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FIRST
SECTION
CASE OF DMITRIYEV v. RUSSIA
(Application
no. 13418/03)
JUDGMENT
STRASBOURG
24
January 2012
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 Dmitriyev v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Anatoly
Kovler,
Elisabeth Steiner,
Khanlar
Hajiyev,
Mirjana Lazarova Trajkovska,
Julia
Laffranque,
Erik Møse, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 4 January 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 13418/03) 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 Nikolay Nikolayevich
Dmitriyev (“the applicant”), on 3 April 2003.
- The
Russian Government (“the Government”) were represented by
Ms V. Milinchuk, former Representative of the Russian Federation at
the European Court of Human Rights.
- Relying
on various Convention provisions, in particular Articles 3, 5, 8 and
13 of the Convention, the applicant alleged that on 8 December 2001
he had been beaten up by local policemen, who unlawfully entered his
home and then detained him for two days. According to the applicant,
his complaints about the events of 8-10 December 2001 were not
properly investigated.
- On
26 March 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 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1968 and lives in St
Petersburg.
- The
applicant and his parents live in an apartment which they share with
two other families.
- In April 2001 the applicant beat up Bo., who was a
member of one of the families living in the same apartment. Bo.
complained to the police about the beating. On 1 October 2002 the
applicant was convicted of affray in this connection and given a
six-month suspended sentence. In the context of these proceedings the
applicant had been detained on remand between 10 June and 15
July 2002. It does not appear that he ever complained about this
detention before the competent authorities at the domestic level.
A. The events of 8 to 10 December 2001
- At around 5 p.m. on 8 December 2001 K., a neighbourhood
police inspector, and police officer S., the Deputy Head of the 28th
Section of the St Petersburg Central District Department of the
Interior (“the District Department of the Interior”),
arrived at the applicant’s apartment to request him to attend
an interview. At the time, he had not been either classed as a
suspect or formally charged. Bo. let the officers into the apartment
and they saw the applicant entering his room and locking the door
behind him.
- The
applicant’s mother blocked the way to her son’s door. S.
explained the reasons for their visit to the applicant’s
mother, but she asked them to leave. According to S., the applicant’s
mother verbally insulted him and punched him several times in the
chest. The applicant disagreed and submitted that his mother had
simply blocked access to the door, but had not insulted or punched
anyone.
- The applicant’s neighbours, who were present
during the incident, later confirmed that the applicant’s
mother had used abusive language and had tried to hit S.
- K. then left the building in order to prevent the
applicant from escaping through a window and S. stayed in the
apartment and called for police reinforcements. Some time later,
officers Sh., D.B. and M. arrived at the apartment. S. told them to
take the applicant’s mother to the police station for insulting
the policemen on duty.
- According to the applicant, and as also noted in the
statement of his neighbours given during the subsequent
investigation, the policemen then forced the door to his room,
entered the room and some time later led him outside the apartment
and put him into a car. The applicant submitted that during the
arrest the policemen had punched and kicked him all over the body.
- The Government submitted that the applicant had
himself come out of his room, acted aggressively and sworn at the
police officers.
- The applicant and his mother were both arrested and
put into the same police car. The police took them to the District
Department of the Interior and locked them in cells for
administrative detainees.
- According to an undated and unsigned handwritten
report to a head of the District Department of the Interior submitted
by the Government, the applicant was detained on 8 December 2001 on
suspicion of “an administrative offence”. Without
mentioning the legal characterisation of the offence, the report also
described the circumstances of the arrest and stated that the
applicant had pushed the officers away and had sworn at and
threatened them, that he had waved his arms and behaved in a
belligerent fashion. It was mentioned that physical force had been
applied to arrest the applicant. It appears that the report was
written by one of the policemen who had taken part in the applicant’s
arrest on 8 December 2001.
- The case file also contains a copy of a decision of 8
December 2001 to institute criminal proceedings against the applicant
in connection with the episode involving his neighbour which had
taken place in April 2001.
- In the context of these criminal proceedings, on 9
December 2001 an investigator decided to apply a measure of restraint
in respect of the applicant, in the form of an undertaking not to
leave his place of residence while the criminal proceedings were
pending. The decision did not mention the applicant’s previous
arrest, but did bear his signature confirming that he had been
notified about it.
- It is undisputed that the applicant was held in
detention until 10 December 2001. At around 10 a.m. on that day
he was brought before a judge, St., of the Kuybyshevskiy District
Court and then released.
- The applicant submitted that the judge had refused to
examine the materials submitted by the police because of various
“mistakes in these documents” and the administrative
proceedings were thus discontinued.
- The Government did not comment on this allegation and
were unable to provide the Court with the materials pertaining to the
administrative case of the applicant, explaining that they had been
destroyed following the expiry of the time-limit for storage of such
documents in February 2003, April 2005 and April 2007. They did not
submit any specific information as to the existence of a record of
the applicant’s administrative detention.
- The Government did not dispute the timing of the
applicant’s detention and release.
B. The applicant’s medical examination of 29
December 2001
- According to the applicant, prior to the events of 8
December 2001 he had been undergoing alcohol rehabilitation treatment
in a specialised clinic. On that day he had paid a weekend visit to
his family.
- Upon release, he returned to the clinic, where he
resumed his treatment, despite an aching chest and head. Upon his
discharge from the clinic on 29 December 2001, he applied for
specialised medical assistance in a nearby hospital.
- On the same day he was diagnosed as having multiple
fractures of the ribs, a closed cranio-cerebral injury and a closed
fracture of a heel bone. He remained in that hospital for further
treatment until 5 January 2002.
C. The investigation into the events of 8 to 10
December 2001
1. First round of investigation
- On 12 December 2001 the applicant and his mother asked
a prosecutor to initiate criminal proceedings against police officers
S., K. and other policemen who had allegedly ill-treated them on 8
December 2001. In their application, they referred specifically to
the policemen’s allegedly unlawful entry to the apartment and
the applicant’s family’s accommodation, to having been
beaten and to their subsequent arrest and detention.
- On 28 January 2002 Ts., an assistant prosecutor at
the St Petersburg Central District Prosecutor’s Office, refused
to institute criminal proceedings, because no signs of crime had been
detected.
- On 8 February 2002 Mo., a supervising prosecutor at
the St Petersburg Prosecutor’s Office, instituted criminal
proceedings against S. on the basis of the complaint by the applicant
and his mother about S.’s actions. She argued that:
“... [the decision of 28 January 2002] had been
unlawful and should be quashed in so far as it had concerned the
actions of the police officers.
Thus, [the relevant legislation] indeed empowers the
policemen to enter without hindrance the residential premises of
private citizens. However, this power is provided only in the event
that the [policemen are pursuing] anyone suspected of criminal
activity. In the case at hand, [the applicant] was not a suspect
within the meaning of [the domestic law on criminal procedure], the
criminal case against him was instituted only later, which policemen
K. and S. certainly knew. In addition, in breach of the mentioned
legal norm obliging the police to inform the relevant prosecutor of
all such cases within twenty-four hours, this was not done ...”
The
decision did not address the question of the origin of the
applicant’s injuries, and dealt mostly with the grievances of
the applicant’s mother. The prosecutor decided to institute
criminal proceedings but for some reason failed to explicitly quash
the decision of 28 January 2002.
- On 8 June 2002 investigator Ch. of the St Petersburg
Central District Prosecutor’s Office discontinued the criminal
proceedings against S.
- The investigator collected the following evidence. He
questioned S., who stated that during the incident in the applicant’s
apartment he had been verbally insulted several times. The applicant
had refused to follow him to the police station and had locked
himself in his room. S. had had to call for reinforcements and take
the applicant to the police station by force.
- The investigator also questioned K., who stated that
he had been in charge of looking into Bo.’s complaint that he
had been beaten up by the applicant. On 8 December 2001, having
learned that the applicant was at home, he had gone with officer S.
to request him to attend a police interview. They had met the
applicant in the apartment. Then K. had left the building and had
seen the reinforcing officers arriving. Sh. and M. had gone upstairs
and had soon come back, pulling the applicant and his mother to the
car by the arms.
- The investigator questioned the applicant’s
neighbours Bo. and Sv., who stated that the police officers had
forced open the door to the applicant’s room and had entered it
without permission.
- The decision did not address the applicant’s
complaint of ill-treatment by the policemen and his injuries.
- In the light of the above evidence, the investigator
concluded that S., by ordering the applicant’s arrest and
transfer to the police station, had acted lawfully.
2. Second round of investigation
- On 1 July 2002 deputy prosecutor B. S. of the St
Petersburg Central District Prosecutor’s Office quashed the
decision of 8 June 2002 and ordered additional investigation of the
applicant’s complaint concerning alleged unlawful actions by S.
- On 21 October 2002 an investigator at the St
Petersburg Central District Prosecutor’s Office discontinued
the criminal proceedings against S. He argued that S. had acted
lawfully and had not abused his authority. The investigator also
found that the applicant and his mother had insulted S. The decision
did not address the question of the applicant’s injuries.
3. Third round of investigation
- On 17 February 2003 deputy prosecutor B.S. of the St
Petersburg Prosecutor’s Office quashed the decision of 21
October 2002 and ordered an additional investigation into the
applicant’s complaints.
- On 3 April 2003 investigator A. Sh. of the St
Petersburg Central District Prosecutor’s Office discontinued
the criminal proceedings. The decision focused solely on the
applicant’s mother and did not address the applicant’s
grievances, mentioning that administrative proceedings had been
brought against the applicant and that their outcome was unclear
because the relevant documents had been destroyed. Overall, the
investigator concluded that there was no evidence that S. had abused
his powers.
4. Fourth round of investigation
- On 30 December 2003 deputy prosecutor A. Zh. of the St
Petersburg Prosecutor’s Office quashed the decision of 3 April
2003 and ordered additional investigation by another prosecutor’s
office. The prosecutor noted that it had not been possible to
establish with certainty the circumstances of the incident between
the applicant and the police officers, due to inconsistencies in the
witnesses’ statements. The decision also noted that on 29
December 2001 the applicant had applied for medical assistance at the
local hospital, had been diagnosed as having a number of injuries and
that no investigation had been conducted in this connection. The
decision mentioned without referring to the source of that
information that the applicant’s injuries might have resulted
from a fall earlier on that day. The prosecutor questioned this
version of events, noted that the investigation conducted so far was
inadequate and, among other things, ordered an investigation as to
whether the applicant’s injuries could have been inflicted
during the arrest of 8 December 2001.
- On 18 February 2004 an investigator from the St
Petersburg Admiralteyskiy District Prosecutor’s Office
discontinued the criminal proceedings against S. He noted that the
decision of 8 February 2002 had not quashed the decision of 28
January 2002, and that the original decision was still in force.
Thus, the institution of criminal proceedings at a time when there
was a valid decision to discontinue them was unlawful. The
investigator noted in his decision that, in entering the apartment
against the will of its owner and ordering the policemen to take the
applicant to the police station, S. had acted unlawfully, because
such actions were only lawful if aimed at interrupting ongoing
criminal activity. The decision also noted that the allegedly
aggressive behaviour of the applicant and his mother were “an
understandable reaction” to unlawful actions on the part of the
policemen.
5. Fifth round of investigation
- On 31 March 2004 deputy prosecutor A. Zh. of the St
Petersburg Prosecutor’s Office quashed the decision of 18
February 2004 due to the inadequacy of the investigation and ordered
an additional investigation.
- On 31 May 2004 investigator Zh. of the St Petersburg
Admiralteyskiy District Prosecutor’s Office discontinued the
criminal proceedings against S. The investigator stated that it had
not been possible to establish with certainty the circumstances of
the incident between the applicant and the police officers due to
inconsistencies in the witnesses’ statements.
- He argued that S. had unlawfully entered the apartment
against the applicant’s will and had given an illegal order to
take the applicant and his mother to the police station. The
investigator further argued that the institution of criminal
proceedings at a time when the decision of 28 January 2002 to
discontinue them was still in force was unlawful and that all the
evidence collected in the course of the newly opened investigation
was inadmissible.
- The decision gave details of a forensic examination of
the applicant’s medical condition which had taken place on an
unspecified date. It mentioned specifically that:
“... a closed fracture of the front eighth and
ninth left ribs took place no more than two-three weeks prior to [29
December 2001], a closed fracture of the fifth and sixth left ribs
took place over four weeks before [29 December 2001] [and] a closed
fracture of the right heel bone took place in a term not exceeding
(approximately) one month before [29 December 2001] ... [whilst] a
bruise on the left side of the back was received no more than two
weeks before [29 December 2001] ...”.
The
decision also mentioned that both the applicant and his mother were
civil claimants in this criminal case.
- The applicant challenged the decision in court.
- On 17 February 2005 the Smolninskiy District Court in
St Petersburg examined the applicant’s complaint against
the investigator’s decision of 31 May 2004 and rejected it. The
court upheld the investigator’s conclusion that the institution
of criminal proceedings at a time when the decision of 28 January
2002 to discontinue them was still in force was unlawful, and that
all evidence gathered in the course of the newly opened proceedings
was inadmissible. The applicant appealed. On 7 April 2005 the St
Petersburg City Court rejected the applicant’s appeal.
6. Sixth round of investigation
- On 2 June 2004 deputy prosecutor A. Zh. of the St
Petersburg Prosecutor’s Office quashed the decision of 8
February 2002 to institute criminal proceedings. On 2 June 2004 the
deputy prosecutor quashed the decision of 28 January 2002 to
discontinue the criminal proceedings and ordered an additional
investigation.
- On 11 June 2004 deputy prosecutor K. of the St
Petersburg Central District Prosecutor’s Office again
discontinued the criminal proceedings against S. The deputy
prosecutor noted that because the applicant had refused to follow
them to the police station, police officers Sh. and M. had taken the
applicant by the arms and led him out of the apartment. He concluded
that the police officers had acted lawfully during the incident,
which had been provoked by the applicant and his mother. The deputy
prosecutor also mentioned that the documents pertaining to the
administrative proceedings against the applicant and her son, namely
the records of administrative offences, had been destroyed. It did
not address the issue of the lawfulness of the arrest and the
detention or the question of the origin of the applicant’s
injuries. In taking the decision, the prosecutor did not refer to any
specific piece of evidence. The decision did not rely on any
evidence, either new or old, in reaching the above conclusions.
- The applicant challenged this decision in court.
- On 1 November 2004 the Smolninskiy District Court in
St Petersburg rejected the complaint against the decision of 11 June
2004. The court noted that:
“... the statements of all persons questioned in
connection with the case have been analysed, the events have been
described in the decision [of 11 June 2004] in chronological order
and do not contradict the evidence contained in the materials of
inquiry ... submitted to the court. The statements of policemen Sh.,
D.B., K. and S., that they did not do anything illegal ... and that
the conflict was provoked by [the applicant’s mother], who had
refused to follow the lawful orders of the policemen,
are also confirmed by the statements of witness L. ...”.
The
applicant appealed against the judgment.
- On 27 January 2005 the St Petersburg City Court
rejected the applicant’s appeal.
II. RELEVANT DOMESTIC LAW
- Section
11(18) of the Police Act 1991 gives the police the right to enter
premises when pursuing a person suspected of having committed a crime
or when the police have sufficient information to believe that a
crime has been or is being committed on the premises or that an
accident has happened there and also for the purposes of ensuring the
safety of citizens and of the public in cases of natural disasters,
catastrophes, accidents, epidemics, epizootics and public disorders.
The police have to notify a prosecutor of all cases of entry into the
homes of persons against their will within twenty-four hours.
- Article 158 of the RSFSR Administrative Offences Code
1984, as in force at the relevant time, punished minor affray, namely
the use of abusive language in public places, harassment of citizens
and other similar actions disturbing public order and peace. Article
238 of the Code provided that an accused person could be taken to a
police station for the purpose of making a record of an
administrative offence if it had not been possible to make it on the
spot. Article 240 required that administrative detention be recorded.
According to Article 242, a person who has committed an
administrative offence may be detained for no more than three hours.
However, individuals who have committed a minor affray may be
detained until the examination of the case by a court or by the head
of a law-enforcement body.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON
ACCOUNT OF THE ALLEGED ILL-TREATMENT DURING THE ARREST AND THE LACK
OF INVESTIGATION INTO THE EVENTS
- Relying
on Articles 3 and 13 of the Convention, the applicant
complained with reference to the events of 8 December 2001 that he
had been beaten up by police during his arrest and that the
authorities had failed to investigate the incident properly. The
Court will examine these grievances under Article 3 of the
Convention, which provides as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
- The
Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
Government contested the applicant’s account of events and
argued that the police officers had acted lawfully and
proportionately. They submitted that the timing of the traces on the
applicant’s body did not correspond to his description of the
events, that the incident had been thoroughly investigated, that the
applicant’s injuries could have been incurred after his release
and that the domestic authorities had found the applicant’s
allegations of ill-treatment to be unsubstantiated. In particular,
they referred to the decision of 30 December 2003 which had mentioned
that the injuries might have resulted from a fall on 29 December
2001.
- The
applicant disagreed, and maintained his complaints. He referred, in
particular, to the medical record noting his injuries and to various
deficiencies in the investigation, and insisted on his original
account of the events in question.
2. The Court’s assessment
(a) The alleged ill-treatment in police
custody
i. General principles
- 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. Unlike most of the
substantive clauses of the Convention and its Protocols, Article 3
makes no provision for exceptions and no derogation from it is
permissible under Article 15 § 2 even in the event of a public
emergency threatening the life of the nation (see Selmouni v.
France [GC], no. 25803/94, § 95, ECHR 1999-V, and Assenov
and Others v. Bulgaria, 28 October 1998, § 93, Reports of
Judgments and Decisions 1998 VIII).
- Allegations
of ill-treatment must be supported by appropriate evidence (see,
mutatis mutandis, Klaas v. Germany, 22 September 1993,
§ 30, Series A no. 269). To assess this evidence, the Court
adopts the standard of proof “beyond reasonable doubt”
but adds that such proof may follow from the coexistence of
sufficiently strong, clear and concordant inferences or of similar
unrebutted presumptions of fact (see Ireland v. the United
Kingdom, 18 January 1978, § 161, Series A no. 25).
ii. Application of these principles
- Having
regard to the parties’ submissions and all the materials in its
possession, the Court considers that the evidence before it does not
enable it to find beyond all reasonable doubt that the applicant was
subjected to treatment contrary to Article 3, as alleged. In this
connection, the Court does not find persuasive the applicant’s
explanation for the delay which elapsed between his release on 10
December 2001 and his first application for assistance in the local
hospital on 29 December 2001. The Court takes note in this connection
that the applicant failed to draw attention of judge St. of the
Kuybyshevskiy District Court to his allegedly serious medical
condition during their meeting on 10 December 2001 and did not
ask for medical treatment during his stay in the alcohol
rehabilitation clinic during the subsequent three weeks.
- In
addition to these circumstances, the Court would also add that the
forensic examination referred to in the decision of 31 May 2004
questions whether the injuries detected during the medical
examination of 29 December 2001 could be linked to the events of
8 December 2001. Some of them, such as a closed fracture of the front
eighth and ninth left ribs, could have occurred no more than
“two-three weeks prior to [29 December 2001] ...”, whilst
others, such as fractures of left ribs and a right heel bone “took
place over four weeks before” or “in a term not exceeding
(approximately) one month before [29 December 2001]” (see
paragraph 43). In addition, a “bruise on the left side of [the
applicant’s] back” was dated to “no more that two
weeks before [29 December 2001]”. This lack of consistency with
the time of the alleged ill-treatment coupled with the applicant’s
failure to give an intelligible account concerning his conduct
between his release and the first medical examination three weeks
later casts a serious doubt on the veracity of his version of the
events.
- Overall,
the Court concludes that it has not been established beyond
reasonable doubt that the applicant was ill-treated on 8 December
2001. Accordingly, there has been no breach of Article 3 of the
Convention in this respect.
(b) The alleged failure to carry out an
effective investigation
i. General principles
- The
Court reiterates that where an individual makes a credible assertion
that he has suffered treatment infringing Article 3 at the hands of
the police or other similar agents of the State, that provision, read
in conjunction with the State’s general duty under Article 1 of
the Convention to “secure to everyone within their jurisdiction
the rights and freedoms defined in ... [the] Convention”,
requires by implication that there should be an effective official
investigation. As with an investigation under Article 2, such an
investigation should be capable of leading to the identification and
punishment of those responsible. Otherwise, the general legal
prohibition of torture and inhuman and degrading treatment and
punishment would, despite its fundamental importance, be ineffective
in practice and it would be possible in some cases for agents of the
State to abuse the rights of those within their control with virtual
impunity (see Jasar v. the former Yugoslav Republic of Macedonia,
no. 69908/01, § 55, 15 February 2007; Matko v. Slovenia,
no. 43393/98, § 84, 2 November 2006; Labita v. Italy
[GC], no. 26772/95, § 131, ECHR 2000-IV and Assenov and
Others, cited above, § 102).
- The
minimum standards of “effectiveness” defined by the
Court’s case-law also require that the investigation must be
independent, impartial and subject to public scrutiny, and that the
competent authorities must act with exemplary diligence and
promptness (see Isayeva and Others v. Russia, nos.
57947/00, 57948/00 and 57949/00, §§ 208-13, 24 February
2005, and Menesheva v. Russia, no. 59261/00, § 67, ECHR
2006 III).
ii. Application of the above principles in
the present case
- The
Court notes that the parties did not dispute the validity of the
medical report drawn up on 29 December 2001, following the
applicant’s arrest and detention between 8 and 10 December
2001, and confirming the presence of various injuries on the
applicant’s body. The Court further observes that the matter
was duly brought before the appropriate authorities at a time when
they could reasonably have been expected to investigate the
circumstances in question. The applicant’s allegations, which
were detailed and consistent throughout the domestic proceedings and
before this Court, were, at least to some extent, corroborated by a
medical certificate recording injuries to the head, ribcage and heel.
The domestic authorities themselves repeatedly admitted having
serious doubts concerning the lawfulness of the actions of the
policemen on 8 December 2001 (see paragraphs 27 and 39) and it
is moreover clear that the arresting officers themselves admitted to
having used physical force during the applicant’s arrest (see
paragraph 15). The domestic authorities were therefore under an
obligation to conduct an effective investigation satisfying the above
requirements of Article 3 of the Convention.
- In this connection, the Court
notes that the prosecuting authorities, who were made aware of the
applicant’s ill-treatment and subsequent detention, carried out
a preliminary investigation which did not result in a criminal
prosecution. The applicant’s complaints were also subsequently
subject to examination by the domestic courts at two levels of
jurisdiction (see paragraphs 49-50). In the Court’s opinion,
the issue is consequently not so much whether there was an
investigation, since the parties did not dispute that there was one,
but whether it was conducted diligently, whether the authorities were
determined to identify and prosecute those responsible and,
accordingly, whether the investigation was “effective”.
- The Court reiterates that the
applicant was entirely reliant on the prosecutor to gather the
evidence necessary to corroborate his complaint. The prosecutor had
the legal power to interview the police officers and order their
medical examinations, summon witnesses, visit the scene of the
incident, collect forensic evidence and take all other essential
steps to establish the truth of the applicant’s account. The
Court will therefore assess the thoroughness of the investigation. In
this connection, the Court notes a number of significant omissions
capable of undermining its reliability and effectiveness.
- First, the Court is struck by
the fact that even though the applicant complained about the
actions of several police officers, including S., D. B., M. and Sh.,
(see paragraphs 12 and 25), criminal proceedings were opened only
against S. and focused principally on the allegations concerning the
applicant’s mother (see paragraphs 27, 35, 37). The Court finds
that this shortcoming fundamentally incapacitated the investigation,
switching its focus from the use of allegedly excessive force through
the specific actions of the above-mentioned officers in respect of
the applicant and his mother to the general guidance of the operation
by S.
- Second, the Court notes that the initial witness
statements collected by the investigation contained many
inconsistencies which had to be ironed out by meticulous comparison
of these pieces of evidence with one another in relation to specific
details, or possibly by reconstructions. It was important to conduct
this process as quickly as possible whilst memories of what had
happened were still fresh, but also in order to avoid loss of contact
with witnesses. As acknowledged by the investigating authority itself
(see paragraphs 38 and 39), the necessary actions had not been taken
as long as two years later, and in fact they were not conducted at
the domestic level at all. The Court, however,
is mindful of the important role which investigative interviews play
in obtaining accurate and reliable information from suspects,
witnesses and victims and, ultimately, in discovering the truth about
the matter under investigation. Observing the demeanour of the
suspects, witnesses and victims during questioning, and assessing the
probative value of their testimony, forms a substantial part of the
investigative process.
- Third, the Court would note that on 2 June 2004 all of
the previous investigative actions were quashed and declared null and
void because of a breach of domestic procedure at an initial stage of
the investigation. The evidence that was lost as a result was never
recovered, as it appears that the subsequent decision of 11 June 2004
did not rely on any specific piece of evidence, apart from the
statements of the implicated policemen, collected after that date
(see paragraphs 46 and 47).
- Lastly, the Court questions
the overall quality of the investigation which, being fully aware of
the medical certificate confirming the applicant’s injuries
(see paragraph 43) and the report suggesting the use of physical
force by the police (see paragraph 15), throughout the proceedings
never seriously inquired into the origin of these injuries and any
possible relationship between the injuries and the actions of the
policemen during the events of 8 December 2001 (see paragraphs 27,
28-33, 35, 37, 41-43 and 47). In addition to being handicapped
by the previously mentioned and apparently uncorrected defects, and
not being based on any specific pieces of evidence, it failed to
establish the relevant factual circumstances of the case and to
assess whether the police used the physical force during the arrest
and whether it was proportionate.
- Having regard to the
above-mentioned failings on the part of the Russian authorities, the
Court considers that the investigation carried out into the
applicant’s allegations of ill-treatment was ineffective and
insufficient.
- There has accordingly been a violation of Article 3 of
the Convention under its procedural limb on account of the
authorities’ failure to properly investigate the circumstances
of the applicant’s ill-treatment.
II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicant complained that his arrest and
detention between 8 and 10 December 2001 had been unlawful and
arbitrary. He relied on Article 5 of the
Convention, which, in so far as relevant, provides as follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
(a) the lawful detention of a person after
conviction by a competent court;
(b) the lawful arrest or detention of a
person for non-compliance with the lawful order of a court or in
order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order
for the purpose of educational supervision or his lawful detention
for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the
prevention of the spreading of infectious diseases, of persons of
unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a
person to prevent his effecting an unauthorised entry into the
country or of a person against whom action is being taken with a view
to deportation or extradition.”
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
Government contested the applicant’s complaint, arguing that
the investigating authorities and the domestic courts had examined
various aspects of this complaint and had concluded that the
applicant’s detention had been lawful and in full compliance
with domestic legal requirements. They relied in particular on
Articles 158 and 242 of the RSFSR Administrative Offences Code 1984,
which had made acts constituting minor affray an administrative
offence punishable by administrative arrest of up to fifteen days,
and argued that under applicable procedure it had been necessary for
the policemen either to bring the applicant before a judge or to
arrest the applicant in order to put a stop to his unlawful conduct.
They were unable to submit any documents concerning the applicant’s
arrest, subsequent detention and release, and explained this failure
by the expiry of the time-limits for storage of the documents.
- The
applicant disagreed and maintained his initial position.
2. The Court’s assessment
77. The
Court notes, firstly, the undisputed fact that the overall length of
time during which the applicant was held in police custody was about
forty-one hours, i.e. from the applicant’s arrest at around 5
p.m. on 8 December 2001 and until his release on 10 December 2001 at
around 10 a.m. (see paragraphs 8 and 18). The
Government did not contest the applicability of Article 5 to the
applicant’s situation and the Court notes its previous findings
that the applicant was forcibly arrested at his apartment and then
taken to the police station. In view of the above circumstances, the
Court finds that the applicant’s arrest and subsequent
detention constituted a deprivation of liberty within the meaning of
Article 5 § 1 (see Gillan and Quinton v. the United
Kingdom, no. 4158/05, § 57, ECHR 2010 ... (extracts),
and Foka v. Turkey, no. 28940/95, §§ 74-79,
24 June 2008).
- The
Court next notes that the applicant’s deprivation of liberty
did not fall under sub-paragraphs (a), (d), (e) and (f) of paragraph
1 of Article 5. Nor was it covered by sub-paragraph (b), as there is
no evidence that the applicant failed to comply with any lawful court
order or to fulfil any obligation prescribed by law. It remains to be
determined whether the applicant’s deprivation of liberty fell
within the ambit of sub-paragraph (c).
- Turning to the circumstances of the applicant’s
arrest and subsequent detention, the Court notes that the
Government’s explanation manifestly contradicts the course of
events and remains unsupported by the documents submitted.
- The Court notes that the respondent Government were
unable to produce any documents confirming the applicant’s
arrest and subsequent detention, explaining this with reference to
the destruction of the relevant documents due to the expiry of the
time-limit for their storage. In addition, they admitted that the
domestic authorities had made no records in respect of the
applicant’s release. The Court reiterates that the absence of a
record of arrest and detention with an indication of a number of
details such as the date, time and location of detention, the name of
the detainee, the reasons for the detention and the name of the
person effecting it must be seen as incompatible with the requirement
of lawfulness and with the very purpose of Article 5 of the
Convention (see Menesheva, cited above, § 87). The Court
has previously considered that the loss of records is capable of
depriving an applicant of an opportunity to usefully challenge his
arrest and detention (see Boris Popov v. Russia, no. 23284/04,
§§ 74-75, 28 October 2010) and this is precisely
what happened in the present case, where the destruction of the
relevant records demonstrably impeded the pending criminal
investigation at the domestic level, such loss being specifically
mentioned and deplored by the investigative authorities (see
paragraph 37). The storage of the relevant records for at least the
duration of the relevant investigation was thus incumbent on the
national authorities, and it follows that the unavailability of the
record of the applicant’s arrest is imputable to the national
authorities.
- The
Court would reiterate that the case file contains no records in
respect of the applicant’s arrest and there is an
acknowledgement by the Government that his detention remained
undocumented, both as regards his initial arrest and subsequent
release (see paragraph 20). For this reason the exact details of the
applicant’s meeting with a judge on 10 December 2001 as well as
its exact outcome are unclear (see paragraphs 18-19). He was not
found liable by a police authority, nor was there any need to take
the applicant to the police station for a record to be drawn up, as
the relevant record could have easily been produced on the spot (see
paragraph 52). In addition, the Government were unable to produce any
evidence that the police brought any administrative proceedings
against the applicant in connection with the events of 8 December
2001.
- Against
this background, the Court cannot accept the Government’s
account of the reasons underlying the applicant’s arrest and
detention, and finds that the applicant’s arrest was not
“effected for the purpose of bringing [him] before the
competent legal authority on reasonable suspicion of having committed
an offence” and could not be “reasonably considered
necessary to prevent [him] committing an offence or fleeing after
having done so” within the meaning of Article 5 § 1
(c).
- The
Court would note that the case file contains the investigator’s
decision of 8 December 2001 to institute criminal proceedings against
the applicant in connection with the episode involving his neighbour
which took place in April 2001, as well as the investigator’s
decision taken on the next day to apply a measure of restraint in
respect of the applicant in the form of an undertaking not to leave
his place of residence while the criminal proceedings were pending
(see paragraphs 16 and 17). It should be noted, however, that the
documents do not contain any specific information concerning either
the applicant’s arrest, subsequent detention or his release
whilst the case file contains the report which suggests that the
applicant had been arrested on suspicion of having committed “an
administrative offence” (see paragraph 15). Also, the
respondent Government did not rely on these documents or the
mentioned set of criminal proceedings to justify the applicant’s
detention even in part, and the Court finds no reason to do so
either.
- It follows that the applicant’s arrest did not
have any legitimate purpose under Article 5 § 1 and was
accordingly contrary to that provision. There has therefore been a
violation of that Article.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant further complained that the policemen
had entered his home and had broken into his room against his will,
in breach of domestic law. The Court will examine this grievance
under Article 8, which, in its relevant parts, reads as follows:
“1. Everyone has the right to respect
for ... his home ...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
1. The parties’ submissions
- The
Government contested the applicant’s complaint. They argued
that he had failed to exhaust domestic remedies in this connection
and that in any event the policemen had acted in compliance with
domestic law. They had been allowed to enter the common area of the
apartment by Bo., the applicant’s neighbour, whilst the
applicant allegedly came out of the room of his own volition.
According to them, the policemen had not entered any private premises
belonging specifically to the applicant or his family.
- The
applicant disagreed, noting that the policemen had entered his
family’s home by breaking down the door to his room. He further
argued that the applicable law required the policemen to inform a
competent prosecutor of any such actions within twenty-four hours and
that this condition had never been met.
A. Admissibility
- In
so far as the respondent Government submitted that the applicant had
failed to exhaust domestic remedies, the Court reiterates
that the rule of exhaustion of domestic remedies under Article 35 §
1 of the Convention obliges applicants to use first the remedies
which are available and sufficient in the domestic legal system to
enable them to obtain redress for the breaches alleged. The existence
of the remedies must be sufficiently certain both in theory and in
practice, failing which they will lack the requisite accessibility
and effectiveness. Article 35 § 1 also requires that complaints
intended to be brought subsequently before the Court should have been
made to the appropriate domestic body, at least in substance and in
compliance with the formal requirements and time-limits laid down in
domestic law and, further, that any procedural means that might
prevent a breach of the Convention should have been used. However,
there is no obligation to have recourse to remedies which are
inadequate or ineffective (see, for example, Aksoy v.
Turkey, 18 December 1996, §§
51-52, Reports 1996-VI; Akdivar
and Others v. Turkey, 16 September
1996, §§ 65 67, Reports
1996 IV; and, more recently, Cennet
Ayhan and Mehmet Salih Ayhan v. Turkey,
no. 41964/98, § 64, 27 June 2006).
- The
Court has emphasised that the application of the rule of exhaustion
of domestic remedies must make due allowance for the fact that it is
being applied in the context of machinery for the protection of human
rights that the Contracting States have agreed to set up.
Accordingly, it has recognised that Article 35 § 1 must be
applied with some degree of flexibility and without excessive
formalism. It has further recognised that the rule of exhaustion of
domestic remedies is neither absolute nor capable of being applied
automatically; for the purposes of reviewing whether it has been
observed, it is essential to have regard to the circumstances of the
individual case. This means, in particular, that the Court must take
realistic account not only of the existence of formal remedies in the
legal system of the Contracting State concerned but also of the
general context in which they operate, as well as the particular
circumstances of the applicant. It must then examine whether, in all
the circumstances of the case, the applicant did everything that
could reasonably be expected of him or her to exhaust domestic
remedies (see Akdivar and Others,
cited above, § 69; Aksoy,
cited above, §§ 53-54; and Tanrıkulu v.
Turkey [GC], no. 23763/94, § 82, ECHR 1999 IV).
- Turning
to the facts of the case, the Court would note at the outset that the
episode at issue remained undocumented and the parties in the
Strasbourg proceedings disagreed whether the policemen even entered
the applicant’s apartment, let alone forced the door to his
room. These grievances were raised by the applicant properly and in
due time in the context of his complaint to the prosecutor’s
office on 12 December 2001 (see paragraph 25). The prosecutor reacted
by bringing criminal proceedings against the policeman in charge of
the operation, specifically mentioning this episode in his decision
of 8 February 2002. The investigation ended with a decision of 11
June 2004, which entirely rejected the applicant’s version of
events and his complaint in this connection and was later confirmed
by the courts at two levels of jurisdiction.
- In view of the refusal by the authorities to recognise
that the episode even took place, it cannot be said that the domestic
avenues chosen and employed by the applicant, namely the institution
of criminal proceedings against the police officers, were ineffective
or otherwise inappropriate. Given the circumstances of the case, the
Court finds that the applicant made the authorities sufficiently
aware of his allegations and considers that the applicant complied
with the requirement to exhaust domestic remedies.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Whether there was an interference with the
applicant’s Article 8 rights
- The Court notes that the parties were essentially in
agreement that the policemen had entered the common area of the flat
in which the applicant lived at the invitation of his neighbour, Bo.
The parties disagreed, however, as to whether the policemen had
actually entered the private accommodation of the applicant and his
family or whether they had remained confined to the common area of
the flat. In this connection, the Court notes that the final decision
summarising the findings of the investigation remained silent on that
point, whilst the eyewitnesses who were questioned essentially
confirmed the version of events submitted by the applicant, namely
that the policemen forced open the door to the applicant’s room
and some time later took him away (see paragraphs 12 and 31).
- Given
its previous reservations concerning the overall quality of the
investigation and the fact that in their arguments the Government did
not rely on any specific evidence which would corroborate their
factual position, the Court finds it established that the policeman
entered the accommodation belonging to the applicant and his family
by forcing the door, as alleged by the applicant and the witnesses,
and that there was an interference with the applicant’s home
within the meaning of Article 8 § 1 of the Convention.
2. Whether the interference was “in accordance
with the law”
- Under
the Court’s case-law, the expression “in accordance with
the law” within the meaning of Article 8 § 2 requires,
among other things, that the measure should have some basis in
domestic law.
- Turning
to the case at hand, the Court notes that the principal aim of the
police’s visit on 8 December 2001 to the apartment in which the
applicant lived was apparently to serve a summons on the applicant in
connection with an ongoing investigation into a recent incident
involving their neighbour, Bo. The Court is prepared to accept,
therefore, that the police had entered the applicant’s
accommodation within the apartment in pursuit of a suspect within the
meaning of section 11 (18) of the Police Act 1991 (see paragraph
31 above).
- The
case file indicates, however, that the police failed to notify a
prosecutor of the incident and thus manifestly breached the
requirements of that domestic provision. This omission was mentioned
as a finding of fact by supervising prosecutor Mo. in her decision of
8 February 2002 (see paragraph 27) in which she considered that the
policemen had acted unlawfully, whilst all subsequent decisions
passed over this point in silence. Against this background, the Court
concludes that the above requirement of domestic law has not been
complied with and that the interference with the applicant’s
rights under Article 8 was not, therefore, “in accordance with
the law”.
- It
follows that there has been a violation of Article 8 in this case.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained under Articles 5, 6 and 13 of the Convention
that the criminal proceedings against him for affray were unfair in
that the courts wrongly assessed the evidence in the case and that
his detention on remand between 10 June and 15 July 2002 had
been unlawful.
- However,
having regard to the materials in its possession, and in so far as
they fall within its jurisdiction, the Court finds that they do not
disclose any appearance of a violation of the rights and freedoms set
out in the Convention or its Protocols.
- It
follows that this part of the application should be rejected pursuant
to Article 35 §§ 3 (a) and 4 of the Convention.
V. 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 40,000 euros (EUR) in respect of non-pecuniary
damage sustained as a result of the events at issue.
- The
Government argued that the sum claimed by the applicant was excessive
and unjustified.
- The
Court sees no reason to doubt that the applicant suffered distress as
a result of the violations found and that sufficient just
satisfaction would not be provided solely by the finding of a
violation. Making an assessment on an equitable basis as required by
Article 41, the Court awards the applicant EUR 10,000.
B. Costs and expenses
- The
applicant also claimed EUR 2,025 for costs and expenses
incurred before the domestic courts and the Court.
- The
Government viewed his claims under this head as unsubstantiated.
- 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, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 100 covering costs
under all heads.
C. Default interest
- The
Court considers it appropriate that the default interest rate 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 complaints
about the circumstances of the applicant’s arrest of 8 December
2001, his subsequent detention and the quality of the investigation
into these events admissible and the remainder of the application
inadmissible;
- Holds that there has been no violation of the
substantive aspect of Article 3 of the Convention on
account of the events of 8 December 2001;
- Holds that there has been a violation of the
procedural aspect of Article 3 of the Convention
on account of the authorities’ failure to investigate properly
the circumstances of the applicant’s ill-treatment;
- Holds that there has been a
violation of Article 5 of the Convention on account of the
applicant’s arbitrary arrest and detention between 8 and 10
December 2001;
- Holds that there has been a
violation of Article 8 of the Convention on account of the unlawful
entry by the policemen to the applicant’s room on 8 December
2001;
- Holds
(a) that
the respondent State is to pay the applicant,
within three months of the date on which the judgment
becomes final in accordance with Article 44 § 2 of the
Convention, EUR 10,000 (ten thousand euros), in respect of
non-pecuniary damage, and EUR 100 (one hundred euros) in respect of
costs and expenses, plus any tax that may be chargeable to the
applicant on both amounts, 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 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 24 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Peer
Lorenzen
Registrar President
