In the case of Stepanov v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
NinaVajić, President,
AnatolyKovler,
KhanlarHajiyev,
MirjanaLazarova Trajkovska,
JuliaLaffranque,
Linos-AlexandreSicilianos,
ErikMøse, judges,
andSøren Nielsen, Section Registrar,
Having deliberated in private on 4 September 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
33872/05) 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 Ruslan Yuryevich Stepanov (“the
applicant”), on 21 July 2005.
The applicant was represented by Mr A. Zakatov, a
lawyer practising in Petrozavodsk. The Russian Government (“the Government”)
were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human rights.
The applicant alleged, in particular, that he had
been subjected to ill‑treatment in custody and that the ensuing
investigation had not been effective, that his pre-trial detention from
27 March to 10 May 2006 had not been in accordance with procedure
prescribed by law, and that the criminal proceedings against him had not been
fair.
On 8 April 2009the application was communicated
to the Government. It was also decided to rule on the admissibility and merits
of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1979 and lived, prior
to his arrest, in Petrozavodsk. He is a practising martial arts instructor
specialising in kickboxing and Thai boxing.
A. The applicant’s arrest and placement in custody on
the charge of causing grievous bodily harm
On 30 October 2003 the
applicantwas arrested on suspicion of causing grievous bodily harm to an
employee of a tyre shop. According to the prosecution, the crime had been
committed on 17 June 2002 by the applicant, Va., Ku. and Pa.,with intent
to coerce the shop owner into accepting their “security services”.
On the following day the Petrozavodsk Town Court
authorised the applicant’s remand in custody, citing the gravity of the charges
against him and the risk that he would abscond or obstruct the course of
justice. The applicant was placed in a temporary detention centre in Petrozavodsk. He remained in custody pending investigation and trial.
B. The alleged ill-treatment on 12 March 2004 and an
inquiry into the events
On 12 March 2004the applicant was transferred to
a Petrozavodsk Town Police Department temporary detention centre to study the
case file materials. He was placed in cell no. 11 together with eight other
inmates. On the same day he had an altercation with officer N. The parties
presented differing descriptions of the incident.
1. The version of the events provided by the applicant
According to the applicant, at approximately 11
a.m. officer N. opened the cell door and dragged him out of the cell into the
hallway. The applicant did not resist in any way. Several police officers on
duty and the head of the duty unit L., as well as the inmatesof cell
no. 11, witnessed the scene. N. threw the applicant on to the floor,
leaned on him and squeezed his neck, applying force to the carotid artery and
the Adam’s apple. The policeman accompanied his actions with obscene language
and threats. Only the intervention of the head of the duty unit stopped him and
allowed the applicant to stand up. The applicant asked for a meeting with a
prosecutor and for a medical examination. N. again approached the applicant,
threatening him. Afraid for his life and desperately trying to get back into
his cell, the applicant raised his leg, apparently in a non-threatening manner.
He did not hit anyone. However, the police officers, including N., immediately
pinned him to the floor. N. again squeezed the applicant’s neck with both
hands. Officer M. stepped over the applicant’s face. The applicant was dragged
back to his cell. He again unsuccessfully repeated his requests for a medical
examination and a meeting with a prosecutor or a higher‑ranking police
officer. The inmates refused to leave the cell and asked the police officers to
call a doctor. However, their requests were to no avail.
Half an hour later the applicant and Ga., one of the inmates, were taken to see a deputy head of the Petrozavodsk Town Police
Department.The applicant described the incident and showed the injuries on his
neck and chest. Ga. corroborated his version of events. They were promised a
thorough inquiry into the events in question.
The applicant repeated his allegations of
ill-treatment during the subsequent interview with investigator I.After the
interview the applicant was taken back to cell no. 11, where an emergency
doctor was assisting another inmate. According to the applicant, his request
for a medical examination was abruptly dismissed by N.,who was present in the
cell. In the evening of the same day the applicant was transported back to the
remand prison in Petrozavodsk.
2. Official version of events
The official version of the events of
12 March 2004 was summarised in the judgment of 20 December 2004 (see
paragraph 23 below) as follows:
“The [applicant]... and other inmates held in the same cell
asked to be transferred to another cell. He shouted, knocked on the door of the
cell and uttered profanities against the [guards]... . The applicant and other
inmates in cell no. 11 ignored numerous orders of the ... officers to stop
the disturbance... officer N. entered cell no. 11 in order to identify the
instigator and to take him out of the cell... the applicant ... put his arms
around N. to restrain him. Then N. raised the applicant slightly off the floor
and carried him out of the cell into the hallway. The applicant released N. In
the hallway the applicant...threatened N. and kicked him in the head. ... N.
blocked the blow with his left arm. In order to stop the applicant’s illegal
actions ..., N. used physical force against him and threw him to the floor.
While lying on the floor, the applicant continued kicking N. As a result of the
applicant’s actions, N. sustained the following injuries: a blunt injury to the
head and concussion, a blunt injury to the left hand with a finger fracture
coupled with tissue swelling and a bruise ..., as well as bruises on the left
hand and the right arm... . The applicant’s illegal actions were stopped by the
officers.”
3. The ensuing inquiry
On 12 March 2004, the applicant was
examined by a prison doctor, who made the following entry in the medical
record:
“No complaints. Objectively: in the middle and third parts of
the right side of the neck surface [there are] three bruises of an unidentifiable
form, measuring from 2.5 by 1 centimetres to 5 by 2.5 centimetres..., [there
is] a bruise of a similar colour on the front surface of the right side of the
chest situated... closer to the second rib [and] measuring 3 by 2 centimetres.
[There is] a linear abrasion on the back surface of the right hand, measuring
0.8 by 0.1 centimetres.... According [to the applicant], he had an abrasion on
the parietal region of the head; ‘there was a small amount of blood on the
abrasion’. No other visual injuries... have been discovered.”
On the same day N. consulted a neurologist, who
diagnosed him with concussion and a closed fracture of the little finger on the
left hand.
On 17 March 2004 the applicant’s lawyer asked
the town prosecutor’s office to institute criminal proceedings against the
police officers who had allegedly beaten up the applicant.
On 26 March 2004 the deputy head of the
town police department completed an internal investigation into the incident of
12 March 2004. He concluded that the use of force against the applicant
had been lawful. As regards, the events of 12 March 2004, the report
stated as follows:
“... On 12 March 2004 at 11 a.m. [the police officers]
heard loud knocking ... on the door of cell. [11]. ... When [the police
officers] opened the viewing panel, ... inmate Sh. asked to be transferred to
the cell ... where [his relative S.] was being held. It was explained to him
that it was impossible to satisfy his request and the viewing panel was closed.
Some thirty to forty seconds later, [someone] started knocking on the cell door
again, uttering profanities.
Warden L. and officers F., N. and M. approached the cell,
opened the viewing panel to hear Sh.’s demands for a transfer... . The warden
explained that it was impossible to transfer him. Then Sh. claimed that he was
not feeling well, that the panel should remain open, that they should be given
tea and that the smell in the cell was bad. In response, warden L. explained
patiently that, in accordance with the centre’s schedule and in compliance with
sanitary standards the cell was to be cleaned in the evening ... . Then
the warden ordered the door to cell 11 to be opened. Sh. was told to take
his personal effects and move to another cell... .[The applicant], who was, for
no reason, uttering profanities, demonstrating his martial arts skills and
making threats ...,was asked to prepare for a transfer too. The atmosphere in
the cell was heated. Other inmates started making similar demands about tea,
opening up the viewing panel and complaining about a bad smell in the cell. Sh.
and [the applicant] refused to transfer to another cell.
In accordance with [relevant] regulations,... the police
officers informed [the police department] of the situation. When all the
inmates, except for Sh., stepped away from the cell door, officer N. entered
the cell and approached Sh. to take him out of the cell ... . At that moment
[the applicant] assaulted N., trying to drag him further into the cell. N. put
his arms around [the applicant] and carried him out into the hallway, put him
face to the wall on the left and let go of him. The other inmates, led by Sh.,
tried to open the cell door while warden L., officers M. and F. were forcing it
closedfrom the other side... [The applicant], who was standing by the wall,
continued making threats to N. and showing his martial arts skills. Then he
assaulted N., locked N.’s neck with his left arm andpulled him towards himself,
dragging him to the floor. N. got out of the applicant’s lock, pinned [the
applicant] to the floor and restrained him by pressing his arms against the
applicant’s chest. ... [The applicant] stopped resisting and said that he had
calmed down and would behave in the cell. N. let go of him to let [the
applicant] stand up, and stood up himself. At that moment... [the applicant]
kicked N. with his right foot ... in the lower jaw. Trying to cover his face,
N. raised his arm. [The applicant] kicked him again, hitting the fingers on
N.’s left hand... . N. put his arms around [the applicant] and they both fell
to the ground. N. still had his arms around [the applicant] trying to avoid
[the latter’s] kicks... .Officer M. held [the applicant] by the feet. Then [the
applicant] again claimed that he would not resist and would bring the cell back
into order.... The officers let go of [the applicant] and he was taken back
into the cell.”
On 8 April 2004 forensic medical expert U.
completed a report concerning the applicant’s injuries. In particular, he
concluded as follows:
“The applicant sustained the following injuries: a bruise on
the... back of the head, bruises on the right side of the neck surface and the
front of the rib cage on the right, and an abrasion on the right hand. These
injuries could have been caused on 12 March 2004. The bruises on the neck
and the rib cage were caused by an impact from solid blunt objects. The bruises
on the head and the right hand were caused by the impact of blunt objects.”
On 12 April 2004 a senior investigator from
thetown prosecutor’s office questionedthree of the applicant’s fellow inmates
on 12 March 2004. Sh. confirmed the applicant’s version of events. B. alleged
that the applicant had not attacked N. in the cell. He further submitted that
N. had dragged the applicant out of the cell in response to the inmates’
demands to be transferred. He conceded that he could not see what was going on
in the hallway after the applicant had been taken out of the cell. Ga. stated that N. had hit the applicant in the cell and had dragged him out. He could not
see the rest as the police officers had tried to close the door to the cell.
On 13 April 2004 an investigator refused to
institute criminal proceedings against police officers L., M., N. and F.,
finding that the use of physical force by the police officers against the
applicant had been lawful. He relied on the statements made thepolice officers,
several inmates of cell no. 11, and the forensic report on the applicant’s
injuries. The applicant did not appeal.
C. Criminal
proceedings against the applicant
1. The proceedings on the charges of causing grievous
bodily harm to an employee of a tyre shop and assault on a police officer
On 17 March 2004 a senior investigator with the
townprosecutor’s office instituted criminal proceedings against the applicant
on a charge of assault ona police officer. Two days later the applicant was
served with a copy of the relevant decision.
On 3 April 2004 the applicant was placed for
fifteen days in a punishmentcell. He was registered as “an inmate with violent
tendencies and a propensity to abscond”.
On 28 April 2004 the criminal proceedings
against the applicant on the charges of causing grievous bodily harm to an
employee of a tyre shop (see paragraph 6 above) and assault on the police
officer were joined.
On 20
December 2004 the Petrozavodsk Town Court found the applicant guilty as charged
and sentenced him to nine and a half years’ imprisonment. As to the events of
12 March 2004, i.e., the alleged assault on the police officers, the Town Court
relied on the statements given in court by N., warden L., and police officer
P., who had been on duty at the temporary detention centre; on the reports
prepared by police officers N., M. and F., and on the findings of the internal
inquiry of 26 March 2004. The court viewed the video recording of the
incident of 12 March 2004, which corroborated the police officer’s account
of the events. The court also heard inmates Sh. and B. and examined earlier
statements made by inmates D., G. and Ga. The court dismissed their statements
as untrue, noting in addition that B., D. and G. had admitted that they had not
witnessed the altercation between N. and the applicant in the hallway. Lastly,
the court assessed the injuries sustained by the applicant on 12 March 2004
and, with reference to the internal inquiry of 26 March 2004, concluded
that they had not caused any permanent damage tohis health and that the use of
force against the applicant had been lawful.
As to the charge of causing grievous bodily harm
to an employee of a tyre shop, the Town Court based its findings on the
victim’s statement and on theconfession of one of the applicant’s
co-defendantsK., which hemade in court, records of identification parades
during which the victim had identified the perpetrators of the criminal offence
against him, statements by a number of witnesses made in open court, and
physical evidence, including expert opinions, records of scene examinations,
etc. The Town Court also relied on the statement made by Pa., another
co-defendant, admitting that he had committed the criminal offence together
with the applicant. Pa. had died before the trial started. According to the
minutes of the trial hearing, the applicant and his lawyer did not object to
the reading out of Pa.’s statement.
The applicant appealed maintaining his
innocence. He claimed that his guilt had not been proven beyond reasonable
doubt and that the Town Court’s findings were based on inadmissible,
inconclusive and contradictory evidence.
On 21 February 2005 the Supreme Court of the KareliyaRepublic upheld the judgment of 20 December 2004 on appeal, endorsing the reasoning
given by the Town Court.
On 20 December 2005 judge R. of the Supreme
Court of the Russian Federationgranted the application for the supervisory
review of the appeal judgment of 21 February 2005 lodged by the Deputy
Prosecutor General of the Russian Federation. The case was remitted to the
Presidium of the Supreme Court of the KareliyaRepublic.
On 25 January 2006 the Presidium of the Supreme
Court of the KareliyaRepublicnoted that the applicant had not been provided
with an opportunity to study the trial record, and quashed the appeal judgment
of 20 December 2005 by way of supervisory review and remitted the matter
for fresh consideration to the appeal court.
On
27 March 2006 the Supreme Court of the KareliyaRepublicfound that the
trial court had erred when indicating the applicant’s place of birth in the
verdict, quashed the applicant’s conviction and remitted the matter for fresh
consideration to the Town Court.
However, on 17 May 2006 the Presidium of the
Supreme Court of the KareliyaRepublic quashed the judgment of 27 March 2006 by
way of supervisory review and remitted the matter for fresh examination to the
appeal court. The court noted that the trial court’s erroneous indication of
the applicant’s place of birth had not affected the substance of the verdict.
In a new set of appeal proceedings, on 3 July
2006 the Supreme Court upheld the judgment of 20 December 2004.
2. Criminal proceedings on the charges of manslaughter
and aggravated robbery
On an unspecified date the applicant was charged
with manslaughter and aggravated robbery. According to the prosecution, (1) on
6 October 2002 the applicant and several other persons assaulted D. and
beat him to death; (2) on 14 July 2002 the applicant and several other persons
attacked Zh. and took RUB 126,000 from him.
On 16 November 2007 the Town Court found the applicant
guilty of manslaughter and aggravated robbery and sentenced him to nine years’
imprisonment. The Town Court based the conviction on statements by a number of
witnesses, the instigator of the offence and one of the applicant’s
co-defendants given in court, statements made during the pre-trial
investigation by witnesses Kyu., Pe. and Ma., and extensive material evidence.
Kyu., Pe. and Ma. had confessed to committing the manslaughter together with
the applicant. Kyu. had died during the pre-trial investigation. Pe. and Ma.
had absconded and, despite the authorities’ attempts, which included a
nationwide search, were never found. Neither the applicant nor his lawyer
objected to the reading out of Kyu.’s, Pe.’s and Ma.’s statements.
On 28 November 2007 a local newspaper published
an article reporting on the criminal proceedings against the applicant and his
co‑defendants and naming the applicant among the perpetrators of the
manslaughter and robbery.
On 21 January 2008 the Supreme Court of the KareliyaRepublic upheld the judgment on appeal.
D. The applicant’s detention pending the criminal
proceedings against him
Following the applicant’s arrest and placement
in custody pending investigation and trial on the charges of causing a grievous
bodily harm to an employee of a tyre shop and assault on the police officer,
the applicant was found guilty as charged on 20 December 2004 as upheld on
21 February 2005 on appeal. Following the supervisory review of the appeal
judgment, on 27 March 2006 the appeal court quashed the verdict and
remitted the matter for a new trial (see paragraphs 23-29 above). The appeal
court further ordered that the applicant should remain in custody pending
trial.
On 31 March 2006 the Town Court received
the case file.
On 10 May 2006 the Town Court reviewed the applicant’s
pre-trial detention. The applicant argued that he should be released. Relying
on the gravity of the charges, the Town Court extended the applicant’s
detention until 10 August 2006. His argument regarding the alleged unlawfulness
of his detention was dismissed as unsubstantiated. On 22 May 2006 the Supreme
Court of the KareliyaRepublic upheld the decision of 10 May 2006 on appeal.
II. RELEVANT DOMESTIC LAW
A. Federal Law on Detention of Suspects and Defendants
charged with Criminal Offences
Physical force in respect of detainees may be
employed in order to put an end to their misconduct or resistance to legitimate
orders of detention officers if non-forceful alternatives are not feasible
(section 44).
B. Legal provisions governing remand in custody
A defendant can be remanded in custody or his
detention can be extended only on the basis of a judicial decision (Russian
Constitution, Article 22). The court shall make the relevant decision upon a
reasoned request by the prosecutor or the investigator supported by appropriate
evidence (Code of Criminal Procedure, Article 108 § 3) or of its
own motion (Code of Criminal Procedure, Article 108 § 10).
When considering an appeal
lodged by one of the parties to criminal proceedings, the appeal court is
required to decide whether or not a preventive measure, including placement in
custody, should be applied pending a new hearing (Code of Criminal Procedure,
Article 388 § 1).
When quashing the verdict on
appeal and deciding to detain the defendant in custody pending new trial, the
appeal court should indicate the reasonable time-limit of such detention period
or, if the earlier extended detention period has not expired, indicate that
such period should remain unchanged. In any event, the appeal court should
setout the reasons for its decision to remand or to hold the defendant in
custody (Resolution of the Supreme Court of the Russian Federation no. 28
of 23 December 2008, section 23).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant complained that the police
officers had subjected him to ill-treatment on 12 March 2004 and that the
ensuing investigation had not been effective. He relied on Article 3 of the
Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading
treatment or punishment.”
A. Admissibility
1. The parties’ submissions
The Government submitted that the applicant had
failed to exhaust domestic remedies in respect of his allegations concerning
the ill-treatment in custody and the ensuing investigation. In particular, he
had not appealed to a court against the investigator’s refusal to open a
criminal case against the alleged perpetrators. The fact that the applicant had
raised the issue of ill-treatment in the course of the criminal proceedings
against him was of no relevance, given that the task incumbent on the trial
court was to determine whether or not the applicant was guilty of the offences
with which he had been charged. It was not within the trial court’s competence
to hold the alleged perpetrators liable and/or to award compensation to the
applicant for the alleged wrongdoing. Nor did the applicant plead before the
trial court that the inquiry into his allegations had not been thorough or ask
the trial court to conduct further inquiry. Lastly, the Government observed
that the applicant had been represented by an experienced criminal lawyer and
it would not have been excessively burdensome for him to lodge an appeal
against the investigator’s decision, which would be a normal avenue of
exhaustion of remedies in respect of his complaint. Nevertheless, he had failed
to explain why he had chosen not to do so.
The applicant considered that an appeal against
the investigator’s decision would have been to no avail.
2. The Court’s assessment
In the instant case, the Court observes that,
instead of pursuing a normal avenue of appeal against the investigator’s
decision of 13 April 2004 by submitting his complaint about it to a
district court in a separate set of proceedings, the applicant raised the
ill-treatment issue before the same court during the criminal proceedings
against him for assault on a police officer. It was his line of defence against
the charge of assault that he had been ill-treated rather than having assaulted
the police officer. The court took cognisance of the merits of the applicant’s
complaint, reviewed the investigator’s findings summed up in his decision of
13 April 2004, questioned the applicant, the inmates detained together
with him on 12 March 2004 and the police officers involved, and ruled that
there was no case to answer against the latter. Its findings were upheld by the
court at second level of jurisdiction on appeal.
The Court has earlier held, as has been pointed
out by the Government,that in respect of complaints of ill-treatment in police
custody it is normally incumbent on an applicant to appeal against a refusal by
the investigating authorities to institute criminal proceedings against alleged
perpetrators, given thatin the Russian legal system the power of a court to
reverse a decision not to institute criminal proceedings is a substantial
safeguard against the arbitrary exercise of powers by the investigating
authorities (see Trubnikov
v. Russia (dec.), no. 49790/99, 14 October 2003).
In this respect, the Court reiterates that
non-exhaustion of domestic remedies cannot be held against the applicant if, in
spite of the latter’s failure to observe the formalities prescribed by law, the
competent authority has nevertheless examined the substance of the claim (see, mutatis
mutandis, Dzhavadov v. Russia, no. 30160/04, § 27,
27 September 2007; Skałka
v. Poland (dec.),no. 43425/98, 3 October 2002; Metropolitan
Church of Bessarabia and Others v. Moldova (dec.),
no. 45701/99, 7 June 2001; and Edelmayer v. Austria
(dec.), no. 33979/96, 21 March 2000).
The Court finds in the particular circumstances
of the present case that, by raising before the trial and appeal courts the
defenceof ill-treatment and the inadequacy of its investigation against the
accusations brought against him, the applicant provided the domestic
authorities with the opportunity to put right the alleged violation and thus
cannot be said to have failed to exhaust domestic remedies. Besides, in the
Court’s view, it was indispensable for the proper administration of justice
that the trial court assessed the applicant’s allegations of ill-treatment in
the context of determining the criminal charges against him on the count of
assault on the police officer. The Court is not convinced, accordingly, that a
challenge to the investigator’s decision through the avenue of a separate set
of proceedings before the same courts would have served any purpose.
Having regard to the above, the Court considers
that the applicant cannot be said, in the particular circumstances, to have
failed to exhaust domestic remedies because he did not lodge a separate
judicial complaint against the investigator’s decision of 13 April 2004.
Thus, the Government’s objection as to the non-exhaustion
of domestic remedies should, in the present case, be dismissed.
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 submitted that the applicant’s
rights set out in Article 3 of the Convention had not been violated by the
actions of the national authorities. The use of force against the applicant was
strictly necessary and was called for by the applicant’s unruly and threatening
behaviour. The injuries he had sustained had not been serious. His allegations
of ill-treatment had been subjected to prompt, thorough and comprehensive
investigation.
The applicantmaintained his complaint. He
considered that his allegations of ill-treatment had been completely ignored by
the authorities, resulting in his wrongful conviction.
2. The Court’s assessment
(a) Alleged ill-treatment
The Court has stated on many occasions that
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 and degrading treatment or punishment, irrespective of the victim’s
conduct (see, among many other authorities, Labita v. Italy [GC], no.
26772/95, § 119, ECHR 2000-IV, and Selmouni
v. France [GC], no. 25803/94, § 95, ECHR 1999-V).
In the context of detainees, the Court has
emphasised that those in custody are in a vulnerable position and that the
authorities are under a duty to protect their physical well-being (see Tarariyeva v. Russia, no.
4353/03, § 73, ECHR 2006-... (extracts); Sarban v. Moldova, no. 3456/05,
§ 77, 4 October 2005; and Mouisel
v. France, no. 67263/01, § 40, ECHR 2002-IX). In respect of a
person deprived of his liberty, any recourse to physical force which has not
been made strictly necessary by his own conduct diminishes human dignity and is
in principle an infringement of the right set forth in Article 3 of the Convention
(see Sheydayev v. Russia,
no. 65859/01, § 59, 7 December 2006, and Ribitsch v. Austria, 4 December
1995, § 38, Series A no. 336). The burden of proof rests on the Government to
demonstrate with convincing arguments that the use of force, which resulted in
the applicant’s injuries, was not excessive (see, for example, Dzwonkowski
v. Poland, no. 46702/99, § 51, 12 April 2007).
Turning to the circumstances of the present
case, the Court observes that it is not disputed by the parties that on 12
March 2004 the applicant sustained the injuries as a result of the use of force
against him by the remand prison personnel. The Court takes cognisance of the
Government’s argument that those injuries were not serious. However, this alone
cannot rule out the possibility that the treatment was severe enough to be
considered inhuman or degrading. The Court considers that the abrasions and
bruises noted by the prison doctor indicated that the applicant’s injuries
were, as such, sufficiently serious. Accordingly, the question before the Court
in the instant case is whether the State should be held responsible under
Article 3 in respect of these injuries.
Having regard to the material in its possession
and to the parties’ submissions before it, the Court considers that the use of
force against the applicant did not go beyond what could be considered
necessary in the circumstances of the case in response to the applicant’s
unruly and threatening behaviour.
The Court accepts the national authorities’
assessment of the incident of 12 March 2004 and their conclusion that the
police officers had used force against the applicant to subdue him and to put a
stop to his attack on officer N. The Court notes that the police officers
outnumbered the applicant. However, it does not lose sight of the fact that the
applicant was a practising martial arts instructor and that he had effectively
resisted the legitimate actions of the police officers by refusing to comply
with their verbal demands to stop the unruly behaviour, and by assaulting one
of them (see, by contrast, Rehbock v. Slovenia, no. 29462/95, § 72,
ECHR 2000‑XII).
Thus, the Court concludes that on 12 March
2004 the police officers’ actions aimed at putting an end to the applicant’s
unruly behaviour and assault on officer N. did not amount to inhuman and
degrading treatment contrary to Article 3 of the Convention. While the
applicant experienced certain mental and physical suffering as a result of the
altercation with the officers, the use of force against him cannot be held to
have been excessive.
Accordingly, there has been no violation of
Article 3 of the Convention with regard to the alleged ill-treatment by the
police on 12 March 2004.
(b) Adequacy of the investigation
The Court reiterates that
where an individual raises an arguable claim that he has been seriously
ill-treated by police or other such agents of the State unlawfully and in
breach of Article 3, 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. This investigation should be capable of leading to the
identification and punishment of those responsible (see Assenov
and Others, cited above, § 102).
An obligation to investigate “is not an
obligation of result, but of means”: not every investigation should necessarily
be successful or come to a conclusion which coincides with the claimant’s
account of events; however, it should in principle be capable of leading to the
establishment of the facts of the case and, if the allegations prove to be
true, to the identification and punishment of those responsible (see Paul
and Audrey Edwards v. the United Kingdom, no. 46477/99, § 71,
ECHR 2002-II, and Mahmut
Kaya v. Turkey, no. 22535/93, § 124, ECHR 2000-III).
An investigation into serious allegations of
ill-treatment must be thorough. That 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 for
their decisions (see Assenov
and Others, cited above, §§ 103 et seq.). They must take all
reasonable steps available to them to secure evidence concerning the incident,
including,
inter alia, eyewitness testimony and forensic evidence (see, mutatis
mutandis, Salman
v. Turkey [GC], no. 21986/93, § 106, ECHR 2000-VII; Tanrıkulu
v. Turkey [GC], no. 23763/94, §§ 104 et seq., ECHR 1999-IV; and Gül
v. Turkey, no. 22676/93, § 89, 14 December 2000). Any
deficiency in the investigation which undermines its ability to establish the
cause of injuries or the identity of those responsible for them will risk
falling foul of this standard.
Furthermore, the investigation must be
expeditious. In cases examined under Articles 2 and 3 of the Convention,
where the effectiveness of the official investigation is at issue, the Court
has often assessed whether the authorities reacted promptly to the complaints
at the relevant time (see Labita,
cited above, §§ 133 et seq.). Consideration has been given to the starting
of investigations, delays in taking statements (see Timurtaş
v. Turkey, no. 23531/94, § 89, ECHR 2000-VI, and Tekin
v. Turkey, 9 June 1998, § 67, Reports
1998-IV), and the length of time taken to complete the initial
investigation (see Indelicato
v. Italy, no. 31143/96, § 37, 18 October 2001).
Turning to the facts of the present case, the
Court observes that, in order to elucidate the circumstances of the altercation
between the applicant and the police officers, the authorities promptly
conducted an internal investigation and an inquiry in response to the
applicant’s complaint lodged on 17 March 2004. The applicant’s allegations
were subsequently subjected to examination by domestic courts at two levels of
jurisdiction. The final decision on the matter was taken on 3 July 2006.
The Court accepts that the authorities’ response to the incident was prompt and
expeditious.
The Court further observes that the authorities
took all the steps necessary to look into the applicant’s accusations. They
questioned the applicant, other inmates detained together with him and the
police officers involved in the incident, and studied the reports prepared by
them and the results of the forensicmedical examinations. The judicial
authorities reviewed the materials of the inquiries, questioned the witnesses
both for the prosecution and the defence. The Court discerns nothing in the
materials in its possession to suggest that the domestic authorities’ findings
in respect of the applicant’s allegations were unreasonable or lacking a basis in
evidence.
The foregoing
considerations are sufficient to enable the Court to conclude that the
investigation of the applicant’s complaint of ill-treatment in police custody
was “effective”. There has therefore been no violation of Article 3 of the
Convention under its procedural limb.
II. ALLEGED VIOLATION OF ARTICLE 5 OF THE
CONVENTION
The applicant complained that his pre-trial
detention from 27 March to 10 May 2006 had been incompatible with the
requirements set forth in Article 5 § 1 (c) of the
Convention which reads 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:...
(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.”
The Government contested that argument. They
submitted that on 27 March 2006 the appeal court, when quashing the
applicant’s conviction and remitting the matter for a new trial, had extended
the applicant’s pre-trial detention “in accordance with a procedure prescribed
by law” and full compliance with Article 5 § 1 (c) of the
Convention.
The applicant maintained his complaint.
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
72. The
Court reiterates that the expressions “lawful” and “in accordance with a
procedure prescribed by law” in Article 5 § 1 essentially refer back to national law and state the
obligation to conform to the substantive and procedural rules thereof. While,
in the first place, it is normal for the national authorities, notably the
courts, to interpret and apply domestic law, it is otherwise in relation to
cases where, as under Article 5 § 1,
failure to comply with that law entails a breach of the Convention. In such
cases the Court can and should exercise a certain power to review whether
national law has been observed (see, among other authorities, Douiyeb
v. the Netherlands [GC], no. 31464/96, §§ 44-45, 4 August
1999).
Furthermore, the “lawfulness” of detention under domestic law is
not always the decisive element. The Court must in addition be satisfied that
detention during the period under consideration was compatible with the purpose
of Article 5 § 1 of the Convention, which is to prevent people from being
deprived of their liberty in an arbitrary fashion (see, among other recent
authorities, Bakhmutskiy
v. Russia, no. 36932/02, § 109, 25 June 2009).
The Court further reiterates that a court’s
decision to maintain a custodial measure would not breach Article 5 § 1
provided that the trial court “had acted within its jurisdiction... [and] had
the power to make an appropriate order”. However, “the absence of any grounds
given by the judicial authorities in their decisions authorising detention for
a prolonged period of time may be incompatible with the principle of protection
from arbitrariness enshrined in Article 5 § 1 (see Khudoyorov
v. Russia, no. 6847/02, § 135 in
fine, ECHR 2005-X (extracts)).
Turning to the circumstances of the present
case, the Court observes that on 27 March 2006 the Supreme Court of the KareliyaRepublicquashed the applicant’s conviction on appeal and remitted the matter for a new
trial. The Supreme Court also noted that the applicant should remain in custody
pending a new consideration of the criminal charges against him.
The Court accepts that on 27 March 2006 the
Supreme Court of the KareliyaRepublicacted within its powers in deciding to
maintain the applicant’s detention pending trial. However, the Court cannot but
notice that the Supreme Court failed to indicate the time-limit for the
applicant’s detention or provide any reason for ordering that detention.
. In
this connection the Court takes cognisance of the interpretation of the
relevant provisions of the Russian Code of Criminal Procedure provided by the
Supreme Court of the Russian Federation wherein the latter unequivocally stated
that the law required that, when deciding on the extension of a defendant’s
detention, the court should specify its time-limit and cite grounds for it (see
paragraph 42 above).
. Having
regard to the above, the Court rejects the Government’s argument that the
applicant’s detention during the period in question was “in accordance
with a procedure prescribed by law”. It therefore
considers that the applicant’s detention from 27 March to
10 May 2006 has been incompatible with the requirements set forth in
Article 5 § 1 (c) of the Convention.Accordingly
there has been a violation of that provision.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION
The applicant further complained that the
criminal proceedings against him on the charges of causing grievous bodily harm
to an employee of a tyre shop and assault on the police officer had been
unfair.He relied on Article 6 of the Convention which, in so far as relevant,
reads as follows:
“In the determination of ... any criminal charge against him,
everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
The Government contested that argument.They
considered that the applicant had been dissatisfied with the outcome of the
criminal proceedings against him and that his complaint had been of a
fourth-instance nature. There was nothing in the materials of the casefile to
disclose any unfairness in the way the national courts had taken and assessed the
evidence.
The applicant maintained his complaint. He
insisted that the domestic courts had erred in assessing the evidence and
wrongly convicted him.
The Court notes that it is not its task to act as
a court of appeal or, as is sometimes stated, as a court of fourth instance, in
respect of the decisions taken by domestic courts. It is the role of the
domestic courts to interpret and apply the relevant rules of procedural or
substantive law. Itis the domesticcourts which are best placed to assess the credibility of
witnesses and the relevance of evidence to the issues in the case. It is also
for the domestic courts to exclude evidence which is considered to be irrelevant
(see, among many other authorities, Vidal v. Belgium, 22 April 1992, § 32,
Series A no. 235‑Band Edwards v. the
United Kingdom, 16 December 1992, § 34, Series A no. 247-B).
To that end, the Court observes that the
applicant’s conviction on the charges of causing grievous bodily harm to an
employee of a tyre shop and assault on the police officer was based on
extensive documentary, witness and forensic evidence. The trial court’s
findings were subject to examination by the appeal court which found them
well-reasoned and upheld them. The Court also observes that the applicant was
duly represented throughout the proceedings and was, therefore, afforded ampleopportunity, which he took, to state his case before the
domestic courts and to challenge the admissibility and use of the evidence.
In sum, the Court considers thatthe applicant’s
complaints relating to the “fairness” of his trial are manifestly
ill-founded.It follows that this part of the application must be rejected in
accordance with Article 35 §§ 1, 3 (a) and 4 of the Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the applicantraised a number of
complaintsconcerninga placement in a disciplinary cell, an inability to
confront certain witnesses and the alleged unfairness of the criminal
proceedings against him concerning the charges of manslaughter and robbery.
However, having regard to all the material in
its possession, the Court finds that the events complained of 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 must
be rejected as manifestly ill-founded 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 a sum ranging between
187,019 and 235,027euros (EUR) in respect of pecuniary damage covering his and
his parents’lost earnings and other losses sustained by his family as a result
of the criminal prosecution against him. He also claimed EUR 150,000 in
respect of non-pecuniary damage.
The Government considered the applicant’s claim
excessive and unsubstantiated. They further proposed that the finding of a
violation would constitute sufficient just satisfaction.
The Court does not discern any causal link
between the violation found and the pecuniary damage alleged; it therefore
rejects this claim. As regards the non-pecuniary damage sustained by the
applicant, the Court considers that it cannot be sufficiently compensated for
by the finding of a violation. Making its assessment on an equitable basis and
having regard to the particular circumstances of the case, the Court awards the
applicant EUR 5,000 in respect of non-pecuniary damage.
B. Costs and expenses
The applicant also claimed compensation in the
amount of EUR 1,519for the services of the lawyers who represented him in
the domestic criminal proceedings. He further submitted copies of receipts for
the amount of 12,851 Russian roubles in respect of postal and translation costs
incurred before the Court.
The Government considered that the applicant’s
claim should be rejected.
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. The Court considers it reasonable to award the sum of
EUR 300 for postal and translation costs.
C. Default interest rate
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
1. Declares the complaint concerning the alleged
ill-treatment in police custody and the ensuing investigation and the alleged
unlawfulness of his pre-trial detention from 27 March to 10 May 2006
admissible and the remainder of the application inadmissible;
2. Holds that there has been no violation of
Article 3 of the Convention under its substantive limb;
3. Holds that there has been no violation of
Article 3 of the Convention under its procedural limb;
4. Holds that there has been a violation of
Article 5 § 1 (c) of the Convention in respect of the applicant’s
pre-trial detention from 27 March to 10 May 2006;
5. 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, the
following amounts, to be converted into Russian roubles at the rate applicable
at the date of settlement:
(i) EUR 5000 (five thousand euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 300 (three hundred euros), plus any tax
that may be chargeable to the applicant, in respect of costs and expenses;
(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;
6. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 25 September
2012, pursuant to Rule77§§2 and3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
