applied to the hospital. The relevant part of the decision read as follows:

“There is no evidence that after having been brought [to the police station] on 17 December 2001 [the applicant] complained to any medical facility about a deterioration of his health. In 1980 [the applicant] underwent treatment of osteochondrosis in the town hospital and subsequently he underwent treatment in various medical facilities. The materials of the inquiry contain a certificate drawn up in the Traumatology hospital on 14 February 2002 when [the applicant] applied to it with a complaint about the beatings [near his house]; he was diagnosed with traumatic arthritis of shoulder joints. Subsequently when questioned about his visit to the Traumatology hospital [the applicant] explained that on 17 December 2001 his hands had been tied up when he had been brought to the Zarechniy District police station. In this regard it is necessary to assess critically his complaints about the deterioration of his health resulting from his having been brought to the Zarechniy District police station.”

On 15 February 2007 the Yoshkar-Ola Town Court upheld the decision, noting that the investigator “had exhausted all possibilities for discovering the signs of a criminal offence”. That decision was upheld by the Supreme Court of the Mariy El Republic on 9 April 2007.

3.  Proceedings for compensation for damage

In the meantime, on 25 October 2005 the applicant lodged an action against the Federal Treasury of the Mariy El Republic, Yoshkar-Ola prosecutor’s office and the prosecutor’s office of the Mariy El Republic, seeking compensation for non-pecuniary damage resulting from the events on 17 December 2001 and the authorities’ failure to perform an effective inquiry into his complaints pertaining to those events.

On 17 November 2005 the Yoshkar-Ola Town Court dismissed the action, finding that there was no causal link between the damage sustained by the applicant and the actions of the Treasury or prosecution authorities. That judgment became final on 15 December 2005, when the Supreme Court of the Mariy El Republic upheld it on appeal.

On 5 September 2006 the applicant lodged a similar action, this time against the Ministry of Finance of the Republic of Mariy El and the police officer S. Invoking Articles 3, 5 and 13 of the European Convention of Human Rights and citing the Court’s judgment in the case of Aksoy v. Turkey, (18 December 1996, Reports of Judgments and Decisions 1996-VI), the applicant complained about the inhuman and degrading treatment at the hands of the police and his unlawful deprivation of liberty on 17 December 2001. In addition, he complained about the inability to obtain effective protection of his Convention rights.

On 3 November 2006 the Yoshkar-Ola Town Court, relying on the investigator’s decision of 24 November 2005 and noting that there was no evidence that Mr S. had acted unlawfully on 17 December 2001, dismissed the action.

On 5 December 2006 the Supreme Court of the Mariy El Republic upheld the judgment, finding that there was no evidence that the applicant’s Convention rights had been breached. The Supreme Court also noted that the judgment of the European Court of Human Rights in the case of Aksoy v. Turkey, cited by the applicant, had no bearing on his case, as it had been issued against another State and not the Russian Federation.

COMPLAINTS

The applicant complained under Articles 3, 5, 8 and 13 of the Convention that he had been subjected to inhuman and degrading treatment by the police officers, that his deprivation of liberty on 17 December 2001 had been unlawful and that he had no effective means of protection of his rights as the domestic authorities had refused to institute criminal proceedings into his ill-treatment complaints and had not accepted his civil actions.

QUESTIONS TO THE PARTIES

1.  As regards the events on 17 December 2001, has the applicant been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention? Having regard to the procedural protection from inhuman or degrading treatment, was the investigation in the present instance by the domestic authorities in breach of Article 3 of the Convention?

2.  Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 3, as required by Article 13 of the Convention?

3.  Was the applicant deprived of his liberty on 17 December 2001 in breach of Article 5 § 1 of the Convention?