Communicated on 5 November 2014

FOURTH SECTION

Application no. 8347/07 Murads BALAJEVS against Latvia lodged on 21 March 2007

STATEMENT OF FACTS

1. The applicant, Mr Murads Balajevs , is a Latvian national, who was born in 1966 and lives in Daugavpils .

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Ill-treatment

3. On 8 May 2006 escort officers of the State Police transported the applicant from the Central Prison ( Centrālcietums ) to the Riga Regional Court ( Rīgas apgabaltiesa ), where he was placed in a holding cell.

4. At around 11 a.m., the applicant, upon his request, was provided with medical assistance by ambulance employees.

5. At around 1.30 p.m., the applicant again asked that ambulance be called, which request was refused by an escort officer.

6. As the applicant was in pain, he continued to insist. At some point, the escort officer entered the holding cell. He kicked the applicant in the chest, as a result of which the applicant fell on the floor. While the applicant was trying to stand up, he received several other kicks. The applicant ’ s screaming was heard by other two escort officers who rushed to the cell. One of the officers while attempting to silence the applicant, made him sit on the floor, and kicked him several times on the back. Then they left.

7. Shortly thereafter ambulance arrived. The applicant was transported to the hospital of the Central Prison , where he was diagnosed with lumbar vertebrae fracture and left kidney contusion.

8. On 19 May 2006 the applicant was discharged from the hospital.

2 . First round of investigation into alleged ill-treatment

( a ) T he Internal Security Office of the State Police ( Valsts policijas Iekšējās drošības birojs )

9. On 2 June 2006 the Internal Security Office of the State Police commenced an investigation into the incident.

10. The investigator, J.M., found that on 8 May 2006, at around 1.30 p.m. the applicant, while asking for the second time that ambulance be called, had been cursing and hitting on the door of the holding cell. The escort officer, M.P., had decided to enter the cell in order to calm the applicant down. As M.P. had been entering the cell the applicant had attacked him by attempting to hit him with the hand. In order to prevent it, M.P. had put the applicant on the floor, using physical force and special combat technique in accordance with section 13(1)5) and 6) of the Law on Police ( likums „Par Policiju” ). It therefore emerged that the escort officers, M.P., R.T. and A.P. had used the f orce in compliance with section 13(1)6) of the Law.

11. The investigator, J.M., also noted that the applicant had been in the holding cell together with the witness , S.Å ., and other two persons. According to S.Å . the applicant had been taken to another cell and S. Å . had heard the applicant groaning. Thereafter ambulance had arrived.

12. While the expert ’ s report of 19 September 2006 indicated that the applicant had been diagnosed with the moderate injury of lumbar vertebrae fracture it was not excluded that it had been caused by the applicant ’ s falling against a hard object. That however corresponded to the officers ’ evidence.

13. J.M ., concluded that the officers ’ conduct did not disclose the elements of crime under section 317(2) of the Criminal Law ( Krimināllikums ) (exceeding official authority).

14. On those grounds, J.M., on 26 October 2006, closed the investigation.

( b ) Prosecution

15. The applicant appealed against the aforementioned decision at two levels of the Prosecution.

16. On 29 January 2007, the deputy chief prosecutor, S.D., quashed the impugned decision and, giving instructions on the investigative actions, remitted the case to the Internal Security Office of the State Police .

3 . Second round of investigation into alleged ill-treatment

( a ) T he Internal Security Office of the State Police

17. The Internal Security Office of the State Police carried out additional investigative actions.

18. It ordered a further expert ’ s report on the applicant ’ s injuries.

19. It also established that on 8 May 2006 the ambulance arrived for the second time at 2.06 p.m. The applicant had complained of the pain in the area of his left kidney as the officers had hit him there.

20. On 26 March 2007 the investigation was closed on the grounds that the use of force by the officers on the applicant had been lawful. A ccording to the expert ’ s report it was not excluded that the applicant could ha ve obtained the injuries prior to 8 May 2006. Also, it could have been possible for the applicant to move with the lumbar vertebrae fracture.

( b ) Prosecution

21. On 12 June 2007 the chief prosecutor, D.M., quashed the aforementioned decision and, giving instructions on the investigative actions, remitted the case to the Internal Security Office of the State Police .

22. On 19 May 2008 the prosecutor, K.C., wrote to the applicant that previous Prosecution instructions had not been complied with and that the case together with K.C. ’ s further instructions had been sent for the continuation of the investigation to the Internal Security Office of the State Police .

4 . Third round of investigation into alleged ill-treatment

( a ) T he Internal Security Office of the State Police

23. The Internal Security Office of the State Police carried out additional investigative actions.

24. It took a further statement of the witness, S.Š. It collected testimonies of certain other detainees escorted on the critical day, some of whom had heard a noise and screams that beating be stopped. Further, the expert was heard with regard to the applicant ’ s injuries.

25. On 24 April 2009, the investigator, J.M., closed the investigation.

26. She noted contradictions in the testimonies collected. In particular, the applicant had testified that he had been beaten in the cell by one officer. On the other hand, the witness, S.Å . had attested to having seen the applicant being beaten in the corridor by three to four officers. According to another detainee, V.J., the applicant had told him that he had been hit on the leg.

27. With regard to the lumbar vertebrae fracture, the investigator, J.M., referred to the expert ’ s evidence that this injury could have been caused by the applicant ’ s falling against a hard object. That, however, corresponded to the testimonies of the officers, M.P., R.T. and A.P.

28. J.M. therefore concluded that the applicant had not obtained the injuries established as a result of unlawful conduct by the officers. It had not been established that the use of force on the applicant had been unfounded.

( b ) Prosecution

29. On 29 May 2009 the prosecutor, K.C., upon the applicant ’ s appeal, affirmed the aforementioned decision.

30. In his decision K.C. noted that the force on the applicant had been used in compliance with section 13(1)6) of the Law on Police. It was impossible to determine when the injuries on the applicant had been caused. The officers ’ conduct did not reveal elements of crime under section 317(2) of the Criminal Law (exceeding official authority).

31. Lastly, K.C. found that the investigator had carried out all the investigative actions as instructed by the Prosecution. The long duration of the proceedings had been due to the lack of information on the location of many of the detainees who had been released.

32. An appeal lay to a higher prosecutor against this decision.

B. Relevant domestic law

1. Criminal Law

33. Section 317, criminalising the exceeding of official authority, has been noted in Bērziņš v. Latvia ( no. 25147/07 , § 58, 25 February 2014).

2 . Criminal Procedure Law ( Kriminālprocesa likums )

34. Section 37 sets out the authority of a prosecutor supervising an investigation (see Holodenko v. Latvia , no. 17215/07 , § 43, 2 July 2013).

35. According to section 337(2)2), a complaint about an investigator ’ s decision may be submitted to a supervising prosecutor. While under section 337(2)3) a complaint about a prosecutor ’ s decision may be lodged with a higher prosecutor (see Holodenko , cited above, § 44) .

3 . Law on the Police

36. Under section 13(1)5) and 6) a police employee has the right to use physical force and special combat techniques in order to restrain detained persons if they disobey or resists police employees, and in order to prevent non-compliance with the lawful requests of police employees made in the performance of their official duty for the preservation of public order.

37. Section 13(2), governing the use of physical force and special means, has been noted in Bērziņš (cited above, § 61).

COMPLAINT S

38. The applicant complains that the ill-treatment inflicted on him on 8 May 2006 on the premises of the Riga Regional Court by the three escort officers of the State Police was in breach of Article 3 of the Convention .

39. Referring to Articles 1, 3 and 13 of the Convention he claims that the investigation into his alleged ill-treatment was ineffective. The investigation was not thorough, diligent and impartial. It was unreasonably long. The applicant had had no injuries prior to his arrival to the courthouse. The police officers had not given a credible explanation as to how the applicant had obtained the injuries.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted all effective remedies with regard to his complaints under Article 3?

2. Having regard to the procedural protection from inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in to the incident of 8 May 2006, on the premises of the Riga Regional Court , by the domestic authorities in breach of Article 3 of the Convention?

Did the domestic authorities indicate that physical force had been applied to the applicant? If the answer to this question is affirmative, did they assess its proportionality?

3 . Was the applicant on 8 May 2006, on the premises of the Riga Regional Court , subjected to inhuman or degrading treatment by escort officers of the State Police in breach of Article 3 of the Convention?