EHRM, 15-05-2008, nr. 7178/03

On coming back from work to the colony living premises Mr Dedovskiy learnt from other detainees that the unit officers were performing a search. The officers wore camouflage and balaclava masks. During the search they hit Mr Dedovskiy on his back four or five times with a truncheon without any apparent reason and verbally assaulted him. On leaving the search premises he received more truncheon blows.

Later in the day, when going to dinner, Mr Dedovskiy, among other detainees, was told to squat down and waddle ‘duck-style’ to the canteen.

On coming back from work to the colony Mr Matrosov was told to submit to a strip-search. Mr P., the deputy colony director, divided all the detainees into groups of five and told them to run into the search room. Inside the room Mr Matrosov was ordered to look at the floor and comply with all instructions. Any delay in fulfilling an order was met with punches to the stomach and head. Once the strip-search was completed, Mr Matrosov was thrown half-naked out into the courtyard.

On coming back from work to the colony, the unit officers hit Mr Vidin on his head, neck and spine with a truncheon during their search. As a result, he could not work for an extended period of time owing to pain in his head and spine. He attempted to seek medical assistance but the medical department was closed.

Later in the day, when going to dinner, Mr Vidin, among others, was told to squat down and waddle to the canteen. On entering the canteen and while eating the unit officers hit him in the small of his back.

At the roll-call Mr Bukhman was beaten for having answered a unit officer's question too softly.

Mr Gorokhov was held in cell no. 1 of the strict-security department. At about 11 p.m. the unit officers arrived at the department and told the detainees to go out into the corridor and to remain spread-eagled against the wall. While they were standing there, the officers punched them; Mr Gorokhov received several blows to his liver and spine.

The unit officers hit Mr Dedovskiy, among other detainees, during the wake-up and on their way to the canteen and back. He was also hit while eating. The officers allegedly hit him with a truncheon, holding it by the light end in order to increase the pain.

At their work-place detainees, including Mr Matrosov, were told to form a line. The unit officers and Mr F., the security head, verbally assaulted them.

The unit officers allegedly told Mr Bukhman, when going to dinner, to carry another detainee on his back. Then they told all the detainees to go to the canteen in couples holding hands. Mr Bukhman was beaten for refusing to comply with these demands. After that a unit officer jumped on his back and told him to carry him to the canteen. Mr Bukhman's refusal provoked a new round of beatings.

On that day Mr Kolpakov, among other detainees, arrived at the colony to serve his sentence. The unit officers verbally and physically assaulted them on their way from the car to the punishment ward, where the newly arrived detainees were held. Mr F. and Mr T. of the colony administration were present. Later, Mr Kolpakov was taken out of the cell and beaten in the corridor with truncheons. Mr T. was again present.

The unit officers, accompanied by Mr F., came to the strict-security department where Mr Gorokhov was being held. The officers shouted at detainees as they were running out of the cells and punched them. Mr Gorokhov was hit and fell to the floor. Thereafter Mr Gorokhov and his cellmates were told to stand up, strip naked and lean spread-eagled against the wall. The officers punched and kicked them and also hit them with truncheons. Mr Gorokhov collapsed several times, but when he rose to his feet the beating resumed. The officers did not make any demands or claims of the detainees. As a consequence of that treatment, Mr Gorokhov had many bruises and abrasions, a headache and sharp pain in his liver.

Mr Pazleev was held in cell no. 1 of the strict-security department (the same cell as the sixth applicant, Mr Gorokhov). At about 3.30 p.m. on that day the unit officers opened the door of their cell and put a bench in front of it. The detainees were rudely told to jump over the bench into the corridor. Mr Pazleev stumbled over the bench and fell. The officers started to punch and kick him and to hit him with truncheons. In the corridor all the detainees were stripped naked and placed spread-eagled against the wall. Then the officers beat them. When Mr Pazleev fell, he was made to stand up again and the beating continued. The beatings lasted for approximately twenty minutes.

Once the unit officers had left, a doctor and a nurse entered the cell and asked whether there were any ‘bedridden patients’ (that is, who could no longer walk by themselves). Mr Pazleev complained about sharp pains, but received no assistance.

The report on the use of a rubber truncheon of 18 April 2001 indicated that ‘during a search… at 3.30 p.m. the convict Pazleev refused to go out of the living premises into the common corridor, stating that he would be present during the search, although it was the convict Terekhov who had been assigned to be present during the search. Pazleev was warned that in case of further disobedience, a truncheon would be used on him, but he continued to disobey’. The report was signed by two colony officials and Mr B.

On coming back from work at about 7 p.m. Mr Dedovskiy, among other detainees, was subjected to a strip-search. During the search the officers punched him and hit him with truncheons.

The report on the use of a rubber truncheon of 19 April 2001 indicated that ‘on returning from the work facility Angara, the convict Dedovskiy repeatedly disobeyed the lawful request of the colony administration… because he flatly refused to spread his arms and legs wide apart for a body search. He did not react to the repeated requests. Thereafter, a rubber truncheon… was used on him’. The report was signed by two colony officials and Mr B.

Mr Matrosov, among other detainees, was beaten during the strip-search upon their return from work.

On coming to the canteen, detainees, including Mr Matrosov, were ordered to form two lines and run into the canteen one at a time. The unit officers stood at the doors and hit detainees with truncheons. While eating, the detainees were told not to raise their eyes and Mr Matrosov, among others, received a truncheon blow to his neck. On leaving the canteen he received more blows to his back.

At the roll-call Mr Bukhman was told to step out of the line and say ‘ah’. He was beaten for saying it too softly. As a result of the beatings, Mr Bukhman had broken ribs. He applied to the medical department, where a doctor treated the area around the broken ribs with iodine.

The unit officers took Mr Kolpakov, among other detainees, out of the cell and into the corridor, where he was spread-eagled against the wall and beaten.

Mr Pazleev, among other detainees, was taken out of the cell into the corridor, where the unit officers punched and kicked them and also hit them with truncheons. Mr F. and Mr P., were also present, in an inebriated state.

At about 7.15 a.m. the unit officers, together with Mr F. and Mr T., arrived at the strict-security department where Mr Kolpakov had been transferred from the punishment ward on the previous night. All the detainees, including the fifth applicant, were told to run out of the cells into the corridor. The unit officers punched and kicked Mr Kolpakov and beat him with truncheons. He collapsed several times and finally fainted after a particularly strong blow to his head.

Mr Kolpakov alleges that he had brain concussion. In December 2001 he was diagnosed with traumatic psychopathy in prison hospital UT-389/9 MOB, which he believes to be a consequence of the beating on 20 April 2001.

The report on the use of a rubber truncheon of 20 April 2001 indicated that ‘the rubber truncheon was used because at the rouse at 7.15 a.m. the convict Kolpakov, along with other convicts, did not fulfil the get-up command. He flatly refused to proceed to the administrative premises to give a written explanation, and refused to give his name or to explain the reasons for his conduct’. The report was signed by two colony officials and Mr B.

The unit officers, this time accompanied by Mr T., came to the strict-security department, where Mr Gorokhov was being held. Mr Gorokhov and his cellmates were taken out into the corridor where the officers punched and kicked them and also hit them with truncheons. Thereafter he was allegedly refused medical assistance in the medical department of the colony.

The report on the use of a rubber truncheon of 20 April 2001 indicated that ‘the rubber truncheon was used because at the rouse… the convict Gorokhov did not get up. When ordered to get up and dress, he reacted reluctantly and failed to dress in accordance with the established form of dress. When told to change his clothes and assume the normal look, he did not react, but behaved rudely and tactlessly towards the officers’. The report was signed by two colony officials and Mr B.

Mr Pazleev, among other detainees, was taken out of the cell into the corridor, where the unit officers punched and kicked them and also hit them with truncheons. Mr F. and Mr P. were also present, in an inebriated state.

Article 3, as the Court has observed on many occasions, enshrines one of the fundamental values of democratic society. Even in the most difficult of circumstances, such as the fight against terrorism or crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim's behaviour (see Balogh v. Hungary, no. 47940/99, § 44, 20 July 2004, and Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV).

The Court has consistently stressed that the suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Measures depriving a person of his liberty may often involve such an element. In accordance with Article 3 of the Convention the State must ensure that a person is detained under conditions which are compatible with respect for his human dignity and that the manner and method of the execution of the measure do not subject him to distress or hardship exceeding the unavoidable level of suffering inherent in detention (see Kudła v. Poland [GC], no. 30210/96, §§ 92–94, ECHR 2000-XI).

In the context of detainees, the Court has emphasised that persons in custody are in a vulnerable position and that the authorities are under a duty to protect their physical well-being (see Tarariyeva v. Russia, no. 4353/03, § 73, ECHR 2006-… (extracts); Sarban v. Moldova, no. 3456/05, § 77, 4 October 2005; and Mouisel v. France, no. 67263/01, § 40, ECHR 2002-IX). In respect of a person deprived of his liberty, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the Convention (see Sheydayev v. Russia, no. 65859/01, § 59, 7 December 2006, and Ribitsch v. Austria, judgment of 4 December 1995, Series A no. 336, § 38).

The Court reiterates that where an individual raises an arguable claim that he has been seriously ill-treated in breach of Article 3, that provision, read in conjunction with the State's general duty under Article 1 of the Convention to ‘secure to everyone within their jurisdiction the rights and freedoms defined in … [the] Convention’, requires by implication that there should be an effective official investigation. An obligation to investigate ‘is not an obligation of result, but of means’: not every investigation should necessarily be successful or come to a conclusion which coincides with the claimant's account of events; however, it should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible. Thus, the investigation into serious allegations of ill-treatment must be thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions. They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence, and so on. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard (see, among many authorities, Mikheyev, cited above, § 107 et seq., and Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports 1998-VIII, § 102 et seq.)

The Court notes that the events of which the applicants complained had unfolded under the control of the authorities and with their full knowledge. The colony officials must have been aware of the magnitude of the beatings, which comprised more than sixty duly reported cases and probably many others that had gone unreported. Under these circumstances, the applicants had an arguable claim that they had been ill-treated and that the State officials were under an obligation to carry out an effective investigation.

The Court reiterates at the outset that, for an investigation into alleged ill-treatment by State agents to be effective, it must be prompt and expedient (see Mikheyev, cited above, § 109, with further references). In the present case criminal proceedings were instituted only one and a half months after the events at issue, following the Ombudsman's submission of the detainees' complaints to the regional prosecutor. In the period immediately following the events no attempts were made to conduct a medical examination of the detainees for injuries. This led, among other things, to the loss of possibilities for collecting medical evidence of the alleged ill-treatment.

On a more general level, the Court emphasises that whenever a number of detainees have been injured as a consequence of the special-forces operation in a remand prison, the State authorities are under a positive obligation under Article 3 to conduct a medical examination of inmates in a prompt and comprehensive manner (see Mironov v. Russia, no. 22625/02, §§ 57–64, 8 November 2007). There is no evidence in the instant case that a medical examination of the applicants was carried out at any time. The medical records produced by the Government attest to this. The Court notes with concern that the lack of any ‘objective’ evidence — such as medical reports could have been — was subsequently invoked as a ground for discontinuing the proceedings in respect of the complaints by three applicants and 143 other detainees (see paragraph 48 above).

Further, the Court considers that, by allowing the special-unit officers to cover their faces with balaclava masks and not requiring them to wear any distinctive signs on their clothing, the domestic authorities knowingly made futile any future attempts to have them identified by the victims. The impossibility for the victims to tell the identically clad rank-and-file unit officers apart was invoked as the main ground for discontinuing the criminal proceedings against those officers (see paragraph 47 above), whereas the proceedings against their commander Mr B. — the only person whose face had not been covered — were discontinued on the charge of abuse of power because he had not beaten anyone himself (see paragraph 49 above). Given that the reports on the use of rubber truncheons did not list the name of the officer who administered the blows, the Court finds that the domestic authorities deliberately created a situation of impunity in which any identification of the officers suspected of inflicting ill-treatment was impossible and an investigation inadequate.

The Court also finds that the applicants' right to participate effectively in the investigation was not secured. It transpires from both of the prosecutor's decisions of 21 and 25 September 2001 that the investigator had not heard the applicants or other victims in person and that he did not even consider mentioning their version of the events in the decisions. In fact, the decision of 25 September 2001, by which the proceedings were discontinued in respect of the complaints by three applicants and 143 other victims, contained solely the list of last names and one sentence (‘the investigation has not obtained any objective information…’) by way of justification for the decision not to investigate. Furthermore, as the Court has already found in its admissibility decision, there was no evidence, and none has been referred to by the Government, that copies of the prosecutor's decisions had been duly served on the applicants who had lodged complaints of ill-treatment. Thus, a copy of the decision of 25 September 2001 was enclosed for the first time with the Government's memorandum of 30 December 2004 and the applicants had not been previously aware of its contents.

Finally, the Court observes that the case against Mr B. went to trial but ended with his acquittal on the charge of professional misconduct. It reiterates in this connection that the acquittal by the domestic courts of the police officer suspected of inflicting ill-treatment cannot absolve the State of its responsibility under the Convention (see Çolak and Filizer v. Turkey, nos. 32578/96 and 32579/96, § 33, 8 January 2004, and Selmouni, cited above, § 87). The Court cannot but note the glaring contradictions in the findings of the domestic courts on the issue of Mr B.'s responsibility for the actions of his subordinates. Whereas the District Court acquitted Mr B. because he had exercised appropriate control over the lawfulness of their actions, the Regional Court exonerated him on the ground that he had not been able, or obliged, to control the conduct of officers in his absence. It is immaterial whether these discrepancies were due to poor preparation of the case by the prosecution or to the absence of established case-law in the matter. What is important for the Court is that they obviously thwarted any meaningful attempt to bring those responsible for the ill-treatment to account.

Having regard to the above failings of the Russian authorities, the Court finds that the investigation carried out into the applicants' allegations of ill-treatment was not thorough, adequate or efficient. There has accordingly been a violation of Article 3 of the Convention under its procedural limb.