FIRST SECTION. Application no /09. against Russia lodged on 25 September 2009 STATEMENT OF FACTS

Transcription

1 FIRST SECTION Application no /09 by Aleksey Gennadyevich AVERYANOV and Aleksandr Gennadyevich AVERYANOV against Russia lodged on 25 September 2009 STATEMENT OF FACTS THE FACTS The applicants, Mr Aleksey Gennadyevich Averyanov (the first applicant) and Mr Aleksandr Gennadiyevich Averyanov (the second applicant), are two brothers. They are Russian nationals who were born in 1973 and 1974 respectively and live in Kazan, the Republic of Tatarstan. The facts of the case, as submitted by the applicants, may be summarised as follows. The circumstances of the case 1. Events of 5 February 2008 and the applicants subsequent administrative arrest At the material time the applicants and their families lived in flat no. 139 in an apartment block in Kazan. (a) Examination or the living premises order in respect of the applicants flat On 5 February 2008 the Sovetskiy District Court of Kazan issued an authorisation for an examination of the living premises («осмотр жилого помещения») in respect of the applicants flat and another flat (no. 149) situated on another floor of the same apartment block. The order was based on the operative information that the inhabitants of the respective flats were involved in drug trafficking. The applicants have not submitted a copy of the respective decision.

2 2 AVERYANOVY v. RUSSIA STATEMENT OF FACTS AND QUESTIONS (b) Alleged ill-treatment On 5 February 2008 the applicants and their relatives (the first applicant s four-year-old daughter, the second applicant s five-year-old son and the applicants sister) were at home. At a.m. the second applicant went to the lobby for a smoke. He invited his brother to join him. Once the second applicant went out of the flat, he was apprehended by three men in plain clothes. They did not introduce themselves. One of the men put the hood on the applicant s face and another one attempted to cover his mouth with a hand. Then the men started beating the second applicant in the face and body. The second applicant managed to scream Bandits! to alert his brother. The first applicant locked the door of the flat from inside in order to protect himself and his daughter and not to allow the intruders to enter the flat. Then he rushed to the lobby to help his brother. The three intruders entered the flat despite the applicants attempts to stop them. One of the men beat the first applicant in the face; he hit the man in reply, and the intruder fell on the floor. Then the two other men run away from the flat. The third man remained inside, fighting with the first applicant. At the second applicant called the police and informed them that his family was being attacked by three unknown persons. Then he went back to the room where the first applicant remained with an intruder. The man told the applicants that he was an officer of the Department of the Federal Drugs Control Service of the Republic of Tatarstan ( the Drugs Control Service ). He refused to produce an identification paper since he had allegedly left it in a car downstairs. The applicants did not believe him because he did not have any identification papers with him, did not produce any documents authorising the entry to the applicants flat and was not wearing a uniform. At the applicants heard someone attempting to break down the door. At no point they were invited to open it. The applicants did not see a police car in the yard and were unaware who was breaking into the flat. The first applicant warned the intruders that the police was on its way to the flat. No reply followed. The applicants tried to hold the door from the inside. After a while the door lock was broken and a group of about ten men in plain clothes burst into the flat. They neither identified themselves nor produced any documents. They severely beat both applicants, hit them against the walls, smashed and kicked them. One of the men beat the first applicant with an ice hockey stick which was apparently brought by him to the flat. Another man hit the first applicant in the face and a hand with a twelve-kilogram dumbbell. The first applicant fell on the floor. The men severely beat and kicked him. On several occasions he lost consciousness. The intruders tied his hands with a cord. In the meantime the second applicant was severely beaten with another dumbbell which the intruders had brought with them, the ice hockey stick and a hammer handle. The men kicked him several times. Then they tied his hands with an iron wire. He lost consciousness on two occasions. The applicants sister submitted that she remained in a different room with two children. The children were frightened and cried. She closed the door but one of the intruders ordered her to open it. He said he was a police officer. She went out of the room and he showed her an identification card of a policeman. She saw that the door and the furniture were broken; her

3 AVERYANOVY v. RUSSIA STATEMENT OF FACTS AND QUESTIONS 3 brothers were prostrated on the floor, their hands tied. The intruders kicked them. One of the men threatened her that he would cut the wires if she called the police. She went back to the room, locked the door from inside and called the ambulance. The men ordered her not to leave the room. She heard them walking into different rooms of the flat. At some point the ambulance arrived. The intruders untied the applicants hands. The doctors provided the applicants with medical assistance. The applicants explained to the doctors that they had been beaten with the ice hockey stick and dumbbells. The intruders told the medical personnel that they were the Drugs Control Service officers. The doctors refused to leave the applicants in the flat and took them to the hospital. On the way to the ambulance car the second applicant saw a local police officer approaching the place pursuant to the applicants call and briefly informed him of the events in the flat. The applicants produced their written statements and a statement of their sister in support of their account of the events. (c) Search of the applicants flat On the same date the officers of the Drugs Control Service searched the applicants flat. The applicants who were transferred to the hospital were not present. The search was conducted in the presence of the applicants sister, the applicants wives and two lay witnesses. The officers found a pack of cannabis in the first applicant s bed. (d) The applicants medical and forensic toxicological examination At 1.40 p.m. the applicants were examined by a traumatologist at the Clinical Hospital of the Republic of Tatarstan. At about 4 p.m. the applicants were transferred by the Drugs Control Service officers to the Kazan Town Hospital no.15. The hospital doctors examined them and provided first aid (see below). Then the officers brought the applicants to the Toxicological Centre of the Republic of Tatarstan for a forensic toxicological examination. According to the preliminary toxicological examination (an express-test ), the first applicant tested positive for cannabis. (e) Administrative proceedings against the applicants and their arrest At 8 p.m. on 5 February 2008 the applicants were brought to the premises of the Drugs Control Service. The Service officers drew up separate records of an administrative offence in respect of each applicant. According to the records, the first applicant was to be charged with of the administrative offence of consumption of cannabis without doctor s prescription on 5 February 2008 at The second applicant was to be charged with the same offence committed on December The second applicant pleaded guilty and the first applicant denied the charges. They did not sign the respective records. The applicants were brought to two separate detention cells in the Service premises and remained there overnight. On 6 February 2008 the Justice of the Peace of the Court Circuit no. 2 of the Privolzhskiy District of Kazan found the applicants guilty of the

4 4 AVERYANOVY v. RUSSIA STATEMENT OF FACTS AND QUESTIONS administrative offences as charged and ordered their ten-day administrative arrest. From 6 to 8 February 2008 the applicants were detained at the Drugs Control Service premises. On 8 February 2008 they were released from detention on medical grounds. On 18 February 2008 the Privolzhskiy District Court of Kazan upheld the decision in respect of the first applicant on appeal. 2. Medical documents (a) Medical information in respect of the applicants According to the records of the Clinical Hospital of the Republic of Tatarstan of 5 February 2008, the first applicant was diagnosed with closed fracture of the second proximal phalanx of the left hand; bruise on the left hand; bruise of the soft tissue of the chest. The doctors established no evidence of a brain injury. According to the medical certificate no. 764, the second applicant applied for medical assistance in respect of the bruise of the soft tissue of the left wrist joint. [Diagnosed with] closed ribs fracture. Examined by a brain surgeon, traumatologist. No evidence of a brain or scull injury. Sent [to a hospital] for in-patient treatment. It follows from the records of the Kazan Town Hospital no. 15 dated 5 February 2008, the first applicant was examined at According to him, he had been beaten by the police officers. He was diagnosed with undisplaced closed fracture of the second proximal phalanx of the left hand and bruises of the body and extremities soft tissue. The doctor applied the plaster cast on the fractured hand and prescribed medical supervision. The second applicant was examined on the same date and diagnosed with chest injury and soft tissue bruise, as well as abrasions on the face, head and left hand. According to the forensic medical examination report of 8 February 2008 drawn in respect of the second applicant, the following injuries were detected on him: a lesion of the right parietal region, a large scalp bruise and multiple bruises on the face, left forearm and wrist. The injuries had caused minor damage to health. He also had multiple bruises of the zygomatic region, jaw, left knee, chest soft tissue, right leg and left gluteal region. The injuries had been caused by hard blunt objects, possibly as a result of a blow, compression, or fracture. It could not be excluded that the injuries had been caused on 5 February On 9 February 2008 the first applicant was subjected to a forensic medical examination. The expert confirmed the diagnosis as regards the fracture and established that the injury entailed the medium degree health damage. Other injuries did not entail any health damage. On 13 February 2008 an X-ray examination of the first applicant showed an undisplaced closed fracture of the second proximal phalanx. From 8 to 15 February the second applicant underwent in-patient treatment at the Republican Clinical Hospital. He was diagnosed with brain concussion, multiple bruises of soft tissue of the head and chest.

5 AVERYANOVY v. RUSSIA STATEMENT OF FACTS AND QUESTIONS 5 (b) Medical information in respect of the applicants children From the applicants submissions and the written statements of the first applicant s wife dated 27 July 2009 it transpires that the applicants minor children were deeply traumatised by the events of 5 February The second applicant s daughter experienced difficulty sleeping for several weeks. The first applicant s son developed stammering. The children were diagnosed with post traumatic stress disorder and from 16 February to 18 March 2008 received psychological treatment at the local out-patient hospital no Criminal proceedings against the applicants It follows from the decision of the Kazan Department of the Investigative Committee at the Prosecutor s Office dated 18 March 2008 (see below) that on 7 February 2008 criminal proceedings concerning the discovery of the narcotic substance were brought under Article of the Criminal Code (illicit acquisition, storage, possession of narcotic drugs or psychotropic, strong or toxic substances without the intention to sell), against unidentified persons. No further information was submitted by the applicants in this respect. 4. Inquiry into the alleged ill-treatment On 6 February 2008 the applicants sister and wives complained about the ill-treatment to the district prosecutor s office of the Privolzhskiy District of Kazan and the Kazan Town Department of the Investigative Committee at the Prosecutor s Office seeking institution of criminal proceedings against the Drugs Control Service officers on account of abuse of position and exceeding official powers (Articles 285 and 286 of the Criminal Code). They submitted a detailed account of the events and the medical certificates in support of their allegations. On 7 February 2008 the Drugs Control Service requested the Kazan Department of the Investigative Committee to hold an inquiry into the applicants unlawful actions against the officers involved in the operativesearch activity. (a) Inquiry by the Kazan Town Department of the Investigative Committee An investigator of the Kazan Town Department of the Investigative Committee held an inquiry under Article 144 of the Code of Criminal Procedure ( examination of a complaint alleging a criminal offence ) and on 15 February 2008 refused to open criminal proceedings both on the application of the officers of the Drugs Control Service and the applicants complaint. The respective decision was based on the applicants and their sister s account of the events, as well as on the officers statements. From these statements it transpired that the Drugs Control Service had possessed the information on the applicants involvement into the cannabis trafficking. They had obtained an authorisation for the operation-search activity examination of the living premises from the Sovetskiy District Court of Kazan in respect of the applicants flat (no. 139) and flat no. 149 situated in the same apartment block. K., Kh. and B., officers in charge of the operation, had been waiting in the lobby, while the other officers had

6 6 AVERYANOVY v. RUSSIA STATEMENT OF FACTS AND QUESTIONS searched the flat no At the second applicant had gone out of the flat; he had had a conversation with K. which resulted in mutual insults and a fight. Then the first applicant had joined the brother and the fight had continued. In K. s submission, he had informed the applicants that he had been a police officer. K. testified that he had been hit in the head and could not remember how he had entered the flat. The applicants had locked the flat door from inside. According to Kh. s statement, he saw the second applicant going out of the flat and run to inform his colleagues at the flat no When he came back, he saw B. on the floor, bruises on his face and a police officer s identification card in his hands. Three more officers from the flat no. 149 joined them. They warned the applicants that they had been police officers and invited them to open the door. The applicants had not replied, and they had decided to break open the door. From the statements of officers Sukh. and D. it followed that they had been conducting the operation-search activity examination of the living premises at the flat no Since there had been no specialists in the group, officer S. had left to invite an expert, a canine officer and a Special Forces officer. Other officers had been waiting at the entrance of the flat no. 149 and had been invited to assist their colleagues at the flat no. 139 because there had been a violent fight there. They invited the applicants to open the door of their flat and liberate K. who had been locked inside. They had informed the applicants that they had been members of the police forces. Since the applicants had not obeyed, they had broken the door. They had had to use force in the flat due to the applicants violent resistance. The decision also stated that a hammer, dumbbells and a ice hockey stick had been seized on the spot. It reproduced a record of the applicant s call to the police and referred to the testimony of the applicants wives as regards the search of the flat. The investigator found no evidence of a disproportionate use of force by the officers of the Drugs Control Service, without citing any further details or reasons. At the same time, he concluded that no criminal proceedings should be brought against the applicants under Articles 317 and of the Criminal Code (encroachment on the life of a State official and assault on a State official), as they could not reasonably suggest that the intruders had been police officers. In fact, the officers had neither introduced themselves nor produced any identification papers or a search order. The first applicant challenged the refusal at the court. He submitted that the inquiry had not been complete, that the expert examinations had not been conducted and that the investigators had not questioned all the participants of the operation, as well as the applicants neighbours. On 14 April 2008 the Vakhitovskiy District Court of Kazan annulled the refusal to open criminal proceedings as unfounded. The court accepted that the witnesses had not been questioned and ordered rectify the defect. At the same time, the court rejected the argument about the failure to order the expert examination, since the examinations could only be held within criminal proceedings but not within inquiries such as in the applicants case. On 13 May 2008 the Supreme Court of the Republic of Tatarstan quashed the judgment of 14 April 2008 on the prosecutor s office s appeal

7 AVERYANOVY v. RUSSIA STATEMENT OF FACTS AND QUESTIONS 7 and remitted the case for a new examination, because the Vakhitovskiy District Court had examined the case in the absence of the Drugs Control Service officers and did not specify the witnesses to be questioned. The appeal court found that there was no need to question the applicants neighbours since they had not eye-witnessed the events. On 3 June 2008 the Vakhitovskiy District Court examined the applicants complaint afresh and rejected it as unfounded. The court decided that the refusal to bring criminal proceedings against the officers was lawful. It was based on the statements of the persons involved in the events. There was no need to hold an expert examination. The case materials had been examined in their entirety and the investigators had established no grounds to bring the criminal case against the participants of the police operation. On 1 July 2008 the Supreme Court of the Republic of Tatarstan upheld the judgment on appeal. (b) Inquiry by the Central Inter-District Investigation Department On 11 February 2008 the prosecutor s office of the Privolzhskiy District of Kazan forwarded the complaints by the applicants wives and sister to the Central Inter-District Investigation Department. On 22 February 2008 the investigator of the Central Inter-District Investigation Department refused to institute criminal proceedings against the officers of the Drugs Control Service, for the lack of indication of a crime. The decision referred to the second applicant s statement and a written statement by B., one of the Drugs Control Service officers. The investigator found no evidence of the abuse of power and concluded that applicants injuries must have been lawfully caused during the operation-search activity and the officers had lawfully used physical force because of the applicants violent resistance. No further details were provided in the decision. On 4 March 2008 the head of the Central Inter-District Investigation Department annulled the decision and ordered an additional inquiry. On 13 March 2008 the investigator of the above department issued a decision refusing to institute criminal proceedings. The reasons provided and the wording of the decision were identical to that of 22 February Both applicants challenged the refusal at the court under Article 125 of the Code of Criminal Procedure which provides for judicial review of decisions by investigators that are liable to infringe the constitutional rights of the participants in the proceedings or prevent a person s access to court. On 12 December 2008 the Privolzhskiy District Court of Kazan refused to accept the applicants complaint about the decision of 13 March 2008 for examination. On 23 January 2009 the Supreme Court of the Republic of Tatarstan quashed the decision of 12 December 2008 and ordered a new examination of the complaint. On 2 February 2009 the head of the Central Inter-District Investigation Department quashed the decision of 13 March 2008 and remitted the case for a further inquiry. On 6 February 2009 the Privolzhskiy District Court of Kazan disallowed the applicants challenge of the decision of 13 March 2008, since it had been quashed in the meantime.

8 8 AVERYANOVY v. RUSSIA STATEMENT OF FACTS AND QUESTIONS On 11 February 2009 an investigator of the Central Inter-District Investigation Department again refused to open criminal proceedings in respect of the applicants complaint against the officers. In addition to the previously examined evidence, the decision referred to the statement of the local police officer who had arrived on the spot pursuant to the applicants call. He had seen two young men being transported to a hospital by an ambulance car. He had talked to a person who had introduced himself as an officer of the Drugs Control Service and had explained that an operativesearch activity had been being conducted. The investigator concluded that the police officers lawfully used force against the first applicant. On an unspecified date both applicants appealed against the decision under Article 125 of the Code of Criminal Procedure, referring to various defects of the investigation. On 31 May 2009 the head of the Central Inter-District Investigation Department annulled the decision of 1 February In the respective decision he stated that the inquiry had not been complete; that it was necessary to question the local police officer and the officers in charge of the search and to hold the first applicant s forensic examination. He remitted the case for an additional inquiry. On 1 June 2009 the Privolzhskiy District Court of Kazan refused to examine the applicant s action because the decision of 11 February 2009 had been annulled on 31 May On 6 June 2009 the Central Inter-District Investigation Department forwarded the case to the Kazan Department of the Investigative Committee for further inquiry. On 10 August 2009 the first applicant studied the inquiry materials at the Central Inter-District Investigation Department and learned that the case was assigned to a different investigative authority in the meantime. The applicants submit that do not have any further information on the state of the investigation. 5. Other proceedings (a) Complaint by the applicants relatives to the prosecutor s office On 6 February 2008 the applicants wives and their sister complained about trespassing into the flat and unlawful search to the prosecutor s office. On 11 February 2008 their complaint was forwarded to the Central Inter-District Investigation Department of the Investigative Committee at the Prosecutor s office of the Republic of Tatarstan ( the Central Inter-District Investigation Department ) for examination. On 18 February 2008 the investigator of the Kazan Department of the Investigative Committee at the Prosecutor s Office refused to open criminal proceedings for the lack of indication of a crime. The respective decision referred to the complainants statements, a testimony by officers D. and S. and lay witnesses testimonies. The investigator found that the Drugs Control Service officers were conducting an operative search activity, lawfully entered the flat, conducted the search in accordance with the Code of Criminal Procedure and acted in compliance with the provisions of the Police Act. It appears that the decision was not appealed against.

9 AVERYANOVY v. RUSSIA STATEMENT OF FACTS AND QUESTIONS 9 (b) The first applicant s inquiry with the Drugs Control Service On 8 June 2009 the first applicant applied to the Department of the Federal Drug Trafficking Control Service of the Republic of Tatarstan for permission to study the case-file. In particular, he requested access to the materials which constituted a ground for the search order of 5 February On 19 June 2009 the department informed the applicant that the relevant materials had been destroyed, because the storage period had expired. COMPLAINTS The applicants complain under Article 3 that they were subjected to ill-treatment during the examination of their flat and that the severity of the injuries sustained indicates that the use of force by the officers of the Drugs Control Service was manifestly disproportionate. They submit in this respect that the officers failed to plan the operation in advance and to take all necessary measures for carrying out the investigative activity. The applicants further allege that the officers did not introduce themselves, did not have identification cards with them and were wearing plain clothes. The applicants submit that they could not reasonably suspect that they were dealing with a law enforcement authority. They claim that there were about ten officers involved and they clearly outnumbered the two applicants, and that the officers continued beating the applicants even when they had been handcuffed and could not resist the officers actions. The applicants further complain under Article 3 about their minor children s and sister s moral suffering as a result of the events of 5 February They complain under Article 3 that the investigation into their allegations of ill-treatment was ineffective because the officers of the Drugs Control Service were not brought to justice, the prosecutors disregarded their complaints and the courts deprived them of an opportunity to challenge their failings. The respective decisions were not based on the entirety of the existent evidence and did not demonstrate with convincing arguments that the use of force was not excessive. They further complain under Article 13 that they did not have effective remedies in respect of their complaint. QUESTIONS TO THE PARTIES 1. Were the applicants subjected to inhuman or degrading treatment during or after the operative-search activity examination of the flat on 5 February 2008 in breach of Article 3 of the Convention? In particular: (a) Was the operation on the examination of the flat, as well as the applicants apprehension, planned beforehand? The Government are invited to submit the respective documents.

10 10 AVERYANOVY v. RUSSIA STATEMENT OF FACTS AND QUESTIONS (b) Did the applicants resist the arrest? (c) Did the police officers use excessive force to arrest them (see Rehbock v. Slovenia, no /95, 71-77, ECHR 2000-XII)? 2. Having regard to the procedural protection from torture, inhuman or degrading treatment or punishment (see Labita v. Italy [GC], no /95, 131, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention? In particular: (a) Were the investigators (investigating authority), who carried out the inquiry into the applicants allegations of police ill-treatment, independent of the investigators (investigating authority) who were responsible for an inquiry into the administrative offence allegedly committed by the applicants? If any criminal proceedings were subsequently brought against the applicants as a follow-up to the examination of their flat on 5 February 2008, were the investigators (investigating authority), who carried out the inquiry into the ill-treatment complaint, independent of the investigators in charge of the criminal case against the applicants? (b) Which police officers (local police, Drugs Control Service, etc.) from which police department(s) were involved in the inquiry into the applicants complaint of ill-treatment? What operational and other activities did they carry out in the course of the above inquiry? Were they independent of the Drugs Control Service department and those of its officers who were allegedly implicated in the applicant s ill-treatment? (c) Did the applicants have full access to the inquiry materials? 3. Did the applicants have at their disposal an effective domestic remedy for their complaints under Article 3 of the Convention as required by Article 13 of the Convention?