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FIRST
SECTION
CASE OF KAPANADZE v. RUSSIA
(Application
no. 19120/05)
JUDGMENT
STRASBOURG
10
February 2011
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 Kapanadze v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 18 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 19120/05) 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 Anzor Anzorovich
Kapanadze (“the applicant”), on 20 April 2005.
- The
applicant was represented by Mr M. Rachkovskiy, a lawyer practising
in Moscow. The Russian Government (“the Government”) were
represented by Mrs V. Milinchuk, former Representative of the Russian
Federation at the European Court of Human Rights.
- The
applicant alleged, in particular, that he had been ill-treated by the
police.
- On
2 July 2007 the President of the First Section decided to give notice
of the application to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1975 and is now serving his sentence in the
Tula Region.
- At
about 11.30 a.m. on 10 April 2003 the cashier desk of the Petelino
psychiatric hospital in the Tula Region was robbed by three men armed
with a submachine gun and a sawn-off shotgun. Two police patrols
arrived at the scene less than five minutes later.
- The
police officers who apprehended the applicant described the events in
the following manner. Officer B. stated, in particular (his statement
to the investigator is dated 17 June 2003):
“I saw three men cross the motorway and disappear
behind the forest shelter belt ... I started running across the
forest to intercept the criminals. At that moment I heard a burst of
submachine gun fire. As I emerged out of the forest, I saw two men in
front of me who later turned out to be [the applicant] and D. [The
applicant] wore light-blue jeans and a dark jacket, and D. wore dark
tracksuit bottoms. [The applicant] carried a Kalashnikov submachine
gun with no butt, and D. had a sawn-off rifle ... I told the
criminals to freeze, drop the guns and offer no resistance. [The
applicant] and D. ... crossed the motorway. Then I shot a few rounds
in burst mode in the direction of the criminals but above their heads
and told them again to freeze. D. fell on the roadside, and the rifle
flew out of his hands... [The applicant] turned around, saw the
police car and fired several shots in its direction. Then he slipped
and fell. I ran up to him, pointed my gun at him and told him to stop
resistance and drop the weapon. The muzzle of his submachine gun was
pointed at my face, so I kicked the gun out of his hand and used
physical force on him in accordance with section 12 of the Police Act
... After the apprehension, we took them all to the Shatskoye police
station. During the arrest I saw that [the applicant] shot at the
patrol car ... [because] he wanted to stop the chase and run away
from the police ... During the arrest we had to use physical force on
[the applicant], D., and Sh. because they actively resisted us. As a
result, they sustained injuries but I cannot say what injuries and
where because they were covered in mud.”
- Officer
M., in his statement to the investigator made on 11 April 2003,
testified as follows:
“Three men were running some seventy metres ahead
of us ... One of them – the one who was a bit taller, in
light-blue jeans and black jacket – turned to us and fired a
burst from his submachine gun in our direction ... [Officer B.] fired
two shots at the running men ... The men had already crossed to the
roadside in the direction of Novomoskovsk ... The man in blue jeans
and black jacket fired a burst at the police car and started going
down towards the forest but slipped and fell on his back. He held the
submachine gun in front of his chest and pointed it at [Officer M.]
who had also pointed his submachine gun at him and told him to drop
his weapon ... I ran up to [Officer B.] and told the man in blue
jeans to throw the gun away. The man reclined on his back and put the
gun aside. I kicked it away and, using martial arts, bent his arm
behind his back, led him away and put him on the ground where
handcuffs were applied to him. [Officer Shch.] and I stayed next to
the detained men ... [The third man] was also detained but I did not
see him because he was brought directly to the Shatskoye police
station where the other men were also taken ...”
- On
the same day Officer S. testified in the same vein:
“... one of the men who were running ahead of us –
the one who was taller and wore blue jeans and black jacket –
turned around and fired a shot in our direction. Then I realised that
the men were armed ... The men had already crossed to the roadside in
the direction of Novomoskovsk ... The man in blue jeans and black
jacket fired a burst at the police car and started going down towards
the forest but slipped and fell on his back. He held the submachine
gun in front of his chest and pointed it at [Officer M.] who had also
pointed his submachine gun at him and told him to drop his weapon
...”
- It
appears from Officer Shch.’s statement of 15 July 2003 that he
had also taken part in the applicant’s arrest:
“... As we arrived at the Tula-Novomoskovsk
motorway, I saw one of the criminals – Kapanadze, as I learnt
later – point a submachine gun wrapped in something blue at the
patrol car and fire a burst in the direction of our car. I jumped out
of the car and began shooting at Kapanadze and D. who was running
after Kapanadze. They were crossing the motorway... Kapanadze ran to
the forest and I attempted to cut him off, [Officer B.] was following
me. [Officer B.] and I ran up to Kapanadze at the same moment, he
pointed his gun at my boss, while continuing to run but slipped and
we arrested him. Then we dragged him to the motorway and I stayed
with the criminals ... During the arrest it was necessary to use
physical force on Kapanadze, D. and Sh., in accordance with section
13 of the Police Act because they offered resistance ...”
- The
applicant and two other men were brought to the Shatskoye police
station in the Leninskiy district of the Tula Region.
- The
applicant submitted that he had been brought to an office on the
first floor. Two riot-squad (OMON) and operational officers (Mr G.)
had been present in the room. They had accused the applicant of
having shot a police officer while trying to get away. After Mr G.
had left the room, the riot-squad officers had begun punching and
kicking the applicant who had had his hands cuffed behind his back.
Mr G. had later come back to the office and dealt the applicant
several blows with a chair leg.
- At
8 p.m. on 10 April 2003 the investigator carried out a visual
examination of the applicant’s person in the presence of two
attesting witnesses and a chemistry specialist. It was observed that
the applicant’s face was covered with a “grey and black
substance”. There was a swelling on his left cheek and some
thick substance similar to clotted blood on one leg. The anterior
side of the applicant’s body showed no visible injuries, but
the upper right region and centre of his back were covered with
bruises. Other bruises were located on his left thigh and right shin.
- Later
on that day the officers took the applicant by car to the temporary
detention ward of the Leninskiy district police station. According to
him, the beatings continued in the car and the policemen stamped on
his bare hands and kicked him in the face. They also insulted him and
ridiculed his Georgian name.
- It
appears that, further to the applicant’s complaints about
ill-treatment at the police station, the investigator Mr M.
commissioned a further medical examination of the applicant.
- On
15 April 2003 the forensic expert recorded multiple abrasions and
bruises on the applicant’s face, including his right and left
eyelids, nose, left cheek, left temple, left ear, the front of his
thorax, his shoulders and shoulder-blades, left thigh, right knee and
shin, and a swelling in the right occipital region of his head
(report no. 1140). The expert determined that the injuries had been
caused by the impact of hard blunt objects no earlier than seven days
before the examination.
- On
18 April 2003 the applicant was transferred from the Leninskiy
district police station to remand centre no. IZ-71/1 in Tula. On
arrival at the remand centre he was examined by a doctor. According
to the medical certificate of the same date, the applicant had a
bruised right eye and right thigh. He asked the director of the
remand centre to forward his complaint about ill-treatment by the
police to the Tula regional prosecutor.
- On
2 May 2003 the investigator Mr Bu. of the Leninskiy district
prosecutor’s office issued a decision refusing to institute
criminal proceedings in respect of the alleged ill-treatment. The
decision referred to the statements by the arresting officers Mr B.
and Mr Shch., who claimed that the applicant had actively resisted
arrest and that they had used physical force on him. The operational
officers Mr L. and Mr A. from the Shatskoye police station stated
that upon their arrival at the station the detainees had not
presented any visible injuries because they had been covered in dirt
and dust. The officers denied that they had exerted any physical or
mental pressure on the detainees. On the basis of that evidence, the
investigator concluded that the applicant’s injuries must have
been lawfully caused during his arrest.
- It
appears that the decision of 2 May 2003 was set aside by the
supervising prosecutor who ordered an additional inquiry.
- On
28 July 2003 the investigator Mr Bu. issued a new decision refusing
to institute criminal proceedings. The text of the decision was
identical, word for word, to that of the decision of 2 May 2003.
- The
applicant complained to the Leninskiy district prosecutor that Mr Bu.
was not able to carry out an independent inquiry because he had been
present at the police station on 10 April 2003 and witnessed the
beatings. On 13 and 18 September 2003 the deputy Leninskiy district
prosecutor informed him that his allegations had already been
examined by the investigator Mr Bu. and found to have been
unsubstantiated.
- The
applicant also complained to the Prosecutor General and the Tula
regional prosecutor. On 4 March 2004 the regional prosecutor asked
the Leninskiy district prosecutor to examine the matter.
- On
the following day the deputy Leninskiy district prosecutor issued a
decision refusing to institute criminal proceedings in respect of the
applicant’s allegations of ill-treatment. The deputy prosecutor
referred to the statements by the investigator Mr Bu., another
investigator Ms I., and the operational officers Mr Shch. and Mr M.
from the Shatskoye police station. They denied having exerted, or
having seen anyone exert, any mental or physical pressure on the
detainees. The deputy prosecutor concluded that the injuries had been
caused during the arrest and that the applicant’s allegations
of ill-treatment had been made “for the purpose of avoiding
criminal responsibility for the crimes”.
- In
the meantime, the trial court called Officers B., M., S., and Shch.
and the investigator Mr Bu. to the witness stand and asked them to
describe the circumstances of the co-defendants’ arrest. At the
hearing on 2 September 2004 Officer Shch. stated that the
defendants had not offered any resistance during the arrest and that
they had been immediately handcuffed. He denied using any physical
force during the arrest and pointed out that the applicant had been
dirty but had had no visible injuries. Officer B. submitted that no
physical force had been employed by himself or by his subordinates.
He had merely twisted the applicant’s arms and handcuffed him.
Officer S. confirmed that, once on the ground, the defendants had
ceased to resist arrest and that there was no attempt to punish them
after the arrest. Officer M. testified that one of the defendants had
been handcuffed, and the others’ hands had been tied with
belts. The investigator Mr Bu. said he was unable to remember any
injuries on the defendants. At the hearing on 4 November 2004
Officers A. and Z. testified that the applicant had borne no visible
injuries on his arrival to the police station.
- The
applicant complained to a court that the prosecutor’s decision
of 5 March 2004 had not been notified to him. He also submitted that
the decision was unlawful because the existing medical evidence
convincingly showed that he had been a victim of ill-treatment. He
sought leave to appear in person before the court. By an interim
decision of 20 October 2004, the Leninskiy District Court of the Tula
Region refused the applicant leave to appear, finding that the
applicant’s written submissions were sufficiently detailed.
- On
15 November 2004 the Leninskiy District Court dismissed the
applicant’s complaint. It found that a copy of the decision of
5 March 2004 had been sent to the correspondence department of the
remand centre and that the contested decision was lawful and
justified because it had been “founded on the findings of a
complete, comprehensive and objective inquiry into the accused’s
allegations”. The District Court did not refer to the
applicant’s factual submissions or medical evidence.
- The
applicant filed an appeal. He asked the Regional Court to obtain the
attendance of his counsel Mr R. during the examination of the appeal.
- On
26 January 2005 the Tula Regional Court upheld, in summary fashion,
the District Court’s judgment. The applicant was neither
present nor represented at the appeal hearing.
- On
19 July 2005 the Uzlovaya Town Court convicted the applicant and his
co-defendants of four robberies and sentenced him to ten years’
imprisonment. On 25 January 2006 the Tula Regional Court upheld the
conviction on appeal.
II. RELEVANT DOMESTIC LAW
- The
investigator’s or prosecutor’s decision refusing
institution of criminal proceedings or discontinuing criminal
proceedings, as well as any other acts capable of impairing the
constitutional rights or freedoms of parties to criminal proceedings
or impeding citizens’ access to justice, are amenable to
judicial review by the court located at the place where the pre trial
investigation is being carried out (Article 125 § 1 of the Code
of Criminal Procedure).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained under Article 3 of the Convention that he was
beaten and ill-treated after the arrest. Article 3 reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Submissions by the parties
- The
Government submitted that the physical force and special means, such
as handcuffs, which had been used on the applicant during his arrest
fell outside the scope of Article 3 for two reasons. Firstly, the
injuries did not result in a deterioration of his health or cause any
lasting consequences. Secondly, the police officers did not use
physical force to cause suffering to the applicant or to humiliate
him; they merely fulfilled their duties, whereas the applicant
resisted them. The use of force did not pursue any other goals, such
as, for instance, obtaining a confession. The Government emphasised
that the applicant had disobeyed the lawful demands of the police
officers and that they had used lawful and reasonable measures for
putting an end to his unlawful conduct. Finally, the Government
submitted that the applicant’s allegations of ill-treatment and
medical evidence had been carefully reviewed by the prosecuting
authorities and the courts at two levels of jurisdiction in
compliance with Article 3 of the Convention.
- The
applicant submitted that the statements by the police officers made
during the pre-trial investigation and their testimony at trial
conclusively demonstrated that no physical force had been used on him
or on his co-defendants during their arrest and that the use of
handcuffs had been the only preventive measure applied to him. The
forensic experts had established that the injuries on his body had
been caused by multiple impacts of hard and blunt objects. The
experts’ findings further undermined the Government’s
version that he had been injured during the arrest. The absence of
any plausible and convincing explanation from the authorities as to
the origin of his injuries corroborated his version of ill-treatment
at the police station. Finally, the applicant pointed out that the
inquiry into his allegations of ill-treatment had been superficial
and incomplete: his statement had not been taken down and the
statements by the police officer made in the course of the pre-trial
investigation had been disregarded. The investigator Bu. was not
independent because he had been present during the beatings and had a
vested interest in hiding the truth. The District Court had not
allowed him to appear in person and had not examined his factual
submissions. The applicant concluded that the investigation had not
been effective.
B. Admissibility
- The
Court considers 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.
C. Merits
1. Compliance with Article 3 as regards the alleged
ill-treatment by police
- As
the Court has stated on many occasions, Article 3 enshrines one of
the most fundamental values of democratic societies. Even in the most
difficult circumstances, such as the fight against terrorism and
organised crime, the Convention prohibits in absolute terms torture
and inhuman or degrading treatment or punishment, irrespective of the
victim’s conduct (see Labita v. Italy [GC],
no. 26772/95, § 119, ECHR 2000 IV, and Chahal
v. the United Kingdom, judgment of 15 November 1996, Reports
1996-V, p. 1855, § 79). 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).
- The
Government advanced the lawful use of physical force during the
applicant’s arrest as the only version of how his injuries had
been caused. To assess the credibility of the Government’s
version, the Court will note the following facts relating to the
circumstances of his apprehension on 10 April 2003 as indicated by
the documents in the case-file.
- The
applicant was running away holding a submachine gun in his hand after
having committed an armed robbery. Several armed police officers
pursued him and his accomplices, in a car and on foot. After Officer
B. had fired a round from his submachine gun in the direction of the
suspected robbers and told them to freeze, the applicant continued to
run away but then slipped and fell on his back at the side of the
road. He raised the submachine gun and pointed it at Officer B. who,
in turn, targeted him with his own weapon. Officer B. and Officer M.
gave contradicting statements as to whether the applicant had dropped
the submachine gun on his own or whether it had been kicked out of
his hand by Officer B. Likewise, they diverged on the issue of who
had twisted the applicant’s arm behind his back and cuffed his
hands.
- The
only mention that any physical force had been used on the applicant
can be found in the pre-trial statement of Officer B. who claimed
that the suspected robbers had offered active resistance (see
paragraph 7 above). He did not, however, specify whether the use of
force had merely consisted in twisting the applicant’s arm or
whether it included other forceful actions which might have
occasioned such injuries as those that had been subsequently noted by
the forensic expert (see paragraph 16 above). Before the trial court
he clarified that neither he nor his subordinates had resorted to any
physical force, apart from twisting the applicant’s arms and
immobilising him with handcuffs (see paragraph 24 above). The other
police officers – M., S. and Shch. – consistently denied,
both during the pre trial inquiry and before the trial court,
that there had been any recourse to physical force against the
applicant. It is also relevant that Officers A. and Z. stated to the
trial court that the applicant had had no visible injuries on his
arrival at the police station (ibid.). In the absence of any credible
evidence in support of the Government’s version that the
applicant had been injured as a result of lawful recourse to physical
force during his apprehension, the Court finds it unsubstantiated.
- On
15 and 18 April 2003 the applicant underwent two medical
examinations, first by a forensic expert and later by a prison
doctor. Both medical specialists noted multiple bodily injuries on
his person, including bruises and abrasions on his face, back and
extremities. The Court cannot exclude the possibility that some of
those injuries, including bruises on his shoulders and thighs, might
have been caused when the applicant suddenly fell on his back during
his arrest. However, the remaining injuries, in particular, bruises
on his eyelids, nose, ears, chest and knees, which, in the opinion of
the forensic expert, had been the result of “impacts of a hard
blunt object” cannot reasonably be accounted for in that
manner. The Government did not put forward any explanation of how
those injuries might have occurred.
-
The applicant, on the other hand, maintained that they were a result
of ill-treatment inflicted on him by police and riot-squad officers
at Shatskoye district police station in the Leninskiy district of the
Tula Region. He described in detail how the officers had kicked and
punched him and had hit him with a chair leg. His allegation of
ill-treatment coincides with the findings of the forensic expert who
determined that the injuries had been caused no earlier than seven
days before the examination on 15 April 2003, that is on or around
the day of the applicant’s arrest. It has not been claimed that
the applicant had been injured before his arrest and since he
remained thereafter 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.
- On
the basis of all the material placed before it, the Court concludes
that the Government have not satisfactorily established that the
applicant’s injuries were caused otherwise than –
entirely, mainly, or partly – by ill treatment he
underwent while in police custody.
- 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. The
Court considers that the extent of the applicant’s injuries
attests to the severity of the ill-treatment to which he was
subjected. 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 inhuman treatment within the
meaning of Article 3 of the Convention.
- Accordingly,
there has been a violation of Article 3 under its substantive aspect.
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 expeditious. 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
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.
- In
the Court’s view, 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 v. Russia, no. 32704/04, § 155, 17 December
2009). The first two decisions refusing the institution of criminal
proceedings were identical in their content and extremely limited in
scope. The inquiry had been limited to the statements of two
arresting officers and two officers from the police station, all of
whom denied having used any physical force on the applicant. Neither
the applicant’s version of events, nor the existing medical
evidence were mentioned. No genuine attempt was made to explain the
origin of multiple injuries that the forensic expert discovered on
the applicant’s person. Furthermore, it does not appear that
the investigator interviewed him or arranged a confrontation between
him and the police officers from the Shatskoye police station who had
allegedly been involved in the ill treatment.
- A
third decision refusing to institute criminal proceedings was given
by the deputy Leninskiy district prosecutor just one day after the
regional prosecutor had asked him to examine the matter. It is
obvious that no additional material could be collected in such a
short period of time and the decision merely referred to the
statements by the investigators who had been previously in charge of
the matter and those by the same police officer from the Shatskoye
police station. No mention was made of the applicant’s version
of events or the existing medical evidence. These failures alone, for
which no explanation has been provided to the Court, suffice to
render the investigation ineffective.
- The
Court further notes that there was an apparent link between the
officials responsible for the investigation and those allegedly
involved in the ill-treatment (compare Mikheyev, cited above,
§ 115). The initial inquiry had been conducted by the
investigator Mr Bu. of the Leninskiy district prosecutor’s
office who had been, in the applicant’s submission, present at
the police station on the day of the alleged ill-treatment and
witnessed the beatings. The applicant brought the conflict of
interests and lack of independence to the attention of the district
prosecutor who, in response, referred him back to the decisions that
had already been made by the investigator Mr Bu.
- Finally,
it is also apparent that the applicant was unable to obtain an
effective review of the investigator’s decisions refusing to
institute criminal proceedings. The Leninskiy District Court rejected
his complaint in a laconic decision which did not contain any
description of his version of events or the medical evidence or put
forward any detailed response to the specific grievance and
allegations raised by the applicant in his written submissions. The
Tula Regional Court endorsed the District Court’s decision in
summary fashion, without examining the applicant’s arguments in
any detail. The Court cannot but note also that the Tula courts did
not take any measures to secure the applicant’s right to
effective participation in the proceedings (compare Denis
Vasilyev, cited above, § 126). He was neither present nor
represented before the District and Regional Courts, notwithstanding
his explicit request for leave to appear and for the attendance of
his representative before the appellate court. These failures further
undermine the effectiveness of the domestic investigation.
- 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 aspect.
II. 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 300,000 Russian roubles (RUB) in respect of
non-pecuniary damage.
- The
Government submitted that the claim was excessive.
- Having
regard to the amount of compensation granted in comparable cases in
respect of non-pecuniary damage, the Court cannot agree with the
Government’s submission that the amount claimed is excessive.
Accordingly, it awards the applicant the entire amount claimed, that
is EUR 8,300, under this head, plus any tax that may be chargeable.
B. Costs and expenses
- The
applicant also claimed RUB 60,000 for legal costs. He enclosed two
receipts showing that his wife had paid that amount for his
representation during the pre-trial investigation and at trial.
- The
Government submitted that the legal expenses were not necessary or
reasonable.
- 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 were
reasonable as to quantum. Having regard to the materials in its
possession, the Court awards EUR 850 in respect of costs and
expenses, together with any tax that may be chargeable to the
applicant.
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 application admissible;
- Holds that there has been a violation of Article
3 of the Convention;
- 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 8,300 (eight thousand
three hundred euros) in respect of non-pecuniary damage and EUR 850
(eight hundred fifty euros) in respect of costs and expenses, plus
any tax that may be chargeable to the applicant on those amounts, to
be converted into Russian roubles at the rate applicable at 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 amounts 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 10 February 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
