Постановление Европейского суда по правам человека от 13.07.2010 «Дело Лопата (lopata) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
THIRD SECTION
CASE OF LOPATA v. RUSSIA
(Application No. 72250/01)
JUDGMENT*
(Strasbourg, 13.VII.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 Lopata v. Russia,

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

Josep Casadevall, President,

Corneliu {Birsan}*,

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

{Bostjan M. Zupancic},

Anatoly Kovler,

Alvina Gyulumyan,

Egbert Myjer,

Luis {Lopez} Guerra, judges,

and Santiago Quesada, Section Registrar,

Having deliberated in private on 22 June 2010,

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

PROCEDURE
1. The case originated in an application (No. 72250/01) 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 Aleksandr Konstantinovich Lopata ("the applicant"), on 26 March 2001.

2. The applicant was represented by Ms D. Vedernikova and Mr P. Leach, lawyers with the European Human Rights Advocacy Centre (EHRAC). 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 he had been subjected to torture and convicted on the basis of a forced confession, that the investigation of the torture had not been effective and that the authorities had interfered with his right of individual petition.

4. By a decision of 3 May 2005, the Court declared the application partly admissible.

5. The applicant and the Government each filed further written observations (Rule 59 § 1). The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine), the parties replied in writing to each other's observations.

THE FACTS
I. The circumstances of the case
6. The applicant was born in 1963 and resided before his arrest in the village of Akhunovo, in the Bashkortostan Republic.

A. The applicant's arrest and placement in custody
1. The applicant's alleged 14-day detention in August 2000
7. On 3 August 2000 the applicant was arrested along with several other village residents and placed in the temporary detention centre of the Uchaly police station (ИВС Учалинского ГРОВД, "the police station"). He was allegedly beaten and pressurised to confess to the murder of a certain Mr D. in the village of Akhunovo. The applicant remained in detention for fourteen days; the legal basis for his detention remains unclear. After fourteen days of detention he was released.

2. The applicant's arrest in September 2000
8. On 5 September 2000 the applicant was again arrested and taken to the police station. On the same day he was questioned by Kh.A., an investigator at the Uchaly district prosecutor's office ("the district prosecutor's office"), V.G., a senior operational officer of the Ministry of the Interior of the Bashkortostan Republic, Ya.M., the deputy head of the police station, and I.M., head of the criminal police. According to the applicant, throughout the interview they put pressure on him to confess to D.'s murder. In particular, V.G. explained to him in detail why he had killed D, saying that the applicant had committed the crime because he had found his daughter and D. making love. The applicant denied having murdered D.

9. According to the Government, on 5 September 2000 Kh.A. formally explained to the applicant the rights of an accused, including the right to free legal assistance, and assigned a certain Ur. to represent him. A copy of the related record produced by the Government is signed by Kh.A. and does not bear the signature of either the applicant or Ur.

10. On 6 September 2000 the applicant retained private defence counsel, A.A., to represent him. It appears that on that day and on the following day she visited him in the police station.

11. On 8 September 2000 Kh.A., who was in charge of the investigation into D.'s murder, authorised the applicant's detention on remand. The applicant was accused of murdering D., a friend of the applicant's daughter, on the night of 29 - 30 July 2000.

B. Alleged ill-treatment of the applicant
1. The applicant's description
12. In a six-page typed and undated attachment to the supervisory review application lodged with the Supreme Court of the Russian Federation in April 2001, the applicant presented the following description of the ill-treatment to which he had allegedly been subjected on 8 - 9 September 2000. His submissions may be summarised as follows.

13. At about 3 p.m. on 8 September 2000 the applicant was brought to an office in the Uchaly police station where V.G. and Ya.M. were already present. Kh.A. was not there. VG. and Ya.M. pressurised the applicant to write a voluntary "confession statement" (явка с повинной) and promised in exchange to ask the investigator to reclassify the applicant's offence as involuntary manslaughter in a fit of passion. The applicant did not admit to being guilty and refused to make any statements to that effect.

14. Ya.M. and V.G. started beating the applicant. They hit his head against the wall, twisted his arms, punched his neck and kicked him in the groin. The beatings alternated with admonitions to him to confess. On three occasions the applicant was placed with his hands against the wall, legs wide apart, and V.G. hit his ankles so that the applicant's legs slid apart and the applicant fell. The applicant refused to confess and told the police officers that he would not tell them anything in the absence of his lawyer, which triggered a new series of beatings. The applicant was then taken back to his cell for a respite.

15. At about 9 p.m. R.Kh., deputy head of the criminal police, took the applicant from his cell to I.M.'s office on the second floor. Officers Ya.M. and V.G. were in the room and R.Kh. stayed outside. The applicant was shown a confession statement written by someone else and was ordered to confess too. After he refused, police officers switched on the television and started punching him in the face and kicking his ankles. This lasted for approximately twenty minutes, then V.G., using the remote control unit, set the television to switch on in one hour; this signalled an hour-long pause in the beatings. The applicant was handcuffed and taken back to the cell by R.Kh. who had waited outside.

16. An hour later the applicant was taken back to the office. This time I.M. joined V.G. and I.M., while R.Kh. stayed outside. The applicant refused to write a confession statement. The officers then turned the applicant to face the wall, took a truncheon out of a cupboard, pulled the applicant's trousers down and threatened to rape the applicant with the truncheon. Once the applicant lowered his arms to pull his trousers up, he received a series of truncheon blows to his head, back and legs. He fell and broke his lip against the cupboard. After a series of punches and kicks the officers set the timer for one hour and I.M. placed the applicant in the cell, having hit his head against the cell door.

17. When the applicant was brought back again, the officers were drinking beer and offered one to the applicant. The applicant had a drink and then he was sent back to the cell to "think about [his] confession".

18. Later on, the applicant was taken out of the cell several times and led to different offices where Ya.M., I.M., V.G. and R.Kh., taking turns, tortured him in various ways. The applicant's handcuffed hands were twisted so that he strangled himself, and he received strong blows to his left ear. In particular, V.G. put his hand on the applicant's right ear and with another hand started punching him, with force, on the left ear. After the third punch the applicant felt liquid flowing out of his left ear.

19. At about 5 a.m. on 9 September 2000 police officers escorted the applicant to the investigator's office in the centre and told him to write down what he had been doing on 29 July 2000. It appears that the applicant did something wrong and the officers stuffed the "spoiled" sheet of paper in his mouth and twisted his limbs in all directions.

20. Finally, the applicant gave in and wrote a confession statement along the lines described to him by V.G. during the first interrogation on 5 September 2000. The officers read the statement and continued to beat him to get a more detailed account. The applicant wrote that at about 1.30 a.m. on 30 July 2000 he had gone out to look for his daughter and discovered her having sex with a man, his daughter lying on the ground under the man. The applicant had taken a log, hit the man on the head and had then sent his daughter back home. The applicant had not been able to hide the body immediately because his scooter had been broken.

21. On 9 September 2000 at about 6.30 a.m. the applicant was escorted to the cell. On the same day at 11 a.m. Ya.M. and V.G. woke the applicant up and told him that he would be transported to a detention facility in Ufa. He objected to the trip; his right ear was blocked and his left ear oozed blood and other fluids. At about 4 p.m. Kh.A. called the applicant and asked him whether he was ready to testify. The applicant refused to speak without his counsel, A.A. The investigator told the applicant that it was complicated to find the applicant's lawyer because it was Saturday. The applicant was escorted back to the cell.

22. On 10 September 2000 the applicant stayed in the cell.

23. On 11 September 2000 I.M., V.G. and the director of the temporary detention centre took the applicant in a private car, a light coloured Zhiguli, to remand centre SI-1/2 of Beloretsk. The applicant was not examined by a medical officer and was placed directly in cell No. 13k, from which he was transferred to cell No. 43k. He remained there for three days. Three days later he was placed in cell No. 30k. According to the applicant, he was taken to the remand centre in a private car in order to hide his injuries.

24. The applicant's description also gave further details on the layout of the rooms, doors, furniture and objects in the police station where the ill-treatment allegedly took place.

25. In his application form to the Court of 8 June 2001 the applicant gave a similar, albeit more concise, description of the treatment allegedly inflicted on him in the police station.

2. Relevant medical documents
(a) The applicant's medical record
26. The copy of the applicant's medical record produced by the Government reads, in so far as relevant:

"...11 September [2000]. Complaints about pain in the left acoustic meatus...

Cutaneous coverings: clean.

Underwent delousing.

State [of health] satisfactory.

Ds[diagnosis]: acute chronic otitis on the left [side] [обострение хронического отита слева]...

...

25 October 2001... The left ear does not hear from a distance of 5 m[etres].

Ds: deafness in the left ear."
(b) Forensic medical report No. 1060 of 18 September 2000
27. According to forensic report No. 1060 dated 18 September 2000 and issued following investigator Kh.A.'s request for the applicant's medical examination (see below), on 14 September 2000 expert G. examined the applicant in the presence of A.M. with a view to establishing whether the applicant had any injuries. The report, in its relevant part, reads:

"...present during the examination: convoy [officer] A.M...

Examination started 14 September 2000.

Examination finished 18 September 2000.

...

Circumstances of the case: ...from the decision ordering the examination it follows that [the applicant] submitted that police officers had applied physical force to him.

Complaints: about pain in the left ear.

Objectively: at the time of examination no bodily injuries established....

Conclusions
At the time of examination no bodily injuries were established, thus it is impossible to comment on the degree of damage to health..."
(c) Documents concerning the applicant's treatment in the Uchaly town hospital
28. On 21 September 2000 the applicant's lawyer complained to the district prosecutor's office that the applicant had not received treatment for pain in his left ear. On the following day the district prosecutor ordered the applicant's immediate transfer to the Uchaly town hospital for examination by an otolaryngologist and eventual treatment.

29. On 26 September 2000 the applicant's lawyer requested the town hospital to provide her with all relevant information and medical records in connection with the treatment of the applicant's allegedly broken eardrum, with a view to submitting those documents to the court. In particular, she asked the hospital to indicate the exact diagnosis, the treatment received and the consequences of the disease for the applicant's health.

30. In an undated reply the hospital's head doctor informed the applicant's lawyer that the applicant had been examined by an otolaryngologist who had diagnosed him with acute suppurative left-side "tubotympo-palpitis" [туботимпопальпит] and otitis media. The letter further stated that in order to provide further information, in particular, on the duration of the treatment and the consequences of the diseases for the applicant's health, he needed to be examined by the otolaryngologist in person.

(d) Medical certificate of the Akhunovo village hospital
31. According to a medical certificate of 7 February 2005 from the Akhunovo village hospital, the applicant did not apply to the hospital for medical assistance in the period from 1997 to 2000.

(e) Certificate of the head of colony UYe-394/3
32. A certificate from the head of colony UYe-394/3 Mr M., dated 8 January 2004 and compiled on the basis of the applicant's medical file, in so far as relevant, reads:

"Upon admission to facility [SI-2 in Beloretsk] on 11 September 2000 [the applicant] was examined by the duty medical officer, Sh., to whom the former complained about pain in his left ear; according to a record in the [applicant's] medical file, he was diagnosed with acute chronic otitis on the left [side]...; at the time of the examination cutaneous covering were clean and the state of health satisfactory. [The applicant's name]