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FIRST
SECTION
CASE OF NIKIFOROV v. RUSSIA
(Application
no. 42837/04)
JUDGMENT
STRASBOURG
1 July
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 Nikiforov v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 10 June 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 42837/04) 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 Vyacheslav
Aleksandrovich Nikiforov (“the applicant”), on 30
September 2004.
- The
applicant, who had been granted legal aid, was represented by Ms Ye.
Muravyova (Yefremova) and Mr M. Rachkovskiy from the International
Protection Centre, a Moscow-based human-rights NGO. The Russian
Government (“the Government”) were represented
Ms V. Milinchuk, former Representative of the Russian
Federation at the European Court of Human Rights.
- The
applicant alleged, in particular, that he had been beaten in police
custody.
- On
6 November 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 of the Convention).
- The
Government objected to the joint examination of the admissibility and
merits of the application. Having considered the Government’s
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1972 and is now serving a sentence in Kostroma.
A. Alleged ill-treatment of the applicant
- On
28 December 2003 the applicant was apprehended, allegedly in an
inebriated state, on the railway line by Mr S. and Mr L., police
officers from Nerekhta station police department (линейный
пост
милиции
станции
Нерехта).
Subsequently he was transported to Nerekhta district police station
(Нерехтский
ГРОВД)
and placed in a temporary detention cell.
- After
a while a police officer took the applicant from his cell to the
second floor of the police station. The officer pointed to a young
man and woman in one of the offices and asked the applicant whether
he knew them. The applicant said that he knew the woman. The officer
then noticed a blood stain on the sleeve of the applicant’s
jacket and allegedly accused him of having robbed the man and woman.
The applicant was taken to the officer on duty and his jacket was
seized as material evidence.
- The
applicant spent the night in the temporary detention wing.
- On
the morning of 29 December 2003 another police officer who did not
introduce himself took the applicant from his cell to an office on
the third floor of the police station. He told the applicant to write
a confession statement which the applicant refused to do. The officer
left and then returned with his colleagues. Together they beat the
applicant up and later took him back to the cell.
- Later
on that day the applicant was brought before the Justice of the Peace
of the 19th Court Circuit who found him guilty of disturbing public
order and sentenced him to five days’ detention.
- On
30 December 2003 the applicant was interviewed as a witness in a
robbery case. He refused to make any statements and asked for his
injuries to be recorded and for an inquiry to be opened into the
beatings he had received.
- On
31 December 2003 an investigator from Nerekhta district police
station, Mr S., commissioned a forensic examination of the
applicant’s injuries with a view to determining their extent
and origin.
- On
19 February 2004 the expert returned the following findings:
“Mr Nikiforov had a fractured nose, abrasions and
a bruise on his face [measuring 7 x 4 cm]. The injuries could
have been caused by the impact of a hard blunt object or as a result
of falling on such an object... It is impossible to establish when
Mr Nikiforov’s nose was broken because of his belated
request for it to be X-rayed...”
- On
20 February 2004 an investigator of Nerekhta District Prosecutor’s
Office, Mr V., refused to institute criminal proceedings into the
alleged beatings. He found that since the applicant’s jacket
had been stained with blood at the moment of his arrival at the
police station, the injuries must have been caused at some earlier
point in time.
- On
12 May 2004 the Nerekhta District Prosecutor quashed the
investigator’s decision and directed him to hear the arresting
police officers and to examine the detainees’ registration log.
- On
16 May 2004 the investigator Mr V. again refused to institute
criminal proceedings. On the basis of an entry in the registration
log, he established that from 8.30 to 9.20 a.m. on 29 December 2003
the applicant had not been in the temporary detention wing but with
police officer Mr A. However, since both Mr A. and the arresting
police officers had denied using any force on the applicant, there
were no indications of a criminal offence.
- On
25 June 2004 a deputy prosecutor of the Kostroma Region quashed the
investigator’s decision as incomplete. He ordered, in
particular, that the officers on duty be heard on the issue of
whether any injuries had been present on the applicant’s body
at the time of his arrival at the police station.
- On
4 July 2004 the investigator Mr V. refused to institute criminal
proceedings for a third time. His decision was an exact repeat of his
previous one, save for the statement of the officer Mr P. in which he
had claimed that at the time of the applicant’s arrival at the
police station he had had no visible injuries.
- On
5 August 2004 the Nerekhta District Prosecutor quashed the
investigator’s decision, further to the applicant’s
complaint, and ordered him to verify the origin of the blood stain on
the applicant’s jacket.
- On
28 January 2005 the investigator Mr V. refused to institute criminal
proceedings for a fourth time. He added the testimony of the officer
Mr K. who could not remember whether the applicant had been held in
the police station on 29 or 30 December 2003.
- On
23 May 2005 the Nerekhta District Prosecutor quashed the
investigator’s decision, noting that the investigator had not
established how the injuries had been caused or obtained statements
from the applicant’s co-detainees.
- On
28 May 2005 the investigator Mr V. issued a fifth decision refusing
to institute criminal proceedings. On 27 September 2005 the regional
prosecutor quashed that decision and ordered an additional inquiry.
- On
25 November 2005 the investigator Mr Ku. issued a sixth decision
refusing to institute criminal proceedings, which was set aside by
the Nerekhta District Prosecutor on the same day.
- On
25 January 2006 the deputy Nerekhta district prosecutor, Ms P.,
refused to institute criminal proceedings for a seventh time. She
noted the testimony of the investigator Mr S., the applicant’s
partner Ms R. and the applicant’s sister Ms E., who had all
seen the applicant’s swollen nose and bruised face on the
morning of 29 December 2003. The Deputy Prosecutor acknowledged that
light injuries had been inflicted on the applicant after his arrival
at the police station on 28 December 2003, but declared the
prosecution time-barred because the limitation period for the offence
of light injuries was set at two years. The applicant complained to a
court.
- On
30 March 2006 the Nerekhta Town Court ruled in the applicant’s
favour, finding that the inquiry had been incomplete. It also noted
that, although it was established that the applicant had been beaten
at the police station, the investigation had failed to use all
possible means to identify the perpetrators.
- On
18 May 2006 the Kostroma Regional Court upheld the Town Court’s
decision on appeal.
- On 18 March 2007 the investigator Mr L. from the
Nerekhta District Prosecutor’s Office issued the most recent
decision refusing to institute criminal proceedings. He noted that,
according to the arrest record and testimonies of many witnesses, the
applicant had had no visible injuries at the time he was placed in
the temporary detention wing at 11.50 p.m. on 28 December 2003.
On 31 December 2003 a forensic expert had examined the applicant and
recorded multiple injuries, including bruising to the eye, a broken
nose, chipped tooth and abrasions on his face. Officer A. had
admitted taking the applicant out of his cell on 29 December 2003 but
denied having beaten him. The investigator thus confirmed that the
applicant had suffered bodily injuries shortly after he was detained
at Nerekhta district police station. However, the prosecution was
time-barred because of the two-year limitation period and no evidence
implicating officer A. or any other police officers had been
obtained.
B. Criminal proceedings against the applicant
- From
18 March to 2 April 2004 the Nerekhta District Court examined the
case against the applicant on the charge of robbery.
- On
2 April 2004 the District Court convicted the applicant as charged
and sentenced him to seven years’ imprisonment in a
high-security colony. On 5 August 2004 the judgment was upheld on
appeal by the Kostroma Regional Court.
II. RELEVANT DOMESTIC LAW
- A criminal case may be instituted on the basis of a
criminal complaint if there is sufficient evidence of elements of a
crime (Article 140 of the Code of Criminal Procedure). A
criminal case may be opened by a prosecutor or by an investigator
with the prosecutor’s consent (Article 146 § 1 of the
CCrP).
- The victim is the individual who has suffered physical
harm, emotional distress or pecuniary damage as a consequence of the
crime. The victim has, in particular, the right to give statements,
to take part in procedural acts, to put questions to experts, and to
lodge requests (Article 42 of the CCrP).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained under Article 3 of the Convention that he had
been beaten by police officers on 29 December 2003 and that his
complaint had not been properly investigated. Article 3 provides as
follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
- The
Government submitted that the applicant had not exhausted domestic
remedies because he had not challenged the decisions refusing the
institution of criminal proceedings before a court and because he had
not voiced his disagreement with the decision of 18 March 2007.
- The
applicant replied that he had lodged appeals against the
investigators’ decisions with the Nerekhta District Court. He
had not lodged an appeal against the most recent decision of 18 March
2007 because that remedy had proved to be ineffective.
- The
Court observes that, following the applicant’s complaint
against the decision of 25 January 2006 by which the institution of
criminal proceedings was refused, the Nerekhta District Court and the
Kostroma Regional Court determined that the investigation had been
incomplete and insufficiently thorough. Although the inquiry was
subsequently reopened, the institution of criminal proceedings was
again refused on 18 March 2007 on the same grounds. As the Court has
found in a similar case, a requirement to introduce further appeals
against successive decisions refusing the institution of criminal
proceedings would be over-formalistic and place an excessive burden
on the applicant. Furthermore, owing to the time that has elapsed
since the events complained of, another reversal of the refusal to
open criminal proceedings would not constitute an effective remedy
(see Samoylov v. Russia, no. 64398/01, § 45, 2 October
2008). Accordingly, the Government’s objection must be
dismissed.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Compliance with Article 3 as regards the alleged
ill-treatment by police
- The
Court has held on many occasions that the authorities have an
obligation to protect the physical integrity of persons in detention.
Where an individual is taken into custody in good health but is found
to be injured at the time of release, it is incumbent on the State to
provide a plausible explanation of how those injuries were caused
(see Ribitsch v. Austria, 4 December 1995, Series A no.
336, § 34, and Salman v. Turkey [GC], no. 21986/93,
§ 100, ECHR 2000-VII). In assessing evidence, the Court has
generally applied the standard of proof “beyond reasonable
doubt” (see Ireland v. the United Kingdom, 18 January
1978, § 161, Series A no. 25). However, such proof may follow
from the coexistence of sufficiently strong, clear and concordant
inferences or of similar unrebutted presumptions of fact. Where the
events in issue lie wholly, or in large part, within the exclusive
knowledge of the authorities, as in the case of persons within their
control in custody, strong presumptions of fact will arise in respect
of injuries occurring during such detention. Indeed, the burden of
proof may be regarded as resting on the authorities to provide a
satisfactory and convincing explanation (see Ribitsch, §
34, and Salman, § 100, both cited above).
- In
their initial observations, the Government submitted that it had not
been possible to establish the origin and timing of the applicant’s
injuries with sufficient certainty. The injuries may have occurred as
a result of the applicant falling from his own height against hard
objects with protruding elements. In such circumstances, the Russian
authorities could not be held responsible for the applicant’s
alleged ill-treatment. In their additional observations, the
Government acknowledged that the applicant’s injuries had
appeared after he was brought to Nerekhta police station. They
claimed, however, that during the inquiry the applicant had
deliberately misled the authorities by putting forward contradictory
stories of the ill treatment in an attempt to evade liability
for the crimes he had committed.
- The
applicant submitted that on the day of his arrest he had had no
visible injuries. The absence of any injuries had been noted in the
arrest record and also in the detainee registration log of the
temporary detention wing. On the following day his wife and sister
had visited him and seen his swollen and bruised face, broken nose
and chipped tooth. Those same injuries had been recorded by the
forensic expert on 31 December 2003. In the applicant’s view,
the Government’s claim that the injuries had been
self inflicted was absurd and unrealistic. Had he indeed
sustained his injuries during his detention, that incident would have
been recorded in documents because the police officer on duty would
have called an ambulance and drafted an incident report.
- On
the facts, the Court observes that on 28 December 2003 the applicant
was taken into custody and placed in a cell in Nerekhta district
police station. The domestic authorities (see paragraph 28 above) and
the Government in their additional observations acknowledged that the
applicant had been arrested in good health and that he had had no
injuries.
- Three
days later, on 31 December 2003 a forensic expert had seen the
applicant and noted multiple physical injuries, including abrasions
and large bruises on his face and a broken nose.
- According
to the applicant, these injuries were a result of the ill-treatment
inflicted on him by police officers at Nerekhta district police
station who had attempted to extract a confession by force. Mr A. and
other officers had repeatedly hit his face and body, and punched and
kicked him. The Court notes that his account coincides with the
findings of the forensic expert. Moreover, since he remained at the
material time in custody within the exclusive control of the Russian
police, strong presumptions of fact arise in respect of the injuries
that occurred during his detention. However, the Government failed to
provide a satisfactory and convincing explanation of how those
injuries had been caused. Their version of the self-inflicted nature
of the injuries is not supported by any evidence and does not appear
plausible.
- Having
regard to the applicant’s consistent and detailed allegations,
corroborated by the medical report, and in view of the absence of any
other plausible explanation as to the origin of the injuries found on
the applicant by the forensic examination, the Court accepts that the
applicant was subjected to ill-treatment by police.
- As
to the seriousness of the acts of ill-treatment, the Court reiterates
that in order to determine whether a particular form of ill-treatment
should be qualified as torture, it must have regard to the
distinction, embodied in Article 3, between this notion and that of
inhuman or degrading treatment. It appears that it was the intention
that the Convention should, by means of this distinction, attach a
special stigma to deliberate inhuman treatment causing very serious
and cruel suffering (see Aksoy v. Turkey, 18 December
1996, § 64, Reports of Judgments and Decisions
1996-VI; Aydın v. Turkey, 25 September 1997, §§
83-84 and 86, Reports of Judgments and Decisions 1997-VI;
Selmouni v. France [GC], no. 25803/94, § 105,
ECHR 1999 V; Dikme v. Turkey, no. 20869/92, §§
94-96, ECHR 2000-VIII; and, among recent authorities, Batı
and Others v. Turkey, nos. 33097/96 and 57834/00, § 116,
ECHR 2004-IV (extracts)).
- In
the instant case the Court finds that the existence of physical pain
or suffering is attested by the medical report and the applicant’s
statements regarding his ill-treatment in the police station.
Although his injuries were classified as “light injuries”
in the domestic proceedings, the Court considers that his broken nose
and multiple bruises and abrasions attest to the severity of the
ill-treatment to which he was subjected. It is also relevant for the
assessment of the seriousness of those acts that the pain and
suffering were inflicted on him intentionally, with the view to
extracting from him a confession to having committed the offence of
which he was suspected. In these circumstances, the Court concludes
that, taken as a whole and having regard to its purpose and severity,
the ill-treatment at issue amounted to torture within the meaning of
Article 3 of the Convention.
- Accordingly,
there has been a violation of Article 3 under its substantive limb.
2. Compliance with Article 3 as regards the
effectiveness of the investigation
- 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 requires by implication that there should be an effective
official investigation. For the investigation to be regarded as
“effective”, it should in principle be capable of leading
to the establishment of the facts of the case and to the
identification and punishment of those responsible. This is not an
obligation of result, but one of means. The investigation into
serious allegations of ill-treatment must be thorough. This 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 (see
Assenov and Others v. Bulgaria, 28 October 1998, § 103 et
seq., Reports of Judgments and Decisions 1998 VIII).
They must take the 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, and a requirement of promptness and
reasonable expedition is implicit in this context (see, among many
authorities, Mikheyev v. Russia, no. 77617/01, § 107
et seq., 26 January 2006, and Assenov, cited above, § 102
et seq.). Further, the investigation must be expedient. The Court has
often assessed whether the authorities reacted promptly to the
complaints at the relevant time (see Labita v. Italy [GC],
no. 26772/95, § 133 et seq., ECHR 2000-IV). It has
also given consideration to the promptness in opening investigations,
delays in taking statements and to the length of time taken for the
initial inquiry (see Indelicato v. Italy, no. 31143/96,
§ 37, 18 October 2001).
- The
Government submitted that the investigation had been sufficiently
thorough. The investigators had obtained statements from many
witnesses, including the police officers, the forensic expert, the
supervising prosecutor, the applicant himself, the applicant’s
family members and co-detainees, and examined the detention records
and registration logs from Nerekhta district police station. The
inquiry had been completed within the time-limits established by
Russian law. However, no criminal case had been instituted because
there had been insufficient evidence of the police officers’
involvement in the alleged beatings.
- The
applicant pointed out that he had lodged a criminal complaint on 30
December 2003. However, the medical examination had not been
completed until two months later, on 19 February 2004. The criminal
case had not been instituted and a confrontation between him and the
police officers had not been arranged. In his view, the inquiry had
been too long and ineffective.
- The
Court considers that medical evidence of damage to the applicant’s
health, together with his allegations of having been beaten by the
police, amounted to an “arguable claim” of ill-treatment.
Accordingly, the authorities had an obligation to carry out an
effective investigation into the circumstances of the alleged
ill-treatment.
- The
forensic examination revealed signs on the applicant’s face of
having been beaten. The presence of such injuries was indicative of a
criminal assault occasioning actual bodily harm or at least the
criminal offence of battery. Under Russian law, the applicant’s
criminal complaint, supported by that information on the elements of
a criminal offence, was sufficient grounds for opening a criminal
case (see paragraph 31 above). However, a criminal case has never
been opened and the institution of criminal proceedings was refused
on no fewer than seven occasions. In the absence of a criminal case
the applicant could not be granted the procedural status of victim,
which restricted his participation in the investigation and prevented
him from exercising the rights attached to that procedural
status, including the right to lodge applications or the right to put
questions to the medical expert (see paragraph 32 above). It cannot
therefore be said that the applicant’s right to participate
effectively in the investigation was secured (compare Denis
Vasilyev v. Russia, no. 32704/04, § 126, 17 December
2009).
- The
Court further observes that the manner in which the inquiry was
conducted reveals the investigative authorities’ determination
to dispose of the matter in a hasty and perfunctory fashion (compare
Denis Vasilyev, cited above, § 155).
The inquiry was passed between authorities and investigators who
routinely attempted to discontinue the proceedings on various
grounds. Over a period of three years, seven decisions refusing the
institution of criminal proceedings were given, all of which –
save for the last one – were set aside by supervising
prosecutors or courts because the inquiry that had been carried out
until then had been incomplete or deficient. The Court notes
that the most fundamental investigative measures, such as inspecting
the scene where the applicant alleged to have been beaten or
arranging a confrontation between him and the police officers from
Nerekhta district police station, were never carried out. These
failures alone, for which no explanation has been provided to the
Court, suffice to render the investigation ineffective.
- The
inquiry by the domestic authorities also fell short of the promptness
and reasonable expedition requirements. It
lasted more than three years and was marred by considerable periods
of inactivity, such as that from 5 August 2004 to 28 January
2005 and the even longer period between the Regional Court’s
decision of 18 May 2006 and the most recent investigator’s
decision of 18 March 2007. The most serious consequence resulting
from the excessive length of the inquiry was that the prosecution of
those responsible became time-barred under domestic law.
- In
the light of the foregoing, the Court finds that the authorities
failed to carry out an effective criminal investigation into the
applicant’s allegations of ill-treatment. Accordingly, there
has also been a violation of Article 3 under its procedural limb.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained that his administrative conviction of 29
December 2003 had been founded on forged evidence. The Court observes
that more than six months elapsed between the end of the applicant’s
detention and the introduction of this complaint. It follows that
this complaint has been introduced out of time and must be rejected
in accordance with Article 35 §§ 1 and 4 of
the Convention.
- Lastly,
the applicant complained that his trial had not been public, that the
prosecutor had intimidated the witnesses and that the trial court did
not prevent witnesses from leaving the courtroom after they had made
their statements or from talking to each other. It appears, however,
that the trial was held in open court where the witnesses gave
testimony without any apparent pressure being put on them. It follows
that this part of the application is manifestly ill-founded and must
be rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 50,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government submitted that the amount claimed was excessive in the
light of the Court’s case-law in similar cases.
- The
Court considers that the applicant must have suffered physical pain,
anxiety and frustration because of the ill-treatment inflicted on him
at Nerekhta district police station and the ineffective investigation
into his complaints. It considers, however, the applicant’s
claim excessive. Making its assessment on an equitable basis and
having regard in particular to the extent of the applicant’s
injuries, it awards the applicant EUR 30,000 under this head, plus
any tax that may be chargeable.
B. Costs and expenses
- The
applicant also claimed 2,720 Russian roubles (RUR) for postal
expenses.
- The
Government pointed out that the receipts submitted by the applicant
were unreadable.
- According to the Court’s
case-law, an applicant is entitled to the reimbursement of costs and
expenses only in so far as it has been shown that these have been
actually and necessarily incurred and are reasonable as to quantum.
In the present case, the sum of EUR 850 has already been paid to
the applicant by way of legal aid. In such circumstances, the Court
does not consider it necessary to make an award under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the alleged
ill-treatment and effectiveness of the ensuing investigation
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
3 of the Convention under its substantive and procedural limbs;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 30,000
(thirty thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, to be converted into Russian roubles
at the rate applicable on the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 1 July 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judge G.
Malinverni is annexed to this judgment.
C.L.R.
S.N.
CONCURRING OPINION OF JUDGE MALINVERNI
- I
voted in favour of finding that there had been a violation of Article
3. However, I wish to distance myself from the majority’s
conclusion that the ill-treatment suffered by the applicant should be
described as torture (see paragraph 46 of the judgment).
- While
I am aware that the distinction between degrading treatment, inhuman
treatment and torture is not always easy to establish, I consider
that, to avoid trivialising the term, findings of torture should be
reserved for the most serious violations of Article 3.
- Article
1 of the United Nations Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment defines torture as any
act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person by or at the instigation of a
public official for a specified purpose (for example, a confession,
punishment or intimidation). This definition lays down the three
constituent elements of torture: intensity of suffering, deliberate
intention and specific aim.
- The
Court has elaborated on the three concepts referred to in Article 3
by focusing chiefly on the intensity of the suffering inflicted on
the victims, so that a distinction can be made between the types of
treatment falling within the scope of that Article. According to its
case-law, the category of torture should be reserved for “deliberate
inhuman treatment causing very serious and cruel suffering”, to
which it attaches “a special stigma” (see Selmouni v.
France [GC], no. 25803/94, § 36, ECHR 1999-V).
- The
criteria it uses in its assessment of ill-treatment also enable the
Court to classify instances of such treatment in concrete terms. Its
assessment is based on “all the circumstances of the case, such
as the duration of the treatment, its physical or mental effects and,
in some cases, the sex, age and state of health of the victim, etc.”
(ibid., § 100).
- Admittedly,
in recent years the concept of “torture” has been
interpreted in an evolutive manner and acts previously classified as
inhuman and degrading treatment are now in some cases described as
torture (see Selmouni, cited above, §§ 101 and 105; Dikme
v. Turkey, no. 20869/92, ECHR 2000-VIII; and İlhan v. Turkey
[GC], no. 22277/93, ECHR 2000 VII).
- In
the present case, on 31 December 2003, a forensic expert had examined
the applicant and recorded multiple injuries, including bruises to
the eye, a broken nose, a chipped tooth, and abrasions on the face
(paragraphs 14, 28 and 40).
- Admittedly,
the blows received by the applicant were violent, and not necessary.
I am not persuaded, however, that the present case involved
gratuitous and premeditated violence, contrary to the position the
Court held in other cases, such as Dedovskiy v. Russia (no. 7178/03,
§§ 81-85, 15 May 2008), where the Court found that acts of
torture had been committed since blows had been administered to the
prisoners according to a predefined, calculated plan by a
special-purpose squad, and where the use of rubber truncheons was
retaliatory in nature.
- Nor
can the ill-treatment complained of by the applicant be compared to
the treatment (“Palestinian hanging”) suffered, for
example, by Mr Aksoy (see Aksoy v. Turkey, 18 December 1996,
Reports of Judgments and Decisions 1996-VI), which the Court found
could only have been deliberately inflicted, since a certain amount
of preparation and exertion would have been required to carry it out,
and which led to a paralysis of both arms; or to that suffered by
Mr Selmouni (see Selmouni, cited above), who was left with marks
over almost all of his body after enduring repeated and sustained
assaults over a number of days of questioning.
- In
conclusion, without wishing in any way to downplay the acts of
violence for which the police were responsible in the present case, I
consider that such acts should be described as inhuman treatment and
not torture.
- Once
again, I am emphasising this point because I believe that, if it is
not to be trivialised, the term “torture” must be
reserved for the most serious instances of ill-treatment.
