Постановление Европейского суда по правам человека от 17.12.2009 «Дело Денис Васильев (denis vasilyev) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF DENIS VASILYEV v. RUSSIA
(Application No. 32704/04)
JUDGMENT*
(Strasbourg, 17.XII.2009)
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*This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Denis Vasilyev v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Christos Rozakis, President,

Nina {Vajic}*,

____________________________
*Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.

Anatoly Kovler,

Elisabeth Steiner,

Dean Spielmann,

Giorgio Malinverni,

George Nicolaou, judges,

and {Soren} Nielsen, Section Registrar,

Having deliberated in private on 26 November 2009,

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

PROCEDURE
1. The case originated in an application (No. 32704/04) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Russian national, Mr Denis Vladimirovich Vasilyev ("the applicant"), on 23 July 2004.

2. The applicant, who had been granted legal aid, was represented by Ms M. Voskobitova, a lawyer practising in Moscow. The Russian Government ("the Government") were represented by Mr P. Laptev, former Representative of the Russian Federation at the European Court of Human Rights.

3. The applicant alleged, in particular, that the assault on him had not been properly investigated, that he had been the victim of ill-treatment on the part of police officers and medical personnel which had likewise not been investigated, and that he had not been recognised as a civil party in the criminal proceedings.

4. On 4 April 2006 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3 of the Convention).

5. The Government objected to the joint examination of the admissibility and merits of the application. Having examined the Government's objection, the Court dismissed it. The Court decided, after consulting the parties, that no hearing in the case was required (Rule 59 § 3 in fine).

THE FACTS
I. The circumstances of the case
6. The applicant was born in 1983 and lives in Moscow.

A. Assault on the applicant and medical treatment
1. Assault on the applicant and his friend
7. On 29 June 2001 the applicant and his school friend Mr N. were spending the evening together. At about 11.30 p.m. they went to Mr N.'s place as Mr N., who is a diabetic, needed an insulin injection. After that they took a taxi to the applicant's place.

8. While walking through the courtyard they were assaulted, near house No. 16/18 on Shcherbakovskaya Street in the Eastern Administrative District of Moscow. The attacker called out to them from behind and, before they could turn round, they received strong blows to their heads, fainted and collapsed on the ground. A considerable sum of money, a gold bracelet and a cell phone were stolen from them.

9. Neighbours called the Sokolinaya Gora police station. At 1.40 a.m. on 30 June 2001 the police officers Mr Zharov and Mr Volkov arrived at the scene. They served in the 2nd police battalion of the Eastern Administrative District of Moscow, whose main task was to provide security to businesses and private property under commercial contracts. In addition to that, they acted as neighbourhood patrol officers.

10. According to their statements, they saw two young men on the road whom they believed to be drunk. One of them was sitting, the other lay still. Some vomit could be seen. The policemen claimed that they reported the situation to the officer at the Sokolinaya Gora police station and told him that an ambulance or specialists from a sobering-up centre should be called.

11. The policemen then dragged the unconscious applicant and his friend away from the road into the courtyard of house No. 16/18. According to the Government, the policemen left the applicant and N. "on a grass plot"; the applicant claimed that they had been put "in the rubbish dump". At that moment the private security co-ordinator (дежурный по отделу вневедомственной охраны) informed the officers that an alarm had gone off and instructed them to check it out. They reported it to the officer at the police station and left the scene.

12. At about 7 a.m. janitors Ms E. and Mr B. spotted two young men some three or four metres away from the rubbish bins and attempted to wake them up. However, both were unconscious, the dark-haired one (Mr N.) mumbled incoherently. They called for an ambulance.

13. At 8 a.m. Doctor P. arrived in the first ambulance. On seeing two victims, he called for another ambulance and began attending to Mr N. who had an abrasion and haematoma on his left cheek. When Mr N. regained consciousness, Doctor P. helped him climb into the van and took him to Moscow City Hospital No. 1.

14. In the meantime, a second ambulance arrived with Doctor Ch. He loaded the still unconscious applicant into the van and took him to Moscow City Hospital No. 33.

2. Treatment at Hospital No. 33
15. Upon arrival at the hospital at 9.05 a.m. the applicant was diagnosed with alcohol intoxication. Injuries and abrasions on his wrists and forehead were noted. Two hours later he was examined by a neurosurgeon.

16. Until 5 p.m. on 1 July 2001 the applicant remained, still unconscious and also undressed, on a trolley in the hospital corridor.

17. At 6.30 p.m. emergency surgery - bilateral trepanation of the skull - was performed on him.

18. On 8 July 2001 the applicant's mother invited a private doctor to examine her son. The doctor determined that the applicant was in a life-threatening condition. An ambulance transferred the applicant in a state of coma to the Burdenko Military Hospital in Moscow.

3. Treatment at Burdenko Hospital and partial recovery
19. From 9 July to 27 July 2001 the applicant was in a coma. On 25 July 2001 tracheotomy (creation of a surgical airway in the cervical trachea) was performed and a cannula was inserted.

20. After he woke up from the coma, he was transferred to the neurosurgery unit where he stayed in a critical state until 10 August.

21. Until the removal of the cannula in October 2001 and then in December 2002, the applicant underwent several operative procedures for osteomyelitis of the skull.

22. On 1 October 2001 a medical panel recognised the applicant as having disability of the second category.

23. In 2002 the applicant developed post-traumatic convulsive disorder. On 13 June 2003 he had a seizure and fainted. He was taken to Burdenko Hospital and operated upon for a pus abscess in the skull.

B. Investigations and judicial proceedings
1. Investigation into the assault (case No. 073041)
24. On 30 June and 1 July 2001 the Sokolinaya Gora police station received from Hospitals Nos. 1 and 33 reports on bodily injuries concerning the applicant and Mr N. The head of the inquiries section of the police station asked the operational officer Mr Yermakov to check the reports. Subsequently the internal inquiry (see below) revealed that Mr Yermakov had not taken any measures for the purpose of inspecting the crime scene, identifying witnesses or interviewing the victims.

25. On 6 July 2001 Mr Yermakov forwarded the materials to the Investigations Department where the case was assigned to the operational officer Mr Abdryayev. Mr Abdryayev did not take any procedural decision regarding the materials until 17 July 2001.

26. On 18 July 2001 the head of the Sokolinaya Gora police station launched an internal inquiry which revealed that nothing had been done with regard to the injury reports. Both Mr Yermakov and Mr Abdryayev were disciplined. On the same day the crime scene was examined for the first time. On 20 July 2001 a criminal investigation into the assault on the applicant and Mr N. was opened.

27. On 20 September 2001 the investigator Mr Drozdov issued a decision to discontinue the proceedings because the perpetrator of the assault could not be identified. The only items of evidence referred to in the decision were statements by the police officers Volkov and Zharov, by the ambulance doctor and by Mr N.

28. On 16 October 2001 the investigator Mr Solomkin decided to re-open the investigation.

29. By letter of 29 October 2001, a deputy to the Presidential Envoy in the Central Federal Region wrote to the applicant's mother that her complaint about the prolonged investigation had been examined by the Internal Security Department of the Ministry of the Interior. It had been established that the inquiry had not been properly conducted, that no one had visited or examined the crime scene, and that no other investigative steps had been taken. Operational police officers Mr Yermakov and Mr Abramov had been reprimanded.

30. On 16 November 2001, 6 January, 19 April, 13 June and 15 August 2002, decisions to suspend the proceedings were issued because the perpetrator(s) could not be identified. Supervising prosecutors set these decisions aside and instructed the investigator to take additional investigative measures, such as interviewing caretakers in the neighbouring buildings and the night watchman in the Korona {cafe} and examining the list of calls made from the stolen cell phone.

31. On 12 September 2003 the case was transferred to the Main Investigations Department of the Moscow City Police.

32. In a letter of 27 February 2004 the Investigations Committee of the Ministry of the Interior acknowledged that the investigation of cases Nos. 073041 and 1056 (see below) had been improper, noting as follows:

"Thus, it has been established that at the initial stage the investigation of case No. 73041 was carried out at a low professional level and in breach of the rules of criminal procedure. On many occasions proceedings were prematurely suspended on the ground that the persons responsible could not be identified. Certain officers of the Sokolinaya Gora police station of the Eastern Administrative District in Moscow were disciplined for violations of the rules of criminal procedure and inadequate management of the investigation. Investigation of case No. 1056 [medical negligence] was also held back because of significant failures.

Having regard to deficiencies in the investigation and in compliance with the directions of the Moscow city prosecutor's office, additional investigative steps and operational measures are now being carried out in the above cases with a view to examining the events in a comprehensive and thorough fashion and establishing the criminal liability of those responsible."
33. On 2 April and 13 May 2004 public prosecutors reversed further police decisions suspending the investigation and ordered that specific investigative measures be taken.

34. On 4 June 2004 the case was referred to the Eastern Administrative District prosecutor's office and assigned to the investigator Mr Volk, who was in charge of particularly important cases. On 20 July 2004, 30 January, 18 August and 5 October 2005, and 27 March 2006 Mr Volk suspended the investigation on the ground that the perpetrator(s) of the assault could not be identified. Those decisions were reversed by supervising prosecutors.

35. The most recent decision by Mr Volk on suspending the investigation which has been made available to the Court is dated 17 July 2006. It took stock of the evidence that had been collected in the case.

36. The decisions indicated that the statements had been taken from both victims - the applicant and N. - who had not remembered the attacker, their friends who had not seen the attack, and also the police officers, janitors and doctors who had seen the victims after the attack. The forensic experts had established that the applicant had sustained "serious bodily injuries" and N. "light bodily injuries".

37. The applicant's mother told the investigator that shortly after the crime she had visited the Sokolinaya Gora police station. One of the police officers who had curly hair and the nickname "Pushkin", had described to her that the victims had been found near the Korona {cafe}. The applicant's mother had gone to the {cafe} and talked to the employees who had told her that on the night of 29 to 30 July 2001 three police officers nicknamed "Sasha", "Sidor", and "Kostya" had been heavily drinking in the {cafe} and had been aggressive to the point of seeking a fight with the bartender. However, they had not witnessed any fights between the officers and her son or Mr N. The investigator also took testimony from seven officers from the Sokolinaya Gora police station who claimed they were unable to remember visiting the {cafe} on that particular night and did not know anyone nicknamed "Sidor" or "Pushkin". Three of them denied that they had ever been to the Korona {cafe} and the other four acknowledged that they had gone there from time to time.

38. Mr N.'s mother stated to the investigator that in the hospital her half-conscious son had mumbled incoherently about "cops" hitting him on the head. When she came to visit him two days later, she stumbled upon two men in civilian clothing by her son's bed, one of them was shaking her son and asking him whether he had remembered the "cops" who had beaten him. She loudly protested and they all went out into the corridor where the men produced their badges and introduced themselves as the police officers from the Sokolinaya Gora police station, Mr Drozhzhin and Mr Konovalenko. Between themselves, they called each other "Pushkin" and "Dimon". They told her that they were investigating the assault on her son. The investigator interviewed Mr Drozhzhin, who denied that he had ever visited Mr N. in hospital. Mr Konovalenko was not available for questioning.

39. The investigator found that it was impossible to identify the persons responsible for the assault. On 30 November 2006 a supervising prosecutor annulled that decision and instructed Mr Volk to elucidate discrepancies in the testimony by organising confrontations and to locate and examine former police officers from the Sokolinaya Gora police station.

2. Investigation into the actions of the police officers
Zharov and Volkov (case No. 229337)
40. On 6 January 2002, following on the applicant's mother's complaint about an improper performance of their duties by the police officers Mr