CEDH · CASELAW;COMMUNICATEDCASES;ENG — 14 janvier 2014

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s72EB7DC5 { margin-top:18pt; margin-bottom:0pt; text-align:center } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .sA36B60A1 { font-family:Arial; font-style:italic } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s6C3B0BAF { margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt }     Communicated on 14 January 2014   FIRST SECTION Application no. 35012/10 Rizvan Tauzovich ABDULKHANOV against Russia lodged on 9 June 2010 STATEMENT OF FACTS   The applicant, Mr Rizvan Tauzovich Abdulkhanov, is a Russian national, who was born in 1974 and who is currently serving a sentence of imprisonment in correctional colony IK-29 in Perm Region. He is represented before the Court by Mr Igor Kalyapin, Ms Olga Sadovskaya and Mr   Anton Ryzhov, lawyers of an NGO “Committee against torture” operating in the town of Nizhniy Novgorod. The facts of the case, as submitted by the applicant, may be summarised as follows. A.     Events of December 2006, leading to the applicant’s disability During the night of 4 to 5 December 2006 the applicant was at home when he heard a noise. The applicant went outside and, having heard that the noise was coming from his father’s courtyard, headed there. As soon as the applicant went outside the gates of his house he heard someone saying: “That’s him” followed by a burst of sub-machine gunfire. He fell down and was approached by several armed men. He heard someone saying: “Who was firing? Why? Go pick him up, we’ll take him to the hospital.” Then the applicant lost consciousness. When the applicant came to his senses he found himself in reanimation unit of the 9 th clinical hospital of Grozny (9-ая клиническая городская больница г. Грозного) with six gunshot wounds. From 5   December 2006 to 2   February 2007 the applicant stayed at that hospital with diagnosis of perforating gunshot wound of abdomen with injury to large and small intestines, mesocolon, 3-5 th lumbar vertebra, hemoperitoneum, vast retroperitoneal hematoma; perforating gunshot wounds of right thigh with injury to femoral vein and spermatic cord; perforating nonpenetrating back wound; 4th degree shock. The applicant underwent three surgeries, ‒ on 5   December, 7   December and 24   December 2006. Subsequent treatment was recommended in a specialized neurosurgical hospital, unavailable in the Chechen Republic. The applicant alleged that it was not until 2   February 2007 that he was discharged from the 9 th clinical hospital of Grozny and allowed to leave the Chechen Republic to seek the required specialised treatment. From 12 February to 15 February 2007 the applicant was examined at neurosurgical unit of Stavropol Regional Clinical Centre (Ставропольский краевой клинический центр) , from where he was directed at Moscow Institute of Surgery of V.V. Vishnevskiy ( институт хирургии имени В.В.   Вишневского ). On 8 October 2007 the applicant received second-degree disability status. From 17 March to 25 April 2008 the applicant was treated at Moscow Institute of Surgery of V.V. Vishnevskiy, where on 3 April 2008 he underwent another surgery. On 25 July 2009 the applicant was diagnosed with chronic posttraumatic stress disorder. B.     Official investigation and applicant’s conviction On 4 December 2006 the head of Groznenskiy District Department of the Interior (“ROVD”), Baskhanov, issued a mission order (боевое распоряжение) for police officers Kaimov, Khamzayev, Aydamirov and Govdayev to carry out an address check (адресная проверка) at 328   Stepnaya Street in the village of Pobedinskoye, Groznenskiy District, on 4-5   December 2006. According to a report drafted by an unidentified police officer, during the check the applicant jumped out of the house and attempted to flee through the back entrance. Having seen the police officers, he allegedly made three pistol-shots in their direction. On 5 December 2006 an investigator of the investigations unit of the Groznenskiy District Department of the Interior examined the crime scene. He disclosed and seized a pistol with nine cartridges, a charger, ten shells of two different calibers, a bullet, four hand-made grenades, a radio station, an electric contactor and a pistol holster. The pistol, allegedly belonging to the applicant, was subjected to an expert examination. On 8 December 2006 the investigator questioned police officers Kaimov, Khamzayev and Govdayev who submitted that on 5 December 2006 at approximately 2.30 a.m. they participated in an address check at 328   Stepnaya Street in the village of Pobedinskoye, Groznenskiy District. They were all armed. They were instructed that the applicant was armed and could show armed resistance. Having arrived at the above address the officers blocked the back entrance of the house. They saw a man running in their direction. In the moonlight they recognized the applicant and police officer Khamzayev yelled: “Police, stop, [I’m] going to fire!” In reply to the above words the applicant made several pistol shots in the direction of the police officers while continuing to move. He was about five to six meters away from the police officers. To repulse the threat, police officer Khamzayev made several shots with his sub-machine gunfire in the applicant’s direction. The applicant fell down. Having run up to the applicant, the police officers saw a pistol near him. Then they were approached by other police officers and explained what had happened. After having provided the applicant with first aid, they took him to the hospital. On 9 December 2006 an expert examination of the bullet and the shells discovered on the crime scene was carried out. On the same day the investigator sent an enquiry about the applicant to the Federal Security Service (“FSB”) of the Chechen Republic. In its reply, the FSB informed the investigator that, according to its information, the applicant was a member of an unlawful paramilitary organisation. On 13 December 2006 the investigator questioned the head of Groznenskiy ROVD Baskhanov whose submissions were similar to those made by Kaimov, Khamzayev and Govdayev. In addition, he submitted that he and other police officers saw the applicant on the ground with a pistol with several cartridges in the charger. He took the pistol off the ground, because he could not leave it at the crime scene as the applicant’s relatives and neighbours were starting to gather and as it was necessary to take the applicant to the hospital. On the same day he handed the pistol in to the investigations unit of the Groznenskiy District Department of the Interior. The applicant was not questioned as he was in the reanimation unit of the hospital. On 15 December 2006 the material of the inquiry was sent from Groznenskiy ROVD to Groznenskiy District Prosecutor’s Office. On 18 January 2007 criminal proceedings were instituted against the applicant under Articles 222 § 1 and 317 of the Criminal Code (unlawful firearms trafficking and encroachment on the life of an officer of a law ‑ enforcement body respectively). On 19 January 2007 investigator N. examined the objects discovered on the crime scene and joined them to the case-file material. On 22 January 2007 the investigator appointed a ballistic expert examination. On 23 January 2007 the expert report was drawn up. On 24 January 2007 the investigator questioned Baskhanov, who submitted, inter alia, that all the officers participating in the events of 4 ‑ 5   December 2006 were armed with sub-machine gunfires and pistols. On the same day the investigator questioned Aydamirov, whose statements were similar to those made by other police officers. Khamzayev was granted victim status and questioned. The applicant’s attending medical doctor was questioned. On 25 January 2007 the investigator examined home-made grenades seized from the crime scene. On the same day he appointed a technical expert examination of the explosives and a medical examination of the applicant. On 30 January 2007 the investigator received a certificate on the examination of the shells. On 1 February 2007 the applicant’s medical examination was completed. He had multiple gunshot wounds of the body and lower limbs with injury of the intestines and the spine. On 21 February 2007 the investigator received the results of the expert examination of the grenades. On 10 March and 13 March 2007 respectively the investigator questioned police officers Kaimov and Govdayev. On 18 March 2007 the investigation was suspended due to the applicant’s medical treatment. It appears that no investigative actions were carried out until February 2008. On 28 February 2008 the Groznenskiy District Deputy Prosecutor issued a demand (требование) on elimination of violations of federal law committed in the course of the pre-trial investigation. He indicated, in particular, that not all the witnesses had been questioned and not all expert examinations had been conducted. There was no information in the case-file material as to the applicant’s medical treatment for the past six months. On 14 March 2008 the pre-trial investigation was resumed. On 31 March 2008 the investigator questioned the applicant’s brother, who submitted that when the applicant had been ordered to stop he had done so and said “[I] stopped”, but at the same moment the police had opened fire. He further submitted that his brother had not been armed. On 2 April 2008 the case-file material was transferred to investigator L. On 14 April 2008 the investigation was again suspended due to the applicant’s medical treatment. On 13 May 2008 the Deputy Prosecutor of the Chechen Republic issued a demand on elimination of violations of federal law committed in the course of the pre-trial investigation. It was indicated that not all witnesses and eyewitnesses had been identified and that the applicant’s family members had not been questioned. On 19 May 2008 the pre-trial investigation was resumed. On 22 May 2008 the investigator questioned police officers Molozayev and Murtazaliyev, who submitted only some general information concerning the events of 4-5   December 2006. On 3 June 2008 the case-file material was transferred to investigator Ch. On 11 June 2008 the investigator questioned the applicant and once again the applicant’s brother. On 17 June 2008 the investigation was again suspended. On 18 June 2008, however, the above decision was cancelled. The case-file material was transferred back to investigator L. On 13 July 2008 the applicant was informed about the appointment on 25   January 2007 of a technical expert examination of the explosives and its results. On 19 July 2008 the investigation was again suspended. On 6 August 2008 the above decision was cancelled. The case-file material was transferred back to investigator L. On 15 August 2008 the investigator informed Khamzayev about the report of the applicant’s medical examination of 1   February 2007. On 7 September 2008 the investigation was again suspended. On 15 October 2008 the above decision was cancelled. On 5 November 2008 the case-file material was transferred to investigator K. On 13 November 2008 the investigation was yet again suspended. On 15 December 2008 the investigation was resumed. The case-file material was transferred to investigator Kol. On 19 December 2008 the investigator sent an inquiry to the head of the remand prison IZ-20/1 on whether the applicant’s state of health was compatible with his detention in remand prison. On 23 December 2008 he received a negative reply. On 20 December and 23 December 2008 respectively the investigator questioned the applicant’s neighbours Akhmasa Yusupov and Adam Yusupov, who submitted that during the night of 4 to 5   December 2006 they had heard a burst of sub-machine gunfire, but no pistol shots. On 4 January 2009 the investigator questioned the applicant’s brother. On 11 January 2009 the applicant asked the investigator to allow him to travel outside the Chechen Republic for subsequent medical treatment. On the same day the investigator requested a medical expert examination of the applicant, having asked the expert whether the applicant needed medical treatment outside the Chechen Republic. The expert arrived at the conclusion that the applicant indeed needed specialised treatment in Moscow and St Petersbourg hospitals. On 12 January 2009 the investigation was suspended. On 5 February 2009 it was again resumed. On 16 February 2009 the case-file material was transferred to investigator I. On 17 February 2009 the investigator carried out a confrontation between witnesses Govdayev and Kaimov, whose statements were slightly different. They submitted that they could have forgotten something due to the remoteness of the events in question. On 18 February 2009 the investigator verified their statements at the scene of the crime. The investigator further established that the owner of the house situated next to the applicant’s house was the applicant’s father. On 23 February 2009 the investigator questioned the applicant’s father. On 4 March 2009 the investigator questioned the applicant as a suspect. On 11 March 2009 the investigator refused to institute criminal proceedings against the police officers, having found that the use of arms against the applicant had been justified. On the same day the investigator took a decision to discontinue the applicant’s criminal prosecution under Article 317 of the Criminal Code (encroachment on the life of an officer of a law-enforcement body), having qualified the applicant’s actions under Article 318 § 2 of the Criminal Code (violence against representative of authority). The applicant was questioned as an accused. The applicant submitted that on 5 December 2006 at approximately 2 a.m. he was woken up by a noise coming from metal entrance gates to the house, then he heard voices and a dog barking at the backyard. He went outside and headed to the backyard. When he opened a wooden wicket and walked several steps he heard someone crying out in Chechen: “That’s him”, followed by a burst of sub-machine gunfire in his direction. He fell down and lost consciousness within several seconds. He came to his senses in about fifteen days in city clinical hospital no. 9. He claimed to have not had any arms on him at the events in question. The pistol with cartridges, homemade grenades and other objects allegedly discovered in his courtyard had not belonged to him. He was unaware how they had appeared there. On 16 March 2009 the applicant was formally charged under Articles   222   §   1, 208   §   2 and 318   §   2 of the Criminal Code (unlawful firearms trafficking, participation in unlawful paramilitary organisation and violence against representative of authority). On 1 July 2009 the applicant’s lawyer challenged the lawfulness of the refusal to institute criminal proceedings against the police officers before the Prosecutor of the Chechen Republic. On 31 July 2009 the applicant was informed that the decision of 11   March 2009 had been taken unlawfully on the basis of an incomplete inquiry and that it was to be cancelled. On 14 August and 26 August 2009 the applicant’s lawyer addressed the head of Groznenskiy Inter-District Criminal Investigations Department of the Prosecutor’s Office of the Chechen Republic and the Prosecutor of the Chechen Republic respectively to enquire whether the decision of 11   March 2009 had been cancelled. On 19 August and 14 September 2009 respectively he was informed that the decision of 11 March 2009 had not been cancelled. In the meantime, on 11 September 2009 the applicant complained to Groznenskiy Inter-District Criminal Investigations Department that in the period between 5 December 2006 and 2 February 2007 the police had prevented him from seeking specialised medical assistance outside the Chechen Republic which resulted in his disability. On 14 September 2009 he received a reply to the effect that the circumstances complained of would be examined during the trial against the applicant. On 9 October and 15 October 2009 the applicant’s lawyer requested the court to order an inquiry in respect of the police officers who applied arms to the applicant and prevented him from receiving specialised medical assistance. On 13 October 2009 the applicant’s lawyer again addressed the head of Groznenskiy Inter-District Criminal Investigations Department of the Prosecutor’s Office of the Chechen Republic requesting that the decision of 11   March 2009 be cancelled. On 16 October 2009 the applicant’s lawyer was informed that no procedural decision could be taken with regard to his complaint since the criminal case against the applicant had been transmitted to the court. The applicant’s lawyer challenged the above reply before the Staropromyslovskiy District Court of Grozny. In the meantime, on 18 November 2009 Groznenskiy District Court of the Chechen Republic convicted the applicant under Articles 208   §   2, 318   §   2 and 222   §   1 of the Criminal Code and sentenced him to five years six months’ imprisonment. On the same day Groznenskiy District Court rendered a separate ruling (частное определение) mentioning various defects of the pre-trial investigation: “During the pre-trial investigation of the case in respect of [the applicant], particularly at the initial stage, the investigator violated the requirements of criminal procedural law, namely the time-limits for pre-trial investigation set out in Article   162 of the Criminal Procedure Code, the rules for suspension of pre-trial investigation (Article   208 of the Criminal Procedure Code), the rules of collecting the evidence (Article   86 of the Criminal Procedure Code). Specifically, the pre-trial investigation was repeatedly suspended (on 18   March 2007, 14   April 2008, 17   June 2008, 19   July 2008, 7   September 2008, 13   November 2008 and 12   January 2009) in violation of Article 208 of the Criminal Procedure Code on far-fetched grounds. The case was transferred from one investigator to another, and in the period between January 2007 and February 2009 the investigative actions had been carried out occasionally. [The applicant] had been questioned only on 23   June 2008, that is one-and-a-half years after the institution of the criminal proceedings. The pre-trial investigation body had not taken the measures for securing the evidence obtained and for obtaining new evidence. Specifically, in the course of the investigation [the investigator failed to question] investigator K. of the Groznenskiy District Department of the Interior and [expert] G., who examined the crime scene, attesting witnesses A. and El. who participated in the examination of the crime scene at which were seized arms, ammunitions, homemade explosives and other objects typical for a member of an unlawful paramilitary organisation. This work had to be done by the court almost three years after [the events in question] at the request of the parties, which affected the length of the examination of the case. The investigators had also not conducted a number of criminalistic expert examinations [so as to] discover the traces of the shot on [the applicant’s] body, [the latter’s] fingerprints on the weapons seized. These shortcomings, which had been impossible to remedy during the trial [...] had resulted in multiple complaints and requests from the applicant and his representative, who had made attempts to put to doubt the evidence which had been used as a basis for [the applicant’s] conviction. The above-mentioned violations demonstrate careless attitude on the part of the investigators in fulfillment of their duties at the initial stage of the pre-trial investigation [...] and lack of sufficient control over the course of the investigation by the head of the criminal investigations department.” On 30 November 2009 the Staropromyslovskiy District Court of Grozny refused to examine the complaint against the reply of 16 October 2009, having indicated that the issues raised in the complaint could be addressed by the court dealing with the criminal case against the applicant. On 23 December 2009 the Supreme Court of the Chechen Republic upheld the applicant’s conviction on appeal. On 30 January 2010 the applicant’s lawyer addressed the head of Groznenskiy Inter-District Criminal Investigations Department of the Prosecutor’s Office of the Chechen Republic requesting a separate inquiry in respect of police officers who kept the applicant in city clinical hospital no. 9 and prevented him from receiving timely specialised medical assistance, and to cancel the decision of 11 March 2009. The applicant received no reply to the above application. On 10 February 2010 the Supreme Court of the Chechen Republic upheld the above decision of 30 November 2009 on appeal. COMPLAINTS 1.     The applicant complains under Article 2 of the Convention about the attack on him of 5 December 2006 and the failure of the domestic authorities to carry out an effective investigation. 2.     The applicant complains under Article 3 that between 5 December 2006 and 2   February 2007 the police unlawfully kept him in clinical hospital no.   9 of Grozny and prevented him from receiving required specialised medical assistance outside the Chechen Republic which resulted in his disability. He further complains under the same head that the domestic authorities had been unwilling to adequately investigate the matter. 3.     Finally, the applicant complains under Article 13 about lack of effective domestic remedies against the alleged violations under Articles   2 and 3. QUESTIONS TO THE PARTIES   1.     Was the use of force applied by the police officers to the applicant on 5   December 2006 of such a nature or degree as to bring the facts within the scope of the safeguard afforded by Article 2 of the Convention (see Makaratzis v. Greece [GC], no. 50385/99, §   49-55, ECHR 2004 ‑ XI, and Sašo Gorgiev v. “the former Yugoslav Republic of Macedonia” , no.   49382/06, §§   36-38, ECHR 2012 (extracts))?   2.     In the affirmative, has the applicant’s right to life, ensured by Article   2 of the Convention, been violated in the present case? In particular, was it absolutely necessary for the purposes of Article 2 § 2 to resort to a use of force which threatened the applicant’s life?   Having regard to the procedural protection of the right to life (see Salman v.   Turkey [GC], no. 21986/93, §   104, ECHR 2000-VII), was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention?   3.     In the negative, has the applicant been subjected to torture, or inhuman or degrading treatment at the hands of the police on 5 December 2006, in breach of Article 3 of the Convention?   Having regard to the procedural protection from severe ill-treatment (see Labita v. Italy [GC], no. 26772/95, §   131, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?   4.     As regards the applicant’s allegedly forced retention in the 9 th clinical hospital of Grozny in the period between 24   December 2006 and 2   February 2007 when he was in need of specialised medical assistance unavailable in the Chechen Republic, has the applicant been subjected to torture or to inhuman or degrading treatment, in breach of Article 3 of the Convention? The parties are invited to clarify the following: (a)     The Government are invited to submit a copy of the decision (if any) on the basis of which the applicant was allegedly forcedly kept in the 9 th clinical hospital of Grozny. (b)     When has it become clear that the applicant was in need of specialised neurosurgical assistance, unavailable in the Chechen Republic? The parties are requested to submit any relevant documents. (c)     Did the applicant undergo any surgical treatment in Stavropol Regional Clinical Centre during his stay there between 12   February and 15   February 2007? The parties are requested to submit any relevant documents. (d)     Did the applicant apply to the Moscow Institute of Surgery of V.V. Vishnevskiy for specialised neurosurgical treatment in March 2008 for the first time? What prevented the applicant from doing so in the period between February 2007, when he had been directed there by Stavropol Regional Clinical Centre, and March 2008?   Having regard to the procedural protection from severe ill-treatment ( Labita , cited above, § 131), was the investigation into the incidence of the applicant’s allegedly forced retention in the 9 th clinical hospital of Grozny by the domestic authorities in breach of Article 3 of the Convention?   5.     Has the applicant had at his disposal effective domestic remedies for his complaints under Articles 2 and 3 of the Convention, as required by Article   13 of the Convention?