Постановление Европейского суда по правам человека от 10.06.2010 «Дело Шерстобитов (sherstobitov) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF SHERSTOBITOV v. RUSSIA
(Application No. 16266/03)
JUDGMENT*
(Strasbourg, 10.VI.2010)
____________________________
*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 Sherstobitov 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,

Khanlar Hajiyev,

Dean Spielmann,

Sverre Erik Jebens,

George Nicolaou, judges,

and {Soren} Nielsen, Section Registrar,

Having deliberated in private on 20 May 2010,

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

PROCEDURE
1. The case originated in an application (No. 16266/03) 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 Valeriy Aleksandrovich Sherstobitov ("the applicant"), on 14 April 2003.

2. The applicant was represented by Mr K. Kozhakhmetov, a lawyer practising in Krasnoyarsk. The Russian Government ("the Government") were represented by Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights.

3. The applicant alleged, in particular, that he had been subjected to ill-treatment in police custody, that his detention had been unlawful and unreasonably long and that the criminal proceedings against him had been excessively long.

4. On 6 July 2007 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).

THE FACTS
I. The circumstances of the case
5. The applicant was born in 1974 and lives in Krasnoyarsk.

1. The applicant's arrest and questioning
at the police station
6. On 29 January 2002 Ts. and V. were drinking beer at a bus stop, where they saw the applicant and B., a nine-year-old boy. They were under the impression that the applicant was making sexual advances to B. and asked the assistant from a shop nearby to call the police. The shop assistant called the security guards from her company. Two guards, T. and S., arrived and took the applicant and B. to the police station at about 1 a.m. on 30 January 2002.

7. At the police station, the applicant was placed in an "administrative" cell with three other detainees. According to K. and N., police officers on duty at the police station at the time, N. had to remove the applicant from the cell because other detainees verbally and physically attacked him. The applicant did not dispute the account of his placement in the cell provided by K. and N. However, he denied having been beaten by the other detainees. According to him, the police officer removed him from the cell as soon as one of the detainees started making threats to him. The detainee did not have time to hit him.

8. At about 4 a.m. on 30 January 2002 the applicant was taken to a separate room for questioning. According to the applicant, three police officers handcuffed him, verbally insulted him and hit him on the head, legs, back and crotch with rubber truncheons. They kicked and punched him. Then they removed the handcuffs, took off his sweater and a jacket and continued the beatings, questioning him about the boy. At about 6 a.m. they brought a rubber truncheon with a condom put over it. They pulled down the applicant's pants, inserted the truncheon up his anus and put a gas mask over his head. He screamed and they stopped. After that he wrote a confession dictated by the policemen, who held the rubber truncheon in front of him throughout that time. At about 1 p.m. the applicant was taken to the investigator's office. The applicant told the investigator about the beatings. The policemen took him out of the office and punched him again.

9. According to policeman Nik., he took part in the applicant's questioning together with policemen Gr. and P. The applicant had bruises and scratches on his face when they saw him for the first time. It was obvious that he had been beaten up. His clothes were covered with dust and shoe prints were visible on them. Nik. realised that other detainees had beaten the applicant up. The applicant was at first ashamed to tell them what had happened but then confessed. None of the policemen put any psychological or physical pressure on him. Gr. confirmed Nik.'s version of the events. P. later testified that he had no recollection of the applicant's questioning.

10. On the same day at 10 p.m. the applicant was taken to the temporary detention centre, where the officer on duty documented his injuries. Then the applicant was taken to State Hospital No. 7. The doctor examined him and noted numerous bruises, scratches on the face, neck, back and arms, and abrasions on the back and chest. The doctor stated that those injuries were not of a serious nature and had not caused any "health impairment" or "loss of working capacity".

11. According to the applicant, other persons detained at the temporary detention centre could see bruises and abrasions on his face. He also had scratches on his chin caused by the gas mask. The handcuffs left abrasions on his wrists. There were scratches on the neck and bruises on the chest, buttocks, legs and back. The skin of the anus was damaged and bleeding.

12. According to the materials in the investigation file, none of the persons detained at the temporary detention unit recalled that the applicant had had injuries on his face and body. Nor did they remember that he had told them about the beatings by the policemen.

2. Criminal proceedings against the applicant
(a) Investigation and first trial
13. On 1 February 2002 the investigator ordered the applicant's detention pending investigation, noting that he was charged with a serious criminal offence and might abscond.

14. On 8 February 2002 the investigator authorised the applicant's continued detention pending investigation. In particular, she noted as follows:

"Given that [the applicant] might abscond or reoffend, and having regard to the gravity of the charges..., [he] should remain in custody."
15. On 10 April 2002 the Kirovskiy District Court of Krasnoyarsk dismissed the applicant's request to be released pending investigation and trial. The applicant appealed. He argued, inter alia, that he was not a repeat offender, that he had a permanent place of residence and employment and that he had to provide special care for his elderly parents.

16. On 7 May 2002 the Krasnoyarsk Regional Court upheld the decision of 10 April 2002 on appeal. In particular the court noted:

"[The applicant] is charged with a very serious criminal offence. His remand in custody and indictment have been conducted in accordance with law. The [District] Court's decision to dismiss the [applicant's] application for release was therefore justified."
17. On 30 April 2002 the prosecutor approved the bill of indictment and on 7 May 2002 the Kirovskiy District Court of Krasnoyarsk received the case file.

18. On 31 May 2002 the court opened the trial. It held four hearings in total. The first two hearings, on 31 July and 8 August 2002, were adjourned following requests submitted by the applicant and his counsel to study the case file and to obtain medical documents and materials concerning the applicant's allegations of ill-treatment from the prosecutor's office.

19. On 26 August 2002 the District Court found the applicant guilty of sexual assault of a minor and sentenced him to eight years' imprisonment. On 29 October 2002 the Krasnoyarsk Regional Court quashed the applicant's conviction on appeal, noting that the trial court had failed to establish the exact time of the crime and to consider an application by the applicant for certain evidence to be declared inadmissible. The court further ordered that the applicant should remain in custody.

(b) Second trial
20. On 25 November 2002 the case file was returned to the District Court. On 17 December 2002 the trial was suspended pending consideration of a request by the prosecutor for supervisory review of the judgment of 29 October 2002.

21. On 31 December 2002 the District Court extended the applicant's detention pending trial until 28 March 2003. In particular, the court noted:

"After having heard [the applicant], his counsel..., who argued that the applicant should be released pending trial given that he was employed, could provide positive references and had two elderly parents who needed his financial support, and the prosecutor, who argued that it was necessary to extend [the applicant's] detention, the court finds that it is necessary to extend [the applicant's] detention until 28 March 2003 since, after [the applicant's] conviction on 26 August 2002 was quashed on appeal, the trial was adjourned pending consideration of the prosecutor's application for supervisory review of the appeal judgment of 29 October 2002. The preventive measure was imposed on the applicant in accordance with the law and was justified."
22. On 4 January 2003 the Presidium of the Regional Court dismissed the prosecutor's request for supervisory review and returned the case file to the District Court, which opened the trial on 16 January 2003.

23. On 23 January 2003 the Regional Court upheld the decision of 31 December 2002 on appeal. The court noted as follows:

"[The applicant] is charged with a very serious criminal offence. The indictment and the decisions to remand [the applicant] in custody and to subsequently extend his detention were in accordance with the law."
24. On 26 March 2003 the District Court further extended the applicant's detention until 28 June 2003. In particular, the court noted:

"The preventive measure in the form of detention imposed earlier on the defendant was lawful and justified. At the present time it is still necessary to detain [the applicant] as the circumstances justifying his placement in custody have not ceased to exist."
25. On 3 April 2003 the Regional Court upheld the decision of 26 March 2003 on appeal.

26. On 23 April 2003, for an unknown reason, the applicant was not transported to the courthouse and his counsel did not appear in court. The District Court adjourned the hearing.

27. On 6 May 2003 the District Court commissioned a new comprehensive forensic medical examination of the victim.

28. On 25 June 2003 the District Court ordered the applicant's release on an undertaking not to leave town. The court noted that the proceedings had been stayed pending two expert examinations, that the investigation had been completed and the victim and all witnesses had been questioned. It further noted that the applicant had a permanent place of residence and employment and could not interfere with the proper administration of justice. On 8 July 2003 the Regional Court upheld the decision of 25 June 2003 on appeal.

29. On 26 August 2003 the District Court granted the prosecutor's request for a forensic psychiatric examination of the victim and stayed the proceedings, which were resumed on 18 December 2003.

30. On 16 June 2004 the District Court found the applicant guilty of sexual assault of a minor and sentenced him to eight years' imprisonment. The applicant was placed in custody on the same day. According to the Government, the trial comprised nineteen hearings. Eight of them were adjourned because of the witnesses' failure to appear in court.

31. On 14 October 2004 the Regional Court upheld the applicant's conviction on appeal.

(c) Supervisory review of the applicant's conviction and the third trial
32. On 21 March 2006 the Presidium of the Regional Court quashed the applicant's conviction by way of supervisory review and remitted the case to the trial court for fresh consideration. The applicant was released on an undertaking not to leave town. In particular, the court indicated as follows:

"The [trial] court failed to comply with the law requiring objective consideration of the case... [and] found the applicant guilty on the basis of assumptions. The time and place of the crime as established by the court are a supposition (evening of 29 January in a flat at an unidentified address).

The court's findings are not supported by the evidence examined at the trial. It failed to take into account circumstances which could have been decisive for the findings with regard to the applicant's guilt."
33. Following the receipt of the case file, on 26 April 2006 the District Court scheduled the trial for 10 May 2006. According to the Government, the District Court held at least twenty-seven hearings. Thirteen hearings were adjourned because of the witnesses' failure to appear in court.

34. On 14 June 2007 the District Court adjourned the hearing owing to the illness of the applicant's counsel. On 2 and 23 July 2007 the hearings were adjourned since the prosecutor and the applicant's counsel were on vacation.

35. On 10 December 2007 the District Court acquitted the applicant. As regards the confession written by the applicant on 30 January 2002, the court accepted his explanation that it had been dictated to him by the police officers and dismissed it as inadmissible evidence. The court further noted that the applicant's version of the events in that regard had been corroborated by other evidence examined by the court.

36. According to the Government, on 19 December 2007 the Regional Court upheld the applicant's acquittal on appeal.

3. Investigation into the applicant's allegations
of ill-treatment in police custody
37. On 31 January 2002 the applicant was questioned by investigator E. in connection with the criminal case against him. The applicant refused to answer her questions in the absence of a lawyer and informed her that the police officers had beaten and tortured him to make him confess.

38. On 1 February 2002 the applicant met the district prosecutor Ger. The prosecutor allegedly refused to accept the applicant's written statement concerning the ill-treatment and advised him to submit it to the investigator in charge of the criminal case against him. The investigator agreed to take the statement only on 5 February 2002. On 7 February 2002 the applicant reiterated his allegations during questioning in the